NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

SJC-12110

                  COMMONWEALTH   vs.   JAMES GARVEY.



            Suffolk.     December 8, 2016. - May 9, 2017.

  Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, &
                            Budd, JJ.1


Habitual Offender. Controlled Substances. Grand Jury.
     Practice, Criminal, Dismissal, Grand jury proceedings.



     Indictments found and returned in the Superior Court
Department on April 1, 2014.

     A motion to dismiss was heard by Carol S. Ball, J.

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


     Zachary Hillman, Assistant District Attorney (Kathleen
Celio, Assistant District Attorney, also present) for the
Commonwealth.
     Robert A. O'Meara (Joseph M. Perullo also present) for the
defendant.


     BUDD, J.    This case requires us to interpret G. L. c. 279,

§ 25 (a), one provision in the habitual criminal statute, G. L.

     1
       Justice Botsford participated in the deliberation on this
case prior to her retirement.
                                                                     2


c. 279, § 25.    Section 25 (a) provides for an enhanced penalty

where a defendant has two prior convictions resulting in State

or Federal prison sentences of three years or more (qualifying

sentences).    We conclude that § 25 (a) requires that the

underlying convictions arise from separate incidents or episodes

of criminal behavior.    We also conclude that, in this case, the

Commonwealth failed to provide the grand jury with sufficient

evidence to support the habitual offender portions of the

indictments.    We therefore affirm the order dismissing the

habitual offender portions of the indictments currently pending

against the defendant.

    Background.     The defendant, James Garvey, was indicted on

charges alleging violations of the controlled substances law, G.

L. c. 94C.    After returning eight indictments relating to the

charged drug crimes, the grand jury received evidence concerning

the defendant's prior convictions, which the prosecutor

introduced to establish probable cause for enhanced penalties to

be available in relation to these drug offenses.    In particular,

the grand jury heard that on March 13, 2002, the defendant was

convicted of four offenses, each described in a separate count

of a single indictment, and was sentenced to at least three

years in State prison on each offense.    The offenses were (1)

kidnapping, (2) receiving stolen property, (3) possession of a

firearm with an obliterated serial number, and (4) unlawful
                                                                   3


possession of a firearm.   The grand jurors did not, however,

hear any evidence as to when these offenses occurred.2    The grand

jury also heard that on December 5, 2002, the defendant was

convicted of distribution of a class B substance and conspiracy

to violate the controlled substance act, but they did not hear

any testimony related to sentencing on those offenses.

     Based on the evidence presented relating to the alleged

current drug offenses and the prior convictions, the grand jury

ultimately voted to indict the defendant for trafficking in 200

grams or more of oxycodone and hydromorphone, G. L. c. 94C,

§ 32E (c) (4); trafficking in thirty-six grams or more of

morphine, G. L. c. 94C, § 32E (c) (2); five counts of possession

of a class B substance with the intent to distribute, G. L.

c. 94C, § 32A (a), each as a subsequent offender, G. L. c. 94C,

§ 32A (b); and possession of a class E substance with the intent

to distribute, G. L. c. 94C, § 32D (a), as a subsequent

offender, G. L. c. 94C, § 32D (b).   Each charge also carried


     2
       Based on the defendant's representation in his brief and
on the Commonwealth's statement of the case in connection with
the 2002 convictions, which the defendant filed as an exhibit to
his motion to dismiss, it appears that the four convictions
stemmed from an attempted armed robbery of a store in Arlington
in 2001. The defendant and one other person arrived in a stolen
motor vehicle. During the robbery, the two threatened the store
clerks, locking one of the clerks in the basement. When the
police arrived and arrested the robbers, they found two firearms
in the store. The Commonwealth does not appear to dispute the
defendant's representation that the four prior convictions
shared a single date of offense.
                                                                     4


habitual criminal and school zone enhancements.    See G. L.

c. 279, § 25; G. L. c. 94C, § 32J.

    The defendant moved to dismiss the habitual offender

portions of the indictments, arguing that the grand jury heard

no evidence that his four underlying 2002 convictions arose from

different criminal episodes.   A Superior Court judge allowed the

motion in a margin endorsement, writing that "to be a[] habitual

offender, one must have at least two prior convictions with

qualifying sentences resulting from separate, prior criminal

episodes" (emphasis in original; quotation omitted).    The

Commonwealth appealed from the judge's order.     See G. L. c. 278,

§ 28E; Mass. R. Crim. P. 15 (a) (1), as appearing in 422 Mass.

1501 (1996).   We transferred the case from the Appeals Court on

our own motion.

