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SJC-12789

COMMONWEALTH vs. DARRYL THOMAS.

March 23, 2020.

Firearms. Assault and Battery by Means of a Dangerous Weapon. 

Practice, Criminal, Sentence.

This matter comes before the court on further appellate 

review, limited to certain issues, detailed infra, concerning 

the defendant's conviction of unlawful possession of a firearm 

while in the commission of a felony under G. L. c. 265, § 18B. 

For the reasons stated infra, we affirm that conviction but on 

grounds different from those stated by the Appeals Court.

A jury convicted the defendant of multiple offenses related 

to his participation in a fight outside a bar in Worcester.1 

After a subsequent bench trial on the sentencing enhancement

portions of his indictments, the defendant was sentenced as a 

so-called "armed career criminal II"2 pursuant to G. L. c. 269, 

 

1 The jury convicted the defendant of two counts of assault 

and battery by means of a dangerous weapon, see G. L. c. 265, 

§ 15A (b), and one count each of unlawful possession of a 

firearm, see G. L. c. 269, § 10 (a), unlawful possession of 

ammunition, see G. L. c. 269, § 10 (h), unlawful possession of a 

loaded firearm, see G. L. c. 269, § 10 (n), and unlawful 

possession of a firearm while in the commission of a felony, see 

G. L. c. 265, § 18B. The jury acquitted the defendant of armed 

assault with intent to murder, see G. L. c. 265, § 18 (b).

2 We have previously noted that the term "armed career 

criminal," which derives from the Federal Armed Career Criminal 

Act of 1984, codified as amended at 18 U.S.C. § 924(e) (2012), 
2

§ 10G (b), with respect to two firearm violations,3 and as a 

habitual criminal pursuant to G. L. c. 279, § 25 (a), with 

respect to two counts of assault and battery by means of a 

dangerous weapon. He received a separate sentence in connection 

with his conviction under § 18B.

The defendant appealed from his convictions, and then filed 

a motion for a new trial. After the motion for a new trial was 

denied, the defendant's direct appeal was consolidated with the 

appeal from the denial of that motion. A panel of the Appeals 

Court reversed the judgments under G. L. c. 269, § 10G (b), and 

remanded for sentencing pursuant to G. L. c. 269, § 10G (a) (a 

so-called "armed career criminal I"), and it affirmed the 

remaining judgments and the denial of the motion for a new 

trial. See Commonwealth v. Thomas, 95 Mass. App. Ct. 1101 

(2019).

With respect to the conviction under § 18B, the panel

reviewed the defendant's unpreserved claim that the conviction 

could not stand because the indictment was not linked to any of 

the other charges, and all of the other charges were 

disqualified from serving as the "root" felony4 for the § 18B 

charge because of the prohibition on double jeopardy. While 

agreeing with the defendant that his other charges could not 

provide the root felony for the § 18B charge, the panel

concluded that there was no substantial risk of a miscarriage of 

justice because, in its view, § 18B does not require the root 

felony to be a charged offense, and in this case there was 

evidence of an "uncharged strike" of the victim that could have 

served as the root felony for the § 18B conviction.

The defendant sought further appellate review from this 

court on a number of issues. As noted supra, we granted his 

 

is more appropriately used "only to characterize those with 

three prior convictions of a violent crime or serious drug 

offense who are sentenced under [G. L. c. 269,] § 10G (c)." 

Commonwealth v. Anderson, 461 Mass. 616, 626 n.10 (2012).

3 After the verdicts, the Commonwealth entered a nolle 

prosequi on the charge under G. L. c. 269, § 10 (n), on the 

ground that it was duplicative.

4 By "root" felony, we refer to the offense referenced in 

G. L. c. 265, § 18B, "in addition to" which the sentence for the 

§ 18B violation is imposed.
3

application limited to the issues concerning the conviction of

unlawful possession of a firearm while in the commission of a 

felony under § 18B.5

We begin our analysis with the language of G. L. c. 265, 

§ 18B, which provides in relevant part:

"Whoever, while in the commission of or the attempted 

commission of an offense which may be punished by 

imprisonment in the state prison, has in his possession or 

under his control a firearm, rifle or shotgun shall, in 

addition to the penalty for such offense, be punished by 

imprisonment in the state prison for not less than five 

years . . . ."

