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SJC-11998

                COMMONWEALTH   vs.   MICHAEL S. BOYD.



       Middlesex.      January 11, 2016. - April 8, 2016.

  Present:   Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
                           & Hines, JJ.


    Firearms.   Practice, Criminal, Sentence, Nolle prosequi.



     Indictments found and returned in the Superior Court
Department on October 28, 2008.

     The cases were tried before Sandra L. Hamlin, J., and a
motion to correct sentence, filed on May 4, 2014, was heard by
her.

     The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.


     James M. Fox for the defendant.
     KerryAnne Kilcoyne, Assistant District Attorney, for the
Commonwealth.
     Chauncey B. Wood & Timothy St. Lawrence, for Massachusetts
Association of Criminal Defense Lawyers, amicus curiae,
submitted a brief.


    CORDY, J.   The defendant, Michael Boyd, was convicted on

counts of an indictment charging two sentencing enhancements,
                                                                    2


one as a second-time offender, see G. L. c. 269, § 10 (d), and

one under the Massachusetts armed career criminal (ACC) statute,1

see G. L. c. 269, § 10G (c), both premised on an underlying

conviction of unlawful possession of a sawed-off shotgun, in

violation of G. L. c. 269, § 10 (c).   The Commonwealth moved for

sentencing consistent with the fifteen- to twenty-year term of

imprisonment required by the ACC statute, while the defendant

recommended a lesser punishment, also within the range afforded

by the ACC statute.2   See G. L. c. 269, § 10G (c).   The defendant

was sentenced to a term of from fifteen to seventeen years in

State prison on the ACC enhancement and was not sentenced on the

second offender enhancement.

     The defendant appealed from the ACC conviction, arguing

that the Commonwealth's evidence was insufficient to support a

sentence enhancement under that provision.   In an unpublished

memorandum and order pursuant to its rule 1:28, the Appeals

Court agreed, reversing the conviction and remanding the case

for resentencing.   See Commonwealth v. Boyd, 85 Mass. App. Ct.

1106 (2014).   The Appeals Court's decision ostensibly left the

defendant with convictions of unlawful possession of a sawed-off

     1
       The armed career criminal indictment charged that the
defendant had been previously convicted of three violent crimes,
subjecting him to an enhanced sentence.
     2
       The Commonwealth moved for a sentence of from eighteen to
twenty years, and the defendant recommended a term of from
fifteen years to fifteen years and one day.
                                                                   3


shotgun, which carries a sentencing range of from eighteen

months to life, see G. L. c. 269, § 10 (a), (c); and the second

offender enhancement conviction for the same offense, which

carries a mandatory term of imprisonment in State prison of

between five and seven years, see G. L. c. 269, § 10 (d).

     On remand, the case presented a unique circumstance:    a

statute that affords greater potential punishment for an

underlying crime than for a subsequent offense.   Consequently,

at the resentencing hearing, the defendant argued that he should

be sentenced under the enhancement statute, while the

Commonwealth sought the imposition of a longer sentence on the

underlying crime.   The Commonwealth, over defense objection,

entered a nolle prosequi of the second offender enhancement

charge,3 and the judge sentenced the defendant to a term of from

twelve to fifteen years on the underlying conviction of unlawful

possession of a sawed-off shotgun.

     In his present appeal, the defendant argues that it was

error for the resentencing judge to allow the Commonwealth to

avail itself of the nolle prosequi procedure after the initial

sentencing had already occurred, particularly where such a

decision exposed him to a greater potential punishment.



     3
       The defendant argued that allowing the Commonwealth to
enter a nolle prosequi on a conviction after both verdict and
sentence had been entered would subject him to double jeopardy.
                                                                     4


       In Commonwealth v. Richardson, 469 Mass. 248, 249 (2014),

decided one month after the resentencing in the present case, we

established that, absent legislative intent to the contrary, "a

defendant may be sentenced under only one sentencing enhancement

statute," even if he or she was convicted pursuant to multiple

such provisions.    The Commonwealth, however, is free to charge a

defendant under multiple sentencing enhancement statutes, and if

it secures multiple convictions, it may, prior to sentencing,

"exercise its prosecutorial prerogative to decide which

enhancement provision will apply . . . by entering a nolle

prosequi of all but one sentencing enhancement count."     Id. at

254.    Because in Richardson the Commonwealth had not exercised

its nolle prosequi authority prior to sentencing, and because

the judge sentenced the defendant under two sentencing

enhancement provisions, we remanded the case for resentencing,

concluding that, "[w]here . . . the Commonwealth did not

exercise its authority to enter a nolle prosequi of one of the

enhancement counts before sentencing, the decision regarding

which sentence will survive on remand rests with the sentencing

judge."   Id. at 249, 251-252, 254-255.

