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14-P-43 Appeals Court

COMMONWEALTH vs. JEFFREY LUCKERN.

No. 14-P-43.

Suffolk. December 8, 2014. - April 8, 2015.

Present: Rubin, Milkey, & Carhart, JJ.

Habitual Offender. Practice, Criminal, Sentence.

Indictments found and returned in the Superior Court 

Department on May 7, 2013. 

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

Zachary Hillman, Assistant District Attorney (Gretchen P.

Sherwood, Assistant District Attorney, with him) for the 

Commonwealth.

David M. Skeels, Committee for Public Counsel Services, for 

the defendant.

RUBIN, J. This case concerns the meaning of a provision of 

the habitual offender statute, G. L. c. 279, § 25(a), amended by 

St. 2012, c. 192, § 47. The question before us is whether a 

defendant given a sentence of three years or more in State 

prison that is suspended so that the defendant must serve less 
2

than three years has been "sentenced to state prison or state 

correctional facility or a federal corrections facility for a 

term not less than [three] years."

The prior version of the habitual offender statute applied 

to those who had "been twice convicted of crime and sentenced 

and committed to prison in this or another state . . . for terms 

of not less than three years each." G. L. c. 279, § 25, amended 

by St. 1904, c. 303. The statute was amended in 2012 so that it 

now applies to anyone convicted of a felony who "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 by the commonwealth, 

another state or the United States." G. L. c. 279, § 25(a). 

Although the wording has changed slightly, we agree with the 

parties that there is no material difference between the 

language in the new version of the statute, which refers to 

being sentenced for a term of not less than three years, and 

that in the old statute. Consequently, although the statute has 

been amended to remove the reference to "commitment," the 

language of the current version with respect to being sentenced 

must be read in pari materia with that in the prior version. 

The question before us is whether the defendant has two 

prior convictions that may serve as predicate convictions for 

application of the habitual offender statute. The defendant 
3

pleaded guilty to larceny over $250 in Middlesex County in 1995. 

He was sentenced to a so-called split sentence: three to four 

years in State prison, six months to be served, with the rest of 

the sentence suspended for four years under certain conditions.1 

The defendant also pleaded guilty to burglary in New Hampshire 

in 1984, and was sentenced under a procedure that is unfamiliar 

in the Commonwealth. The defendant was originally sentenced to 

three and one-half to seven years in New Hampshire State prison 

on this conviction, with the judge's order stating that after 

one year, if the defendant had been participating in a drug 

abuse program and submitting to random screening, and had 

received recommendations from both the warden and the 

alcohol/drug counselor, he might "apply for review of this 

sentence and for transfer to and treatment in a long-term 

residential drug treatment facility." After serving one year 

and eleven months of his sentence the defendant moved for 

 

1 Such State prison sentences may no longer be given in 

Massachusetts. Since the adoption of "truth in sentencing"

twenty years ago Massachusetts judges can no longer order 

suspended sentences of incarceration in State prison (in 

contrast to sentences in houses of correction). Commonwealth v. 

Wilcox, 446 Mass. 61, 65 n.8 (2006) ("the authority to suspend a 

sentence of incarceration in a State prison, as opposed to a 

house of correction, has been eliminated by G. L. c. 127, § 133, 

as appearing in St. 1993, c. 432, § 11 [Truth-in-Sentencing 

Act]"). The defendant committed the underlying larceny, 

however, prior to the adoption of the truth-in-sentencing 

statute, and there is no dispute whether he was properly 

sentenced.
4

reconsideration and the same judge granted his motion. His 

sentence was suspended and conditions were imposed on that 

suspension. It is clear that this was a reconsideration of the 

defendant's original sentence. The judge's order did not refer 

to the time the defendant had served, nor did it refer to the 

suspension of merely "a balance" of the sentence. The defendant 

appears to argue that the original sentence was vacated, and 

that his new sentence should be understood as a completely 

suspended sentence of three and one-half to seven years. We may 

assume without deciding that he is correct in his 

characterization of the sentence handed down by the New 

Hampshire judge and, for purposes of this opinion, will treat it 

as a completely suspended sentence.