    Discussion.    Section 25 (a) requires a judge to sentence a

person found guilty of the underlying felony to the maximum

penalty prescribed by law for that felony, where that person has

at least two prior convictions with qualifying sentences.      See

Commonwealth v. Luckern, 87 Mass. App. Ct. 269, 269-270 (2015).

In reviewing the judge's decision to dismiss the habitual

offender portions of the indictments pending against the

defendant, our task is to interpret the meaning of this statute.

We address that question first, before considering whether the
                                                                      5


Commonwealth presented adequate facts to enable the grand jury

to make a probable cause determination.

    1.   Statutory interpretation.     We review questions of

statutory interpretation de novo.    Commonwealth v. Martin, 476

Mass. 72, 75 (2016).   General Laws c. 279, § 25 (a), as amended

by St. 2012, c. 192, § 47, provides:

          "Whoever is convicted of a felony and has been
    previously twice convicted and sentenced to state prison or
    state correctional facility or a federal corrections
    facility for a term not less than [three] years . . . shall
    be considered a habitual criminal and shall be punished
    . . . for such felony for the maximum term provided by
    law."

    To determine the Legislature's intent, we look to the words

of the statute, "construed by the ordinary and approved usage of

the language, considered in connection with the cause of its

enactment, the mischief or imperfection to be remedied and the

main object to be accomplished."    Boston Police Patrolmen's

Ass'n v. Boston, 435 Mass. 718, 720 (2002), and cases cited.

"We derive the words' usual and accepted meaning from sources

presumably known to the statute's enactors, such as their use in

other legal contexts and dictionary definitions."     Commonwealth

v. Campbell, 415 Mass. 697, 700 (1993), quoting Commonwealth v.

Zone Book, Inc., 372 Mass. 366, 369 (1977).     Where the statutory

language is clear and unambiguous, our inquiry ends.

Commissioner of Correction v. Superior Court Dep't of the Trial

Court for the County of Worcester, 446 Mass. 123, 124 (2006).
                                                                      6


     Both the Commonwealth and the defendant contend that the

statute is unambiguous, but each interprets it differently.     The

Commonwealth argues that the plain meaning of the statute

requires simply that a defendant have two prior convictions with

qualifying sentences in order to be considered a habitual

criminal, regardless of whether those convictions stem from the

same or different episodes.   The defendant, on the other hand,

contends that the statute's plain meaning includes a separate-

episode element because of the Legislature's use of the word

"habitual," in the text of the statute.   His argument is that a

"habit" is generally defined as "a settled tendency of behavior"

or "a behavior pattern acquired by frequent repetition,"

Webster's Third New Int'l Dictionary 1017 (2002), and that,

therefore, a habitual criminal is someone who has committed a

certain number of criminal acts on separate occasions.

     We do not find § 25 (a)'s meaning, at least in relation to

the issue whether the necessary two prior convictions must

relate to different criminal incidents, to be as clear and

obvious as the Commonwealth and the defendant do.   Accordingly,

we look to the history of the statute and our past decisions

interpreting it, as well as to the rest of the statutory scheme,

for guidance.3   See Commonwealth v. St. Louis, 473 Mass. 350, 355


     3
       Although Legislative intent controls, we note that G. L.
c. 279, § 25 (a), is generally described as a "three strikes"
                                                                      7


(2015); Commonwealth v. Galvin, 388 Mass. 326, 329 (1983).      See

also Commonwealth v. Hamilton, 459 Mass. 422, 433 (2011) ("we

turn to the history of the statute" where there is "lack of

clarity").

     a.   History of § 25 (a).   The Legislature developed a

series of incarnations of repeat offender statutes, beginning in

1818, before enacting what is now § 25 (a).    Contrary to the

Commonwealth's assertion, the full statutory history of the

habitual criminal statute demonstrates that the requirement of

separate criminal episodes has been a crucial assumption

underlying the statute's development.

     Earlier statutes, including those cited by the

Commonwealth, provided for an enhanced penalty upon a second

conviction, with further aggravation upon a third.    See St.

