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SJC-12404

COMMONWEALTH vs. BERNIE RUIZ.

Suffolk. May 7, 2018. - October 11, 2018.

Present: Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ.

Habitual Offender. Practice, Criminal, Appeal by Commonwealth, 

Interlocutory appeal.

Civil action commenced in the Supreme Judicial Court for 

the county of Suffolk on January 10, 2017.

The case was heard by Lenk, J.

David L. Sheppard-Brick, Assistant District Attorney, for 

the Commonwealth.

Patrick A. Michaud for the respondent.

BUDD, J. Once again we have occasion to interpret G. L. 

c. 279, § 25 (a) (§ 25 [a]), which requires that a "habitual 

criminal" -- a defendant who has been convicted of a felony and 

has two prior convictions resulting in State or Federal prison 

sentences of three years or more -- be sentenced to the maximum 

term provided by law on the underlying conviction. We conclude 
2

that, although the predicate convictions must arise from 

separate incidents or episodes, Commonwealth v. Garvey, 477 

Mass. 59, 66 (2017), the offenses need not be separately 

prosecuted. We further conclude that Mass. R. Crim. P.

15 (a) (1), as appearing in 474 Mass. 1501 (2016) (rule 15 [a] 

[1]), and G. L. c. 278, § 28E (§ 28E), grant the Commonwealth a 

right to appeal from the dismissal of the sentence enhancement 

portion of an indictment, and thus we overrule in part 

Commonwealth v. Pelletier, 449 Mass. 392, 395-396 (2007).

Background. In March, 2016, a grand jury returned eleven 

indictments against the defendant for a variety of charges, 

including armed assault with intent to murder, in connection 

with an incident alleged to have occurred on February 17, 2016.1 

All but two of these indictments carried sentencing enhancements 

under § 25 (a).

 

1 The details regarding the basis of the defendant's 

indictments are contained in grand jury testimony filed and 

maintained under seal pursuant to G. L. c. 268, § 13D (e). The 

defendant was charged on two indictments of armed assault with 

intent to murder, G. L. c. 265, § 18 (b); three indictments of 

assault by means of a dangerous weapon, G. L. c. 265, § 15B; one 

indictment of unlawful possession of a firearm, G. L. c. 269, 

§ 10 (a); one indictment of unlawful possession of a loaded 

firearm, sawed off shotgun, or machine gun, G. L. c. 269, § 10 

(n); one indictment of unlawful possession of ammunition without 

a firearm identification card, G. L. c. 269, § 10 (h); one 

indictment of discharging a firearm within 500 feet of a 

dwelling, G. L. c. 269, § 12E; one indictment of possession of a 

firearm during the commission of a felony, G. L. c. 265, § 18B; 

and one indictment of malicious damage to a motor vehicle, G. L. 

c. 266, § 28 (a).
3

The predicate convictions supporting the habitual criminal 

portions of the indictments were the result of guilty pleas 

tendered by the defendant in 2008. The defendant pleaded guilty 

to separate charges of assault and battery by means of a 

dangerous weapon arising from two separate criminal episodes,

which occurred in August and September of 2006.

In 2008, the defendant was indicted for both offenses by 

the same grand jury and pleaded guilty to both charges in one 

proceeding. The defendant was sentenced to a term of from four 

to six years in State prison on each charge of assault and 

battery by means of a dangerous weapon, each sentence set to run 

concurrently.2

Because the judge below concluded that the defendant's 

predicate convictions represented a single "incident" under 

§ 25 (a), he allowed the defendant's motion to dismiss the 

§ 25 (a) sentence enhancement charges associated with the March, 

2016, indictments.3 The Commonwealth filed a timely notice of 

 

2 The defendant also pleaded guilty to other charges during 

the aforementioned 2008 proceeding that are not relevant to our 

analysis in this case.

3 The defendant also was indicted in October, 2014, for a 

number of other criminal offenses. Several of the 2014 and 2016 

charges carried sentence enhancements pursuant to the armed 

career criminal act, G. L. c. 269, § 10G (c). The motion judge 

granted the defendant's motion to dismiss these sentence 

enhancement charges; the Commonwealth did not appeal from those 

dismissals. See Commonwealth v. Resende, 474 Mass. 455, 470 
4

appeal in the Superior Court, but the Superior Court clerk's 

office would not compile a record for appeal under rule 15 (a) 

(1) in light of our decision in Pelletier, 449 Mass. at 396, in 

which we held that the Commonwealth may not take an 

interlocutory appeal from the dismissal of only the sentence 

enhancement portion of a complaint. Thereafter, the

Commonwealth filed a petition for relief pursuant to G. L. 

c. 211, § 3. A single justice of this court denied the 

Commonwealth's petition, and the Commonwealth appealed to the 

full court.

Discussion. 1. Applicability of G. L. c. 279, § 25 (a). 

In reviewing the single justice's determination to deny the 

Commonwealth's petition brought under G. L. c. 211, § 3, this 

court looks to whether "the single justice abused his or her 

discretion or made a clear error of law." Rogan v. 