       Consistent with our holding in Richardson, we conclude that

the judge's original sentencing on one of two possible

enhancement convictions (ACC enhancement) effectively acted as a

dismissal of the other (second offender enhancement).    Thus, the
                                                                      5


Commonwealth's attempt to enter a nolle prosequi with respect to

the second offender enhancement conviction, after the remand, is

moot as duplicative.    The underlying conviction of possession of

a sawed-off shotgun, however, remained viable, and where the

judge on resentencing sentenced the defendant on that

conviction, we affirm the sentence as imposed.4,5

     1.   Background.   a.   Underlying crimes.   The circumstances

underlying the defendant's conviction are not in dispute, and

they also are not at issue in his appeal.    To give context, we

present a brief recitation of the facts precipitating the

defendant's arrest and his subsequent convictions.

     On September 24, 2008, the Framingham police responded to a

report of a domestic dispute involving the defendant and his

pregnant girl friend.    The officers discovered that the

defendant had taken custody of the couple's two children, so

they proceeded to the defendant's apartment to remove the

children and to arrest the defendant.    The defendant refused to

come outside, and the officers heard children screaming.     When

the police sought to enter the home by force, the defendant



     4
       See Commonwealth v. Woodward, 427 Mass. 659, 683 (1998),
quoting Commonwealth v. Coleman, 390 Mass. 797, 804 (1984) ("it
is not within [our] power . . . to review an otherwise lawful
sentence").
     5
       We acknowledge the amicus brief submitted by the
Massachusetts Association of Criminal Defense Lawyers.
                                                                     6


fired a shotgun through the window.     The police returned fire,

wounding the defendant.   They subsequently arrested him.

     b.   Procedural history.   The defendant was named in

indictments setting forth a total of ten different offenses.        In

addition to the conviction of unlawful possession of a sawed-off

shotgun, in violation of G. L. c. 269, § 10 (c), the jury

returned guilty verdicts on indictments charging unlawful

possession of ammunition without a firearm identification card,

in violation of G. L. c. 269, § 10 (h); two counts of reckless

endangerment of a child, in violation of G. L. c. 265, § 13L;

unlawful possession of a loaded sawed-off shotgun, in violation

of G. L. c. 269, § 10 (n); and unlawful discharge of a firearm,

in violation of G. L. c. 269, § 12E.6

     After evidence was presented at a separate jury-waived

portion of the bifurcated trial that established the defendant's

prior criminal history, the defendant was convicted of two

separate sentencing enhancements (as a subsequent offender and

as an armed career criminal) for both the shotgun possession

conviction and the ammunition possession conviction.     The


     6
       The defendant was found not guilty on one indictment
charging assault and battery of a pregnant person and two
indictments charging assault by means of a dangerous weapon.
The jury were unable to reach a unanimous verdict on the charge
of armed assault with intent to murder, in violation of G. L.
c. 265, § 18 (b). The judge declared a mistrial with regard to
that indictment, and the Commonwealth subsequently entered a
nolle prosequi, dismissing the charge.
                                                                   7


defendant was sentenced to concurrent terms of from fifteen to

seventeen years on those convictions, consistent with the

provisions of the ACC statute, and to a subsequent ten years of

probation for each of the remaining charges, to run concurrently

with each other and from and after the prison sentence.    No

sentence was imposed on the second offender enhancement

convictions.

     At the resentencing hearing on July 10, 2014, after the

defendant had successfully challenged his armed career criminal

status, see Boyd, 85 Mass. App. Ct. at 1106, the parties

mutually agreed to dismiss the possession of ammunition charge

as duplicative.   The Commonwealth also sought to enter a nolle

prosequi of the subsequent offender enhancement portion of the

indictment charging possession of a sawed-off shotgun.     The

defendant objected, but the resentencing judge allowed the nolle

prosequi and sentenced the defendant to a term of from twelve to

fifteen years in State prison for the underlying crime.7    The

defendant appealed.8   We transferred the case from the Appeals

Court on our own motion.