In the trial court, the parties argued on the basis that 

the prior version of the statute was applicable. The defendant 

argued in his memorandum in support of his motion to dismiss 

below that he was never "committed" on his New Hampshire 

sentence, and that the New Hampshire conviction therefore could 

not serve as a predicate offense under the old version of the 

statute. The Commonwealth argued below only that the 

defendant's two prior convictions could serve as predicate 

convictions under the old version of the statute. A judge of 

the Superior Court concluded that neither conviction met the 

requirements of the statute and dismissed the habitual offender 
5

charge against the defendant. The Commonwealth has brought this 

appeal.

In fact, the applicable version of the statute is not the 

old version, but the new one: the defendant's charged conduct 

in the indictment at issue occurred in 2013, after the 

amendment. Below, the Commonwealth made no argument under the 

new version of the statute, but, notwithstanding the rules of 

waiver, in a case like this, regardless whether we are required 

to address the applicable version of the statute, to do so is, 

at the least, within our discretion. "[A] court 'need not 

render judgment on the basis of a rule of law whose nonexistence 

is apparent on the face of things, simply because the parties 

agree upon it.'" United States Natl. Bank v. Independent Ins. 

Agents of Am., Inc., 508 U.S. 439, 447 (1993), quoting from 

United States v. Burke, 504 U.S. 229, 246 (1992) (Scalia, J.,

concurring). The Commonwealth may proceed against the defendant 

only under the amended, applicable version of the statute. 

Whether he could have been charged under the old version is 

irrelevant and any opinion we might render on the question would 

be advisory. Consequently, we analyze the defendant's 

convictions under the amended version of the law. Because the 

case presents a pure question of law, we are in as good a 

position as the trial judge would be to resolve the matter. 
6

Thus, rather than remanding for reconsideration under the 

amended statute, we turn to the merits.

On appeal, the defendant no longer contends that he was not 

"committed" -– that word has been removed from the statute. 

Rather, he argues that he was not "sentenced to state prison or 

state correctional facility or a federal corrections facility 

for a term not less than [three] years" on either the Middlesex 

County conviction or the New Hampshire conviction.2 An appellee, 

of course, may seek affirmance on any ground. See Lopes v. 

Commonwealth, 442 Mass. 170, 181 (2004).

The question we must address is whether one who is given a 

suspended sentence of not less than three years –- suspended in 

part or in whole at the time of sentencing so that less than 

three years will be served –- has been sentenced for such a 

term. We think he has. As we wrote in Commonwealth v. Perry, 

65 Mass. App. Ct. 624, 632 (2006), about the prior version of 

the statute, "[r]ead together, the terms of the statute require 

that a defendant twice be found guilty (convicted), sentenced to 

prison (sentenced), and imprisoned for some period of time 

(committed). See G. L. c. 279, § 25. Requiring a period of 

commitment eliminates from consideration any prior offenses for 

 

2 As this is the only argument put forward by the defendant, 

we express no opinion whether there is any other legal reason a 

conviction in which a defendant is given a suspended sentence 

may not serve as a predicate under the current version of the 

statute.
7

which an otherwise qualifying prison term is suspended" 

(emphasis added). Put another way, we inferred that commitment 

was required by the Legislature precisely because completely 

suspended sentences of not less than three years did meet the 

statute's requirement of a sentence of that length, and thus 

that, in the absence of a requirement of commitment, convictions 

in which a defendant received such suspended sentences would 

qualify as predicate convictions under the statute.

The defendant observes that this statement in Perry is 

dictum, and he asserts that the language of the statute is on 

its face ambiguous. Consequently, he argues, we should under 

the rule of lenity construe the statute to require an actual, 

rather than a suspended, sentence of not less than three years. 

See Commonwealth v. Constantino, 443 Mass. 521, 525 (2005) ("if 

the statutory language could plausibly be found to be ambiguous, 

the rule of lenity requires the defendant be given the benefit 

of the ambiguity") (citation omitted).

This argument would have strength if the defendant could 

describe a circumstance other than a suspended sentence in which 

a defendant could be sentenced to a term of not less than three 

years, but not committed. But he has provided no such example. 

In the absence of such a circumstance, the implication of the 

requirement of commitment in the prior version of the statute is 

that a suspended sentence of not less than three years is a 
8

"sentence[]" of "not less than [three] years" within the meaning 

of the statute. Consequently, we conclude that the defendant 

was "sentenced" to terms that meet the requirements of the 

habitual offender statute on each of the two convictions at 

issue here. 

The order dismissing the habitual offender charge is 

reversed. 

So ordered.