Commonwealth, 415 Mass. 376, 378 (1993). Here, the Commonwealth

asserts an error of law. Matter of a Grand Jury Subpoena, 447 

Mass. 88, 90 (2006). Because the question for review is a 

matter of statutory interpretation, we review it de novo. 

Garvey, 477 Mass. at 61.

General Laws c. 279, § 25 (a), provides:

 

(2016). The Commonwealth exercised its authority to enter a 

nolle prosequi on the 2014 charges in May, 2017.
5

"Whoever is convicted of a felony and has been previously 

twice convicted and sentenced to [S]tate prison or [S]tate 

correctional facility or a [F]ederal 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."

The statute requires that a defendant be sentenced to the 

maximum sentence if found guilty of the underlying felony 

provided that he or she has at least two qualifying prior 

convictions; however, § 25 (a) does not indicate whether those 

predicate convictions must have stemmed from separate 

prosecutions and sentencings.

The defendant argues that the judge properly dismissed the 

sentence enhancements because, as he pleaded guilty to a set of 

charges that were combined and prosecuted together, the 

convictions cannot be counted separately for the purposes of 

§ 25 (a). Conversely, the Commonwealth contends that § 25 (a) 

does not require that the predicate convictions arise from 

charges separately prosecuted. See Commonwealth v. Hall, 397 

Mass. 466, 468-469 (1986) (defendant may be convicted under 

statute where two predicate convictions arise out of unrelated

incidents disposed of on same date with identical concurrent 

sentences).

As the statute is "simply silent" on this matter, "we 

consider that section in the context of the over-all objective 

the Legislature sought to accomplish." National Lumber Co. v. 
6

LeFrancois Constr. Corp., 430 Mass. 663, 667 (2000). Our review 

of § 25 (a)'s historical development supports the conclusion 

that the legislative objective of § 25 (a) is to punish all 

offenders who have prior convictions stemming from two or more 

separate and distinct criminal episodes, and that the 

Legislature specifically rejected the requirement of separate 

and sequential prosecutions for predicate offenses.

The "Legislature developed a series of incarnations of 

repeat offender statutes, beginning in 1818, before enacting 

what is now § 25 (a)." Garvey, 477 Mass. at 62.4 In 

Commonwealth v. Phillips, 11 Pick. 28, 34 (1831), this court 

concluded that, under the 1818 incarnation of the statute (which 

was also silent as to whether charges or indictments must have 

been separately prosecuted to count as individual convictions), 

two predicate convictions associated with two prior distinct 

criminal episodes that were brought and tried during the same 

term of the same court were "two convictions, within the meaning 

of the statute." See Ex Parte Seymour, 14 Pick. 40, 40-41 

(1833) (period of liberty between predicate convictions not 

required).

 

4 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; St. 1853, c. 375 (repealing 

statute); St. 1887, c. 435, § 1; St. 2012, c. 192, § 47.
7

In the following year, the Legislature amended the statute, 

superseding this court's opinion in Phillips by expressly 

requiring that there should be two separate convictions and 

sentences, and two distinct discharges from prison, to bring a 

defendant within the scope of the statute. See St. 1832, c. 73, 

§ 1.5 See also St. 1833, c. 85, §§ 1-2 (reenacting statute with 

substantiality of 1832 requirements);6 Phillips v. Commonwealth, 

3 Met. 588, 591 (1842) (1831 interpretation "probably gave rise 

to the statute passed at the next session of the legislature"); 

Commonwealth v. Mott, 21 Pick. 492, 500 (1839) ("One great 

object of the [1832] statute undoubtedly was, to declare that by 

two convictions, should thereafter be understood, sentences and 

commitments at two distinct times and discharges therefrom . . . 

instead of two sentences at the same term of a court"); Ex Parte 

 

5 The 1832 statute specifically required proof that a 

convict subject to the statute "has at two several times before 

been sentenced by competent authority to [prison]." (emphasis 

added). St. 1832, c. 73, § 1. At the time, "several" was 

defined as "[a] state of separation or partition. A several 

agreement or covenant, is one entered into by two or more 

persons separately, each binding himself for the whole; a 

several action is one in which two or more persons are 

separately charged; a several inheritance, is one conveyed so as 

to descend, or come to two persons separately by moieties. 

Several is usually opposed to joint." 2 Bouvier's Law 

Dictionary 394 (1st. ed. 1839).

6 The 1833 statute was reenacted with the express 

requirement of two distinct discharges from prison for predicate 

offenses, but without the express requirement of two several

convictions contained in the 1832 statute. See St. 1832, c. 73, 

§ 1; St. 1833, c. 85, §§ 1-2.
8

Stevens, 14 Pick. 94, 96 (1833) (explaining intent and purpose 

of 1832 statute); Ex Parte Seymour, 14 Pick. at 41 note (noting 

that statutory revision added requirement that charges be 

sequential).