     7
       The ten-year probation sentences imposed on other
convictions, to run from and after the prison sentence, were not
addressed at resentencing.
     8
       The defendant subsequently filed a motion to revise and
revoke the sentence, again arguing that it was improper to enter
a nolle prosequi after the imposition of a sentence.
Specifically, the defendant argued that the new sentence
                                                                   8


     The defendant argues that it was error for the resentencing

judge to allow the Commonwealth to exercise its nolle prosequi

authority at the resentencing hearing for two reasons, and the

resentencing judge was therefore required to sentence the

defendant under the subsequent offender enhancement provision on

the charge of possession of a sawed-off shotgun:    first, that

the nolle prosequi was time barred because sentencing had

already occurred; and, second, that the Commonwealth's nolle

prosequi circumvented legislative intent in establishing the

penalty structure for the underlying charge and the enhancement

of which the defendant was convicted.

     2.   Discussion.   Generally speaking, the Commonwealth has

"absolute" authority "to enter a nolle prosequi" at any point

"before sentencing," see Mass. R. Crim. P. 16 (a), 378 Mass. 885

(1979) ("prosecuting attorney may enter a nolle prosequi on

pending charges at any time prior to the pronouncement of

sentence"), "either as to an entire indictment or . . . count

thereof, or any distinct and substantive part of it."

Commonwealth v. Massod, 350 Mass. 745, 748 (1966).9   Where the



"diverges from legislative intent and the interests of justice."
The motion judge (who was different from the trial judge, who
had retired in the interim period) denied the motion. The
defendant did not file a notice of appeal with regard to the
motion.
     9
       The defendant argues that the Commonwealth, if it were to
enter a nolle prosequi on any portion of the conviction against
                                                                    9


Commonwealth does not exercise its authority to enter a nolle

prosequi prior to sentencing, the judge "must exercise

discretion to craft the most appropriate individualized sentence

within the bounds of the applicable criminal statutes"

(quotations omitted).   Commonwealth v. Rivas, 466 Mass. 184,

190-191 (2013).

    In the context of multiple convictions under sentencing

enhancement statutes, the Commonwealth's prosecutorial

prerogative over which enhancement is available for sentencing

ends when the defendant appears before the judge for sentencing.

See Richardson, 469 Mass. at 254.   At that point, in the absence

of a nolle prosequi, the sentencing judge has the discretion to

select one enhancement conviction before levying a punishment.

Id. at 254-255.   The judge's decision has the effect of

determining which sentence enhancement "survive[s]" for purposes

of appeal and any potential remand.   See id. at 255.    The

adverse effect is that the sentencing enhancement not selected

by the judge is dismissed, similar to when a nolle prosequi is

entered prior to sentencing.

    The result in the present case is that the defendant was no

longer subject to the second offender sentence enhancement after



the defendant, was required to dismiss it in its entirety. This
argument is rendered moot by our holding, see note 11, infra,
but we note that the Commonwealth is entitled to enter a nolle
prosequi as to discrete portions of charges.
                                                                   10