1817, c. 176, §§ 5-6; St. 1827, c. 118, §§ 19-20; St. 1832,

c. 73, § 1; St. 1833, c. 85, §§ 1-2; St. 1836, c. 4, §§ 17, 20-

22; St. 1843, c. 80.   Although there were slight variations

among these statutes,4 the constant concept throughout was the



law. See, e.g., Fletcher v. Dickhaut, 834 F. Supp. 2d 10, 15-16
(D. Mass. 2011) ("The statute operates as a 'three-strikes-and-
you're-out' law . . ."). While we do not depend (solely) on the
rules of a sport for interpretation, we consider it relevant
that most persons using that analogy would also understand that,
in baseball, one cannot incur two strikes on a single pitch.
     4
       The Commonwealth argues that changes to the statute in the
1830s support its interpretation: in 1832, the Legislature
required prior convictions, sentences, and discharges, but it
                                                                     8


Legislature's focus on separate prior incidents.     In 1853, the

Legislature repealed the statute.     St. 1853, c. 375.   In 1887,

the Legislature enacted the earliest version of the modern

statute.   In doing so, it chose to omit the requirements that

there be discharges between the commission and conviction of

each prior crime, and also to omit an enhanced penalty for

second convictions, leaving enhanced penalties only for those

criminals who were convicted a third time.    See St. 1887,

c. 435, § 1, in amended form at G. L. c. 279, § 25 (a).       See

also Commonwealth v. Richardson, 175 Mass. 202, 208 (1900).

When it took these steps, the Legislature added the phrase

"habitual criminal" to the statute.     Id. at 202-203.   Against

the backdrop of the earlier statutes, with their clear focus on

separate and distinct convictions, we understand these changes



removed the discharge requirement in 1836. Compare St. 1832,
c. 73, with St. 1836, c. 4, §§ 17, 20-22. The 1836 amendment
allowed two prior convictions to qualify even where there had
not been a term of liberty between any of the crimes. However,
we disagree with the Commonwealth's argument that the 1836
amendment also allowed prior convictions stemming from a single
incident to qualify. In fact, the decision the Commonwealth
cites for the concept that "the previous convictions and
sentences only need be shown," Commonwealth v. Richardson, 175
Mass. 202, 207-208 (1900), was concerned with whether discharges
between sentences on the prior qualifying convictions also must
be shown, rather than with determining which convictions could
qualify. Moreover, the Richardson court may well have assumed
that qualifying convictions must stem from separate episodes:
the facts of that case involved prior convictions that, while
tried in the same "term" of court, arose from separate criminal
episodes occurring at different times and in different cities.
Id. at 203, 206.
                                                                   9


as showing that the Legislature sought to provide again for

additional punishment for those criminals who had prior

convictions for separate incidents; the intended effect was to

limit these additional penalties to those facing a felony

conviction after two previous convictions from separate

incidents.

    This construction of § 25 (a) aligns with earlier decisions

interpreting the statute and its prior incarnations.    In these

prior cases, although the issue has not been directly raised, we

and the Appeals Court have assumed that § 25 (a) requires that

the underlying convictions be for "separate" or "distinct"

criminal acts committed on different occasions.   In Richardson,

175 Mass. at 208, the court emphasized that through the habitual

criminal statute, the Legislature sought both to reform

criminals and to protect the public from individuals who

"persist[] in crime notwithstanding [prior] discipline."     We

held that "two previous distinct convictions" resulting in

consecutive sentences could qualify as the underlying

convictions resulting in enhanced penalties, id. at 205, and,

through the statement of the underlying facts, made clear that

the two convictions were for two distinct criminal incidents.

See id. at 203.   The Appeals Court has held that concurrent

prison sentences also qualify under the statute, but similarly

has emphasized that the qualifying convictions were for
                                                                      10


"separate and distinct offences."   See Commonwealth v. Hall, 19

Mass. App. Ct. 1004 (1985), S.C., 397 Mass. 466 (1986).    See

also Commonwealth v. Keane, 41 Mass. App. Ct. 656, 660 (1996),

citing Hall, supra.   More recently, where the two prior

convictions stemmed from separate cases in Middlesex County and

New Hampshire, the Appeals Court held that suspended sentences

could qualify as well.   Luckern, 87 Mass. App. Ct. at 273.

Thus, the concept that the prior convictions must stem from

separate episodes has been an implied assumption in our earlier

holdings.

     b.   Statutory scheme and effects.   The Commonwealth further

argues that the defendant's interpretation is not supported by a

review of other statutes providing for enhanced penalties.       It

points out that the Legislature has enacted other statutes

punishing repeat offenders5 and armed career criminals,6 which

contain language specifically requiring that the prior

conviction be based on distinct offenses; and that, in 2012, the

Legislature added a "violent habitual offender" provision to


     5
       See, e.g., G. L. c. 266, § 40 ("whoever is convicted . . .
of three distinct larcenies, shall be adjudged a common and
notorious thief, and shall be punished by imprisonment in the
state prison for not more than twenty years or in jail for not
more than two and one half years").
     6
       See, e.g., G. L. c. 269, § 10G (b) (providing for enhanced
penalty where defendant has prior convictions, "arising from
separate incidences," for two violent crimes, two serious drug
offenses, or one of each).
                                                                    11


§ 25, which also specifies that the prior convictions must

relate to "separate and distinct incidents."7    See G. L. c. 279,

§ 25 (b).