In 1836, however, the Legislature again amended the repeat 

offender statute, eliminating the requirements that had been 

added in 1832 requiring separate convictions and a period of 

liberty between the imprisonment for one offense and the 

commission of the next. St. 1836, c. 4, §§ 17, 20.7 Although 

the Legislature repealed the repeat offender statute in 1853, 

see St. 1853, c. 375, it enacted a version substantially similar 

to the earliest version of the statute in 1887, again omitting 

the 1832 requirements that predicate offenses occur as a result 

of separate convictions and occur with a period of liberty 

between them. St. 1887, c. 435, § 1. We have concluded that 

the Legislature's modifications to the statutory requirements of 

what is now § 25 (a) in light of our decisions are highly 

 

7 Although the 1833 statute appears to have eliminated the 

express requirement of separate convictions and sentences for 

predicate offenses, separate convictions would have still been 

implicit in the requirement that there be two discharges from 

prison. The express requirement of separate convictions was 

nonetheless included in the codification of the statute in 1835. 

See St. 1833, c. 85, §§ 1-2; R.S. c. 133, § 13; R.S. c. 144, 

§ 34. In any case, the 1836 statute expressly repealed the 

requirement of separate convictions and two discharges from 

prison that were included in the revised statutes. See 

St. 1836, c. 4, §§ 17, 20.
9

germane to determining its intent. See Commonwealth v. 

Richardson, 175 Mass. 202, 207 (1900).

The Legislature's decision to enact a statute expressly 

requiring separate prosecutions of predicate offenses with a 

period of liberty between those prosecutions, followed by the 

repeal and replacement of that statute with a version that does 

not contain those requirements, "reflect[s] a conscious decision 

by the Legislature to deviate from the standard embodied in the 

[previous] statute." Commonwealth v. Resende, 474 Mass. 455, 

466 (2016), quoting Globe Newspaper Co. v. Boston Retirement 

Bd., 388 Mass. 427, 433 (1983). Thus, here the Legislature has 

rejected the theory that more severe punishment is only 

appropriate when there have been two separate and distinct 

encounters with the criminal justice system that have failed to 

result in the theoretically beneficial effects of penal 

discipline. See Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S. 

519, 533-535 (2013) (examining statutory history to determine 

statute's meaning).

In 2012, the Legislature reenacted § 25 (a) as part of 

criminal justice reform legislation, also inserting new 

subsections removing the possibility of parole for "habitual 
10

offenders"8 of particular offenses enumerated in the statute. 

G. L. c. 279, § 25 (b)-(d), inserted by St. 2012, c. 192, § 47. 

Under those newly inserted provisions, unlike in § 25 (a), the 

Legislature expressly required that predicate offenses have been 

"separately brought and tried." See G. L. c. 279, § 25 (b) 

(§ 25 [b]). That the Legislature reenacted the same statute in 

2012 without including the requirement that the predicate 

offenses be separately brought and tried under § 25 (a), yet 

included that requirement under § 25 (b), provides further 

support that the Legislature did not intend to modify prior 

assumptions about this statute to include this requirement.9 See 

People v. Braswell, 103 Cal. App. 399, 407-408 (1930) (where 

Legislature required predicate convictions to be "separately 

 

8 After the 2012 amendments, certain individuals statutorily 

identified as "habitual criminals" are subject to the provisions 

of subsection (a) and certain individuals statutorily identified 

as "habitual offenders" are subject to the provisions of 

subsection (b). See G. L. c. 289, § 25, as appearing in

St. 2012, c. 192, § 47.

9 In Commonwealth v. Garvey, 477 Mass. 59, 65-66 (2017), we 

rejected the Commonwealth's argument that the Legislature's 

decision to include an express "separate and distinct incident" 

element in G. L. c. 279, § 25 (b), implied its exclusion in 

G. L. c. 279, § 25 (a) (§ 25 [a]). However, our conclusions 

both here and in Garvey contemplate that by reenacting § 25 (a) 

without making any significant modifications, the Legislature 

did not intend to "negate this court's . . . prior assumptions 

about § 25 (a)." Id. at 66. Based on the statutory history and 

our case law, the prior assumption here is that the Legislature 

did not require predicate offenses to be separately brought and 

tried.
11

brought and tried" for one sentence enhancement scheme but not 

another, "legislature may have considered . . . prior 

convictions [in latter scheme] to have been sufficient to have 

constituted a man a[] habitual criminal, whether or not they 

were upon charges separately brought and tried"). See also 

Commonwealth v. Wimer, 480 Mass. 1, 5 (2018) (interpreting 

statutory language requiring sequential convictions).

The defendant suggests that we should construe § 25 (a) 

consistently with our interpretation of G. L. c. 269, § 10G 

(§ 10G), the armed career criminal act. That statute also 

requires sentence enhancements under particular conditions, and 

is similarly silent as to whether the prior convictions must 

have stemmed from separate prosecutions and sentences.10 In 

 

10 General Laws c. 269, § 10G, provides in relevant part:

"(a) Whoever, having been previously convicted of a violent 

crime or of a serious drug offense, both as defined herein, 

violates the provisions of paragraph (a), (c) or (h) of 

[§] 10 shall be punished by imprisonment in the [S]tate 

prison for not less than three years nor more than 

[fifteen] years.

"(b) Whoever, having been previously convicted of two 

violent crimes, or two serious drug offenses or one violent 

crime and one serious drug offense, arising from separate 

incidences, violates the provisions of said paragraph (a), 

(c) or (h) of said [§] 10 shall be punished by imprisonment 

in the [S]tate prison for not less than ten years nor more 

than [fifteen] years.