the case was remanded.     See Boyd, 85 Mass. App. Ct. 1106.10   That

is, the judge's initial sentencing of the defendant under the

ACC statute effectively dismissed the second offender portion of

the indictment.     Therefore, after the ACC charge had been

reversed, the resentencing judge was left to craft a sentence

based on the only remaining charge associated with G. L. c. 269,

§ 10:     the underlying crime.   As a result, the Commonwealth need

not have -- and indeed could not have -- exercised its nolle

prosequi authority to dismiss the second offender enhancement in

order to subject the defendant to punishment under the

underlying crime.11




     10
       The same is not true of the underlying charge, under
which the judge was still permitted to sentence the defendant.
See Commonwealth v. Johnson, 447 Mass. 1018, 1019 (2006)
(sentencing enhancement statutes "do not create independent
crimes"). The underlying crime and the sentencing enhancement
statute were not duplicative, so dismissal of one was not
required, compare Commonwealth v. Rivas, 466 Mass. 184, 185
(2013), nor was it incumbent on the sentencing judge to select
which of the convictions would "survive," see Commonwealth v.
Richardson, 469 Mass. 248, 255 (2014).
     11
       Our conclusion renders moot the defendant's concerns
related to elective dismissal at resentencing. The defendant
argues that the Commonwealth's ability to nol pros was time
barred after resentencing, and also asserts that allowing the
Commonwealth to nol pros the subsequent offender enhancement
provision on remand offends the notion of double jeopardy.
Because we conclude that there was no subsequent offender
enhancement available for the Commonwealth on which to enter a
nolle prosequi at the resentencing hearing, and it was therefore
error for the sentencing judge to accept entry of that nolle
prosequi, we need not reach these issues.
                                                                   11


    This case presents the circumstance in which our holding

will inure to the benefit of the Commonwealth.    Due to the

peculiarity of the sawed-off shotgun possession statute, G. L.

c. 269, § 10, which affords a greater potential punishment for

first-time offenders than does the second offender charge for

the same offense, the Commonwealth was able to secure a more

severe penalty after the second offender charge had been vacated

than it would have been able to had the charge remained.    In a

more common scenario, the dismissal on appeal of the sentencing

enhancement provision under which a defendant has been sentenced

would protect the defendant from an enhanced punishment on

remand, based on the same underlying offense.

    The defendant argues that, even if it was appropriate to

sentence him for the underlying crime, his sentence under that

statute was excessive.    The defendant contends that a closer

reading of the tiered penalty structure for possession of a

sawed-off shotgun under G. L. c. 269, § 10 (c), reveals that the

Legislature intended a first-time offender to have a sentence of

less than five years.    The argument implies that, because the

subsequent offender provisions for the underlying crime each

subject an offender to a progressively serious potential

penalty, based on the number of offenses, the Legislature must

have intended a first-time offender to be subject to less

punishment than any subsequent offender.
                                                                   12


    We conclude that the defendant's statutory interpretation

argument is inapt; the statute is not ambiguous, nor was the

judge's interpretation of that statute in handing down a

sentence in excess of seven years inappropriate.   While the

statute is no doubt unusual, there can be no misconstruing the

language of the Legislature:   first-time offenders in the

possession of sawed-off shotguns are subject to "imprisonment in

the state prison for life, or any term of years," with a minimum

sentence of eighteen months.   G. L. c. 269, § 10 (c).    The

weapons listed in § 10 (c) (machine gun and sawed-off shotgun)

are the only "dangerous weapons" listed in § 10, the possession

of which subjects the possessor to a term of up to life

imprisonment.   The following section, § 10 (d), is an omnibus

clause of the statute, allowing for subsequent offender sentence

enhancements for violations not only of § 10 (c) but also of

§ 10 (a) (possession of other types of firearms) and § 10 (b)

(encompassing a wide variety of handheld, nonfirearm weapons,

including knives, chains, and nunchaku).   A single violation of

neither § 10 (a) nor § 10 (b) subjects an offender to life

imprisonment.   This clear differentiation by the Legislature

indicates that offenses under § 10 (c) are more grievous than

those under § 10 (a) or (b).   The inconsistent penalty system by

which second offenders may (at least with respect to offenses

under § 10 [c]) receive a lesser punishment than first-time
                                                                   13


offenders may seem illogical, but it is not ambiguous.     We

therefore conclude, contrary to the defendant's recitation of

the rule of lenity, that there is nothing ambiguous about the

statute in question.

    3.   Conclusion.   The Commonwealth was unable to exercise

its nolle prosequi authority as to the second offender

enhancement because that conviction was no longer available.

Given that the judge had initially sentenced the defendant under

the ACC enhancement provision, the second offender enhancement

was effectively dismissed.   Our conclusion that the defendant

was no longer subject to the second offender enhancement

conviction, however, leaves the resentencing judge in the same

position in which she had been on the initial remand:    able to

craft a sentence, pursuant to G. L. c. 269, § 10 (c), based on

the underlying crime, with a potential term of from eighteen

months to life.   We therefore affirm as imposed the defendant's

sentence of from twelve to fifteen years in State prison.

                                    So ordered.