     The Commonwealth's claim is that the Legislature's

inclusion of explicit references to the need for separate

incidences in other statutes and especially in another section

of § 25 itself, i.e., § 25 (b), implies that the Legislature

intentionally excluded the "separate and distinct incident"

element from § 25 (a).     We have generally been wary of the maxim

of negative implication.    See Halebian v. Berv, 457 Mass. 620,

628 (2010) ("the maxim of negative implication -- that the

express inclusion of one thing implies the exclusion of another

-- 'requires great caution in its application'" [citation

omitted]).   Caution is particularly justified here, where the

statutes cited by the Commonwealth vary significantly.     Two of

these statutes -- the armed career criminal act and the common

and notorious thief statute -- do not aid the Commonwealth's

argument, as the language and structure are different from




     7
       Section 25 (b) provides for enhanced penalties without
parole for violent offenders who have two prior convictions from
a list of nearly forty violent crimes, and limits prior
convictions to "charges separately brought and tried, and
arising out of separate and distinct incidents that occurred at
different times, where the second offense occurred subsequent to
the first conviction."
                                                                   12


§ 25 (a).8   The third provision, § 25 (b), was added as part of

criminal justice reform legislation enacted in 2012.   See St.

2012, c. 192, § 47.   Those amendments added § 25 (b) in order to

remove the possibility of parole for habitual violent offenders,9

id., and broadened § 25 (a) to include suspended and Federal

sentences.   See Luckern, 87 Mass. App. Ct. at 269-270, 273.     See

     8
       Although the former, G. L. c. 269, § 10G, provides for
enhanced penalties for "armed career criminals" with prior
convictions, limited to those convictions "arising from separate
incidences," the phrase "career criminal" does not appear in the
body of the statute. Thus, unlike § 25 (a), which includes the
concept of separate episodes via the phrase "habitual criminal"
in the text, § 10G explicitly states "separate incidences" to
achieve that meaning. See generally Commonwealth v. Resende,
474 Mass. 455 (2016).

     The latter, G. L. c. 266, § 40, requires "distinct"
convictions of specified crimes in the body of the statute,
which provides for consolidated sentences for "common and
notorious thie[ves]". However, because it has a completely
different purpose and structure from § 25 (a), it is unclear why
we should read § 40 as similar enough to affect our
interpretation of § 25 (a). See Commonwealth v. Crocker, 384
Mass. 353, 355 & n.2 (1981) (§ 40 focuses on sentencing and
requires consolidated sentence, whereas § 25 [a] must be alleged
by indictment and requires separate trial); Commonwealth v.
McKnight, 289 Mass. 530, 548 (1935) ("[§ 40] and [its] procedure
are quite different from cases where a heavier sentence is
imposed [after prior convictions] and where there must be an
allegation of the previous conviction as an integral part of the
offence"). See also Resende, 474 Mass. at 466 (different
structure and language between Federal and State armed career
criminal acts implied that State Legislature had different
sentencing scheme in mind).
     9
       Norton, Patrick Will Sign Sentencing Bill, Expects More
Debate Early Next Session (July 31, 2012), http://www.
statehousenews.com/news/2012860 [https://perma.cc/HU9P-KL8J]
("bill . . . eliminate[s] parole eligibility for certain three-
time violent offenders, a measure that proponents say targets
the 'worst of the worst' and will improve public safety").
                                                                     13


generally Commonwealth v. Colturi, 448 Mass. 809, 812-813 (2007)

(considering purpose of amendments as aid in interpretation).

However, because the Legislature did not further amend § 25 (a),

there is no indication that it intended to make material changes

to the rest of § 25 (a).     Luckern, supra at 270.   See Colturi,

supra at 812 (because we presume Legislature is aware of our

prior decisions, "reenact[ment of] statutory language without

material change" implies adoption of prior construction).      To

the extent that § 25 (b) includes more specific language about

distinct occurrences, it does not negate this court's and the

Appeals Court's prior assumptions about § 25 (a).