"(c) Whoever, having been previously convicted of three 

violent crimes or three serious drug offenses, or any 
12

Resende, 474 Mass. at 469, we concluded that § 10G requires 

separate and sequential prosecutions in order to count prior 

convictions individually; however, § 25 (a) and § 10G stand on 

very different footing.

Section 10G, the Massachusetts analog to the Federal armed 

career criminal act, 18 U.S.C. § 924(e), was enacted relatively 

recently (in 1998), and its legislative roots are not nearly as 

extensive as those of § 25 (a). See St. 1998, c. 180, § 71, 

inserting G. L. c. 269, § 10G. As we noted in Resende, the 

legislative history of § 10G is not particularly helpful on the 

issue whether the statute requires each previous conviction to 

be separately prosecuted to count as a predicate offense. Id. 

at 463-464. Instead we looked to "the Legislature's departure 

from the language used in the Federal [statute],[11] the analysis 

of cases from other jurisdictions, and the rule of lenity" to 

determine that § 10G requires separate and sequential 

prosecutions of predicate offenses. Id. at 464.

 

combination thereof totaling three, arising from separate 

incidences, violates the provisions of said paragraph (a), 

(c) or (h) of said [§] 10 shall be punished by imprisonment 

in the [S]tate prison for not less than [fifteen] years nor 

more than [twenty] years."

11 We noted that the Legislature chose to depart from 

language in the Federal statute in its description of what makes 

a violent crime a predicate offense. Resende, 474 Mass. at 464-

465 (comparing "incidences" in Massachusetts statute with 

"committed on occasions different from one another" in Federal 

statute).
13

In contrast, the purpose of § 25 (a), as made clear from 

the statutory history, is to punish all repeat offenders, and to 

require prior convictions merely as proof of guilt of prior 

crimes rather than proof that a defendant's prior penal 

treatment has not been effective at reforming a criminal 

offender.12 See Richardson, 175 Mass. at 207 (describing 

statute's purpose); Ex Parte Seymour, 14 Pick. at 41-42 (same). 

See also Mott, 21 Pick. at 498 (purpose of period of liberty in 

1833 statute was to ensure sentence enhancement occurs only 

"after the salutatory and reforming influence of two separate 

commitments to the penitentiary, and two discharges therefrom by 

pardon or execution of the whole sentence, had been tried in 

vain").

The Commonwealth's sentence enhancement statutes vary in 

language, structure, and intent.13 Here, a review of the 

statutory history of what is now § 25 (a) confirms that 

predicate convictions arising from separate qualifying criminal 

 

12 A similar understanding of this statute, and how its 

purposes may differ from other repeat offender statutes with

sentence enhancements in this and other States may be found in 

Note, Habitual Criminal Statutes: The Requirement of Prior 

Convictions, 51 Harv. L. Rev. 345, 345-346 (1937).

13 There are many sentence enhancement statutes. See, e.g., 

G. L. c. 279, § 8B (commission of crime while released on 

personal recognizance); G. L. c. 269, § 10 (firearm offenses); 

G. L. c. 266, § 40 (common and notorious thief); G. L. c. 94C, 

§§ 32-32E (drug offenses); G. L. c. 90, § 24 (driving while 

under influence).
14

incidents or episodes need not be separately prosecuted in order 

for a person to be considered a habitual criminal pursuant to 

§ 25 (a). Hall, 397 Mass. at 468-469.

2. Right of appeal. As discussed supra, when the 

Commonwealth sought to appeal from the dismissal of the sentence 

enhancement portions of the indictments, the Superior Court 

clerk's office indicated that it would take no action without an 

order from the county court.

Together, § 28E14 and rule 15 (a) (1)15 establish the right 

of the Commonwealth to appeal from the decision of a judge 

granting a motion to dismiss an indictment or complaint (among 

other things). However, neither the statute nor the rule 

specifies whether the Commonwealth may appeal from the dismissal 

 

14 General Laws c. 278, § 28E (§ 28E), permits the 

Commonwealth to appeal from "a decision, order or judgment" of a 

judge in the Superior Court to the Appeals Court in three 

circumstances: (1) where the judge "allow[s] a motion to 

dismiss an indictment or complaint," (2) where the judge

"allow[s] a motion for appropriate relief under the 

Massachusetts Rules of Criminal Procedure," and (3) provided 

that a single justice of this court grants an application for 

leave to appeal, where the judge "determine[s] a motion to 

suppress evidence prior to trial." See Commonwealth v. Friend, 

393 Mass. 310, 314 (1984) (notwithstanding text in § 28E, "an 

appeal by the Commonwealth from an order or decision dismissing 

an indictment in the Superior Court must first be entered in the 

Appeals Court").

15 Rule 15 (a) (1) of the Massachusetts Rules of Criminal 

Procedure (rule 15 [a] [1]), which implements § 28E, provides: 

"The Commonwealth shall have the right to appeal to the Appeals 

Court a decision by a judge granting a motion to dismiss a 

complaint or indictment . . . ."
15

of a portion of an indictment (e.g., a sentence enhancement) as 

opposed to the dismissal of an indictment in its entirety.

In Pelletier, 449 Mass. at 395-396, we determined that the 

Commonwealth may not proceed as a matter of right under § 28E 

and rule 15 (a) (1) where it seeks to appeal from only the 

dismissal of subsequent offense charges. Pelletier involved a 

charge of operating a motor vehicle while under the influence of 

intoxicating liquor, third offense, under G. L. c. 90, 

§ 24 (1) (a) (1). Pelletier, supra at 393. The Commonwealth 

filed a petition pursuant to G. L. c. 211, § 3, seeking review 

of a judge's decision to sentence the defendant as a first-time 

offender despite the subsequent offense portion of the 

indictment. Id. at 394.

In concluding that the G. L. c. 211, § 3, petition was 

proper,16 we stated that it was "uncertain" whether the 

Commonwealth could have appealed the trial judge's ruling 

pursuant to § 28E and rule 15 (a) (1). Id. at 395. Next, we 

noted that the subsequent offense portion of a charge "does not 

create an independent crime," that it "concerns only the 

 

16 "Relief under G. L. c. 211, § 3, is available only in 

extraordinary circumstances." Jaynes v. Commonwealth, 436 Mass. 

1010, 1011 (2002), quoting Victory Distribs., Inc. v. Ayer Div. 

of the Dist. Court Dep't, 435 Mass. 136, 137 (2001). "It is not 

available where the petitioning party has or had 'adequate and 

effective avenues other than G. L. c. 211, § 3, by which to seek 

and obtain the requested relief.'" Jaynes, supra, quoting 

Lanoue v. Commonwealth, 427 Mass. 1014, 1015 (1998).
16

punishment to be imposed if a defendant is convicted of the 

underlying crime and the prior offenses are proved," and that 

"[t]he defendant's sentence on the underlying charge in the 

complaint is . . . 'inextricably bound' with the plea judge's 

treatment of the subsequent offense portion of the complaint"

(citations omitted). Id. at 395-396. We then concluded that

"an appeal from a 'dismissal' of only that portion of the 

complaint charging a subsequent offense may not lie." Id. at 

396.

The Commonwealth argues that this holding is incorrect.17 

It contends that, because rule 15 (a) (1) is the only procedural 

mechanism by which the Commonwealth may appeal from a dismissal, 

prohibiting the appeal from the dismissal of subsequent offense 

charges undermines the purpose of § 28E. In revisiting the 

matter, we agree with the Commonwealth and conclude that, 

notwithstanding the reasoning in Pelletier, the Commonwealth may 

take an appeal from the dismissal of the sentence enhancement 

portion of an indictment pursuant to § 28E by way of rule

15 (a) (1).

 

17 Because the Commonwealth is able to obtain relief under 

G. L. c. 211, § 3, in this case, the question whether it should 

be allowed to proceed pursuant to rule 15 (a) (1) is moot. 

Nevertheless, we address the question because "the situation 

presented is 'capable of repetition, yet evading review.'" 

Boelter v. Selectmen of Wayland, 479 Mass. 233, 238 (2018), 

quoting Seney v. Morhy, 467 Mass. 58, 61 (2014).
17

We have highlighted the important jurisprudential interests 

served generally by a right to appeal, including consistent 

treatment of similar cases and the orderly development of a body 

of law. See Burke v. Commonwealth, 373 Mass. 157, 160 (1977). 

Appellate review also ensures the proper administration of 

justice in individual cases. See, e.g., Swift v. American Mut. 

Ins. Co. of Boston, 399 Mass. 373, 375 n.5 (1987).

These interests apply with equal force not only to a review 

of the proceedings once a trial has concluded, but also to the 

review of pretrial decisions that terminate criminal proceedings 

prior to a trial being held. An appeal from a trial judge's

dismissal of an indictment pursuant to § 28E and rule 15 (a) (1) 

"allow[s] the Commonwealth to reinstitute proceedings terminated 

because of an incorrect ruling in the trial court, . . . but, on 

the other hand, . . . allow[s] [appellate courts] to affirm 

preliminary rulings which, in effect, put an end to a particular 

prosecution." Burke, 373 Mass. at 160. The absence of a 

mechanism to appeal from a decision that terminates a criminal 

proceeding could "leave a class of cases, many of which involve 

serious crimes, lost either to further prosecution or any 

appellate review." Id.

A sentence enhancement charge cannot be brought alone;

instead, it must accompany a substantive criminal charge. See

Bynum v. Commonwealth, 429 Mass. 705, 709-710 (1999). However, 
18

like the underlying felony charges they accompany, sentence 

enhancements must be included in charging documents and voted on 

by a grand jury. See G. L. c. 278, § 11A. See also

Commonwealth v. Miranda, 441 Mass. 783, 789 (2004) (indictments 

including repeat offender charges must adequately notify 

defendant of crime charged and jeopardy faced); Commonwealth v. 

Fernandes, 430 Mass. 517, 521-522 (1999), cert. denied, 530 U.S. 