    Thus, viewing § 25 (a) in light of its history, the

statute's proper interpretation aligns with that adopted by the

defendant and the motion judge:    the two prior convictions with

qualifying sentences must have arisen from two separate criminal

episodes or incidents.

    c.   Statute's effects and rule of lenity.     Moreover, taking

the Commonwealth's proposed interpretation of § 25 (a) to its

logical conclusion, the Commonwealth, in its discretion, could

seek a habitual offender enhancement for any single incident in

which a defendant committed three felonies, by parsing them into

two separate prosecutions:    one with two substantive charges,

and one with both a third substantive charge and a habitual

criminal enhancement.    See Mass. R. Crim. P. 9 (a), 378 Mass.
                                                                     14


859 (1979); E.B. Cypher, Criminal Practice and Procedure § 25:56

(4th ed. 2014) (prosecutor has broad discretion).    For example,

a prosecutor could split a drug-and-firearm transaction into two

cases:   the first case charging the defendant with possession of

a firearm and possession of a controlled substance with intent

to distribute, and the second charging conspiracy and a habitual

criminal enhancement, based on the drug and firearm convictions

in the first case.   See Commonwealth v. Gallarelli, 372 Mass.

573, 576-577 (1977) (discussing separate prosecutions of

conspiracy and substantive act).   Alternatively, prosecutors who

were successful in prosecuting two charges may later learn of

new facts that would support a third charge.    In both scenarios,

there would be two prior convictions and sentences before the

defendant was prosecuted for the third charge, even though all

three charges arose from a single episode.     Thus, the statute's

application would depend not on habitual criminal conduct but on

how the Commonwealth chooses to prosecute any one criminal

episode.   This cannot be what the Legislature intended.   See

Lowery v. Klemm, 446 Mass. 572, 578-579 (2006), quoting Attorney

Gen. v. School Comm. of Essex, 387 Mass. 326, 336 (1982) ("we

will not adopt a construction of a statute that creates 'absurd

or unreasonable' consequences").

    Further, to the extent that the Commonwealth's argument

raises a valid question about the meaning of § 25 (a), the rule
                                                                     15


of lenity supports the interpretation advocated by the defendant

and accepted by us.    See Commonwealth v. Resende, 474 Mass. 455,

469 (2016) (in sentencing and substantive provisions, where

"statute is ambiguous" or legislative intent is unclear, "the

defendant is entitled to the benefit of any rational doubt"

[citation omitted]).   Therefore, we conclude that § 25 (a) calls

for enhanced penalties for defendants with two prior convictions

with qualifying sentences only where those convictions stem from

separate criminal incidents.

     2.   Probable cause.   Citing Commonwealth v. O'Dell, 392

Mass. 445, 451 (1985), and other cases, the Commonwealth argues

that even if there is in § 25 (a) a requirement of a separate

criminal incident, at the grand jury stage, the Commonwealth

only had to present evidence establishing that there were two

prior convictions, not that those convictions related to

distinct criminal episodes.    A court will normally avoid

examining the evidence before the grand jury.     See Commonwealth

v. McCarthy, 385 Mass. 160, 161-162 (1982).     However, we will

inquire into the proceeding where, as here, the defendant

alleges that the grand jury heard no evidence as to a charge or

an essential element of a charge.10   See Commonwealth v. Rex, 469


     10
       Given the practical reality that a large majority of
criminal cases are resolved by guilty pleas, the possibility of
requiring no evidence of separate episodes until trial is of
particular concern here, because the dismissal of a habitual
                                                                   16


Mass. 36, 40-42 (2014) (considering whether grand jury heard

"any" evidence as to elements of possession of child

pornography).

     Here, the grand jury heard no evidence that would allow

them to conclude that the defendant's prior convictions stemmed

from separate criminal episodes.   As described supra, after the

grand jury returned indictments on the new substantive drug

charges, they heard testimony regarding four of the defendant's

prior convictions.   However, the grand jury did not hear any

information as to the underlying criminal acts.   In particular,

they heard no information regarding when the offenses took place

or how they were related to each other.11   Therefore, they would

not have been able to determine whether the defendant's prior

convictions arose out of separate episodes or out of a single

criminal incident or spree.   As a consequence, without hearing

any evidence of separate criminal events, the grand jury could

not conclude that there was probable cause to believe that an

essential element of the habitual offender statute existed.     See

Commonwealth v. Humberto H., 466 Mass. 562, 565-566 (2013)



offender charge can be a powerful motivator for defendants
considering plea agreements.
     11
       Because the grand jury heard no testimony that would
support a determination that the prior convictions stemmed from
separate criminal incidents or episodes, we do not opine whether
testimony regarding the underlying scenario, described in note
2, supra, would permit such a finding.
                                                                  17


("complaint application must include information to support

probable cause as to each essential element of the offense").

Thus, the Commonwealth did not meet its burden for the grand

jury properly to find probable cause for the habitual offender

portions of the indictments.

    Conclusion.   The order of the Superior Court allowing the

defendant's motion to dismiss the habitual offender portions of

the indictments is affirmed.

                                   So ordered.