1281 (2000) (repeat offender component should appear in 

indictment). Subsequent offense charges are prosecuted in a 

separate proceeding, only if and after the defendant has been 

convicted of the underlying substantive offense. G. L. c. 278, 

§ 11A.18 Thus, when a judge dismisses the sentence enhancement 

portion of an indictment, he or she is terminating that 

 

18 General Laws c. 278, § 11A, provides that when a 

defendant is charged with being a repeat offender, his or her 

guilt as to the underlying charge is first determined,

"then before sentence is imposed, the defendant shall be 

further inquired of for a plea of guilty or not guilty to 

that portion of the complaint or indictment alleging that 

the crime charged is a second or subsequent offense. If he 

pleads guilty thereto, sentence shall be imposed; if he 

pleads not guilty thereto, he shall be entitled to a trial 

by jury of the issue of conviction of a prior offense, 

subject to all of the provisions of law governing criminal 

trials. . . . The court may, in its discretion, either 

hold the jury which returned the verdict of guilty of the 

crime, the trial of which was just completed, or it may 

order the impanelling of a new jury to try the issue of 

conviction of one or more prior offenses. Upon the 

return of a verdict, after the separate trial of the issue 

of conviction of one or more prior offenses, the court 

shall impose the sentence appropriate to said verdict."
19

particular proceeding. See Pelletier, 449 Mass. at 396 (G. L. 

c. 278, § 11A, requires defendants charged with sentence 

enhancements "to be tried in a two-step, bifurcated procedure"). 

See also Miranda, 441 Mass. at 788 (§ 11A requires defendant "to 

be tried . . . first, on the underlying substantive crime and, 

then, in a separate proceeding, on that component of the charge 

referring to the crime as a second or subsequent offense").

Because an unrestrained right to pretrial appeals by the 

Commonwealth may be burdensome on defendants (and the courts), 

G. L. c. 278, § 28E, limits such appeals to circumstances in 

which the trial judge's decision forecloses the Commonwealth's 

opportunity to go forward with the prosecution altogether. 

Burke, 373 Mass. at 160. See Commonwealth v. Cavanaugh, 366 

Mass. 277, 279 (1974) ("interlocutory appeals and reports should 

not be permitted to become additional causes of the delays in 

criminal trials which are already too prevalent").19 As a motion 

judge who grants a motion dismissing the subsequent offense 

portion of a charge terminates a separate proceeding 

 

19 Section 28E expressly authorizes the Commonwealth to 

appeal from certain interlocutory decisions granting motions to 

suppress, as such decisions "so often . . . in practical effect, 

terminate the proceedings." Commonwealth v. Yelle, 390 Mass. 

678, 685 (1984). See Commonwealth v. Anderson, 401 Mass. 133, 

135 (1987) (decisions excluding Commonwealth's evidence only 

appealable under Mass. R. Crim. P. 15 "if, as a practical 

matter, that ruling [if permitted to stand] would terminate the 

prosecution").
20

adjudicating the issue of conviction of prior offenses that was 

included in an indictment, there is no reason that an appeal 

should not lie under § 28E. See G. L. c. 278, §§ 11A, 28E. If 

the Commonwealth is denied the ability to seek an appeal from

the dismissal of subsequent offense charges, those charges might 

be "lost either to further prosecution or any appellate 

review."20 Burke, 373 Mass. at 160.

Finally, the right to appeal from decisions interpreting 

these statutes helps to ensure that they are enforced uniformly, 

and that the Legislature's penological goals are realized.21

"Adherence to the principle of stare decisis provides 

continuity and predictability in the law, but the principle is 

not absolute. No court is infallible, and this court is not 

barred from departing from previous pronouncements if the 

 

20 The Commonwealth has sometimes been successful obtaining 

review of the dismissal of sentence enhancement portions of 

indictments under G. L. c. 211, § 3, as in this case. We note,

however, that "[o]ur general superintendence power under G. L. 

c. 211, § 3, is extraordinary and to be exercised sparingly, not 

as a substitute for the normal appellate process or merely to 

provide an additional layer of appellate review after the normal 

process has run its course." Scott v. Attorney Gen., 448 Mass. 

1002, 1003 (2006), quoting Scott v. District Attorney for the 

Norfolk Dist., 445 Mass. 1022, 1022 (2005). For that reason, it 

does not provide the right of appeal that the Commonwealth is 

entitled to under § 28E and rule 15 (a) (1).

21 As pointed out in the concurrence, many sentence 

enhancement statutes, such as this one, are indeed harsh; but, 

unless constitutionally infirm, it is the duty of the judicial 

branch to interpret statutes passed by the Legislature, no more 

and no less.
21

benefits of so doing outweigh the values underlying stare 

decisis." Stonehill College v. Massachusetts Comm'n Against 

Discrimination, 441 Mass. 549, 562, cert. denied sub nom. 

Wilfert Bros. Realty Co. v. Massachusetts Comm'n Against 

Discrimination, 543 U.S. 979 (2004). See Pearson v. Callahan, 

555 U.S. 223, 233 (2009) (considerations in favor of stare 

decisis are at nadir in cases involving procedural rules). 

Although we concluded otherwise in Pelletier, we now conclude 

that § 28E and rule 15 (a) (1) permit an appeal as of right from

a dismissal of sentence enhancement charges.22

One additional consideration merits discussion. The 

Commonwealth's inability to review the dismissal of habitual 

criminal portions of indictments under Mass. R. Crim. P. 15, yet 

ability to obtain review under G. L. c. 211, § 3, as in this 

case, undermines the intent of Mass. R. Crim. P. 15 (d), which 

"authorize[s] awards of appellate fees and costs to defendants 

in those situations where the Commonwealth is entitled to 

appeal, or seek leave to appeal, from trial court rulings in a 

defendant's favor." Commonwealth v. Augustine, 470 Mass. 837, 

 

22 Because we conclude that a motion to dismiss an 

indictment or complaint includes the portion of the indictment 

related to a sentence enhancement, we need not consider the 

scope of the meaning of the words "allowing a motion for 

appropriate relief under the Massachusetts Rules of Criminal 

Procedure" in G. L. c. 278, § 28E. See Commonwealth v. 

Therrien, 383 Mass. 529, 533 (1981).
22

840 (2015), quoting Commonwealth v. Phinney, 448 Mass. 621, 622 

(2007). The purpose of this rule is "'to equalize the resources 

of the defendant with those of the Commonwealth' in cases where 

a defendant does not have court-appointed counsel but is forced 

to defend against a Commonwealth appeal; and to prevent a 

defendant's privately retained counsel from being placed 'in the 

untenable position of either volunteering his services on appeal 

or abandoning the defendant.'" Augustine, supra, quoting 

Phinney, supra at 622 n.2. See Gonsalves, 432 Mass. at 616-617 

(discussing at length origin and purposes of rule 15 [d]). 

Where the Commonwealth seeks review under G. L. c. 211, § 3, 

there is no appeal under rule 15, but instead a collateral 

proceeding in the county court. Therefore, the defendant is not 

entitled to reimbursement for costs and attorney's fees 

associated with defending the Commonwealth's claim. See 

Commonwealth v. Shaughessy, 455 Mass. 346, 353 (2009). In cases 

involving the dismissal of sentence enhancement charges, we do 

not believe that this result is consistent with the intent of 

rule 15 (d).

3. Timeliness of Commonwealth's G. L. c. 211, § 3, 

petition. The defendant contends that the single justice abused 

her discretion by failing to deny the Commonwealth's motion to 

enlarge the time to file a petition under G. L. c. 211, § 3. 

This argument has no merit. The Commonwealth's application was 
23

based on the erroneous concern that the time limits of Mass. R. 

A. P. 4, as amended, 430 Mass. 1603 (1999), apply generally to 

superintendence petitions filed before a single justice of this 

court under G. L. c. 211, § 3. Because such a petition is not 

an appeal governed by the rules of appellate procedure, the time 

limits set forth in rule 4 of those rules do not apply. See 

Mass. R. A. P. 1 (a), 365 Mass. 844 (1974) (defining scope of 

rules as applying to "procedure in appeals to an appellate 

court"). Although there may be circumstances in which a single 

justice might deny such a petition as untimely, the decision 

would not be governed by rule 4. The single justice did not 

abuse her discretion in considering the Commonwealth's petition 

in this case.

Conclusion. For the foregoing reasons, the judgment of the 

single justice is vacated, and the case is remanded to the 

county court for entry of an appropriate order by the single 

justice consistent with this opinion.

So ordered.
GANTS, C.J. (concurring, with whom Lowy, J., joins). I 

agree with the court that, given the legislative evolution of 

the habitual criminal statute, G. L. c. 279, § 25 (a), we can 

discern that the Legislature did not intend to require the 

separate prosecution of predicate offenses, and that we must 

respect that legislative intent. I write separately only to 

make a few observations that suggest that § 25 (a) warrants 

revisiting by the Legislature.

First, the legislative intent that we effectuate today is 

that of the Legislature in 1887. As the court explains, the 

Legislature that year chose to reenact a version of the habitual 

criminal statute that did not require the separate prosecution 

of predicate offenses, as opposed to an earlier version that did 

include that requirement, thus reflecting a "conscious decision" 

not to require separate prosecutions. Ante at , quoting 

Commonwealth v. Resende, 474 Mass. 455, 466 (2016). This 

decision has remained undisturbed since then, even though our 

understanding of what is wise and just in a criminal justice 

system has changed dramatically in the past 131 years. In 1887, 

the punishment for a capital offense entailed "hanging the 

convict by the neck until he is dead." Pub. St. 1882, c. 215, 

§ 37. Those convicted of an offense punishable by imprisonment 

could be sentenced to solitary confinement -- in which case they 

would be fed "bread and water only" -- and hard labor. See Pub. 
2

St. 1882, c. 215, § 3; Pub. St. 1882, c. 220, § 39; Pub. St. 

1882, c. 221, § 29. Needless to say, attitudes about crime and 

punishment have changed significantly since then.

Second, the sanction imposed by the habitual criminal 

statute has become considerably more severe: whereas the 1887 

statute provided that habitual criminals "shall be punished by 

imprisonment . . . for twenty-five years," St. 1887, c. 435, 

§ 1, the current statute provides that they "shall be punished 

by imprisonment . . . for the maximum term provided by law." 

G. L. c. 279, § 25 (a). For many offenses, the maximum term 

provided by law is life. See, e.g., G. L. c. 265, § 17 (armed 

robbery); G. L. c. 265, § 18A (armed assault in dwelling); G. L. 

c. 265, § 18C (armed home invasion); G. L. c. 266, § 14 (armed 

or assaultive burglary). This means that a habitual criminal 

who in 1887 would have faced twenty-five years of imprisonment 

could today face the far harsher punishment of imprisonment for 

life.

Third, significant changes in other sentencing laws have 

caused the habitual criminal statute to operate more harshly 

today than it has in the past. For example, in 1993 the 

Legislature enacted the so-called Truth in Sentencing Act, 

St. 1993, c. 432, which modified sentencing laws in 

Massachusetts such that, among other things, prisoners could no 

longer obtain early release as a result of statutory good time, 
3

St. 1993, c. 432, § 10, and judges no longer had the option of 

imposing "reformatory" sentences (commonly referred to as 

"Concord" sentences).1 St. 1993, c. 432, §§ 14-15, 17-20. See 

Commonwealth v. Russo, 421 Mass. 317, 319 n.2 (1995). In 

addition, in 2012 the Legislature amended the law governing 

parole eligibility for habitual criminals; habitual criminals

are now eligible for parole only upon serving two-thirds of 

their maximum sentence, G. L. c. 127, § 133B, as opposed to onehalf of their maximum sentence, as had been the case under prior 

law. Compare St. 2012, c. 192, § 40, with St. 1955, c. 770, 

§ 70. As a result of these changes, habitual criminals who may 

in the past have had an opportunity to obtain early release 

 

1 Prior to its abolition, the "Concord" sentence was "a 

sentencing option widely used by Superior Court judges in the 

1980's." Commonwealth v. Thurston, 53 Mass. App. Ct. 548, 554 

(2002). Defendants who received Concord sentences -- typically 

those who were "deemed capable of rehabilitation" -- would be 

sentenced not to State prison at the Massachusetts Correctional 

Institution (M.C.I.) at Walpole (now M.C.I., Cedar Junction) but 

to M.C.I., Concord (for male defendants) or M.C.I., Framingham 

(for female defendants). Id. at 555. These defendants would 

receive apparently long sentences, ranging up to the maximum 

term provided by law, but would become eligible for parole after 

serving only "a small fraction . . . of the stated sentence." 

Id. See Massachusetts Sentencing Commission, Survey of 

Sentencing Practices: Truth-in-Sentencing Reform in 

Massachusetts 6 (Oct. 2000). The Concord sentence was available 

as a sentencing option even where the defendant was convicted of 

an offense with a mandatory minimum sentence. See Commonwealth

v. Brown, 431 Mass. 772, 778 (2000) (Concord sentence "was a 

general sentencing option" that was "not incompatible" with 

mandatory minimum sentence).
4

through statutory good time or to become eligible for parole at 

an earlier time are no longer able to do so.

Fourth, while I agree with the court's interpretation of 

the habitual criminal statute because it comports with the 

Legislature's intent, I also note that this interpretation does 

not comport with the common understanding of what constitutes a 

"habitual criminal." A "habitual criminal" is commonly 

understood to be someone who has engaged in recidivism -- that 

is, an individual who, after having been punished for his or her 

crimes, nevertheless goes on to commit further crimes. See 

Black's Law Dictionary 827 (10th ed. 2014) (referencing 

definition of "recidivist" under definition of "habitual

criminal"); id. at 1461 (defining "recidivist," also termed 

"habitual criminal," as "[a] criminal who, having been punished 

for illegal activities, resumes those activities after the 

punishment has been completed"). Under this common 

understanding of the term, an individual is considered a 

habitual criminal only if he or she continues to commit serious 

crimes after repeatedly being punished for those crimes. 

Generally, habitual criminal statutes, such as G. L. c. 279, 

§ 25 (b), impose severe punishment only after it is apparent 

that repeated sentences to prison failed to deter or 

rehabilitate the defendant, because the defendant continued to 

commit serious crimes after having twice served prison time for 
5

earlier crimes.2 The habitual criminal statute in § 25 (a) is at 

odds with this common understanding. Because it does not 

require the separate and sequential prosecution of predicate 

offenses, it applies even where the predicate offenses both 

occurred before any punishment. Thus, for instance, if an 

individual struggling with drug addiction and desperate for 

money to purchase oxycodone robs one convenience store in August 

and another in September, serves a concurrent three-year prison 

sentence for each of those robberies, and then commits a new 

felony after his or her release from custody, he or she would be 

considered a habitual criminal under § 25 (a) -- even though we 

generally would not label this individual as such -- and would 

have to receive the maximum sentence permitted by law for the 

new offense.

For these reasons, I believe that it is time to reconsider 

the wisdom and fairness of the habitual criminal statute. I 

encourage the Legislature to do so.

 

2 General Laws c. 279, § 25 (b), imposes the maximum 

sentence without the possibility of probation or parole for 

"habitual offenders." In order to be considered a habitual 

offender, an individual must have been convicted two times 

previously of certain enumerated violent offenses, "arising out 

of 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."