The crux of the defendant's argument is that his § 18B 

conviction must be vacated because the Commonwealth failed to 

indict him for and convict him of an appropriate root felony. 

The defendant's argument is twofold. First, he argues that his 

convictions of assault and battery by means of a dangerous 

weapon cannot serve as the root felony for his § 18B conviction

because such an outcome would be contrary to legislative intent, 

and it would violate principles of double jeopardy. Second, the 

defendant argues that, contrary to the Appeals Court's ruling, 

the prosecution may not rely on uncharged conduct as the root 

felony for a § 18B conviction. We disagree with the defendant

as to the first contention, and therefore, we do not reach the 

second.

Here, the defendant was convicted of two counts of assault 

and battery by means of a dangerous weapon, either of which may 

serve as the root felony for his § 18B conviction.6 The 

defendant's arguments to the contrary are unpersuasive. Nothing 

in § 18B prevents the Commonwealth from relying on a conviction 

of assault and battery by means of a dangerous weapon as the 

root felony for a § 18B charge. Although a prior version of the 

 

5 As to the other convictions and enhancements, the decision 

of the Appeals Court stands.

6 After instructing the jury on the elements of G. L. 

c. 265, § 18B, the trial judge further instructed that "as a 

matter of law, assault and battery by means of a dangerous 

weapon and assault with intent to murder are offenses punishable 

by imprisonment in the state prison." The jury were previously 

instructed as to the elements of those two felonies.
4

statute stated that "[t]his section shall not apply in the case 

of any felony in which the offense consists in whole or in part 

of using a dangerous weapon" (see Commonwealth v. Hawkins, 21 

Mass. App. Ct. 766, 768 [1986]), the Legislature removed this

restriction when it amended the statute in 1998. See St. 1998, 

c. 180, § 56. The restriction is thus no longer part of the 

statute.7

We also find no merit to the defendant's argument, based on 

our opinion in Commonwealth v. Richardson, 469 Mass. 248 (2014), 

that a sentence under § 18B may not be "stack[ed]" on top of a 

sentence that has been subject to an enhancement under the 

habitual criminal statute, G. L. c. 279, § 25 (a). Our opinion 

in Richardson dealt with the interplay between G. L. c. 269, 

§ 10 (d), and a provision of the so-called armed career criminal 

statute, G. L. c. 269, § 10G. See id. at 251-253. Those two 

statutes "do not create independent crimes, but enhance the 

sentence for the underlying crime." Id. at 252, quoting 

Commonwealth v. Johnson, 447 Mass. 1018, 1019 (2006). As to 

those statutes, in the absence of a clear statement of 

legislative intent as to how the two were meant to interact, we 

declined to presume that the Legislature intended "to impose 

multiple sentencing enhancements to a single underlying 

offense." Richardson, supra at 254.

Section 18B stands in marked contrast to the statutes at 

issue in Richardson, as it creates an independent crime 

punishable by a separate sentence that the Legislature has 

required to be served "in addition to" the penalty for the 

underlying offense. G. L. c. 265, § 18B. Cf. Bynum v. 

Commonwealth, 429 Mass. 705, 709 (1999) (contrasting charge of 

subsequent drug offense under G. L. c. 94C, § 32A [d], which 

results in single, enhanced sentence for underlying crime, with 

 

7 By removing this restriction, the Legislature brought the 

Massachusetts statute further into alignment with its Federal 

counterpart, 18 U.S.C. § 924(c) (2012), which had been amended 

in 1984 to specify that it would apply "regardless of whether 

the underlying felony statute 'provides for an enhanced 

punishment if committed by the use of a deadly or dangerous 

weapon or device.'" United States v. Gonzales, 520 U.S. 1, 10 

(1997), quoting the Comprehensive Crime Control Act of 1984, 

Pub. L. No. 98-473, § 1005(a), 98 Stat. 2138-2139. See

Gonzales, supra (observing that Congress's 1984 enactment 

"repudiated the result [the Court] reached in Busic v. United 

States, 446 U.S. 398 [1980]").
5

charge of committing drug violation in school zone under G. L. 

c. 94C, § 32J, which results in "an additional consecutive 

sentence" to be served from and after sentence for underlying 

offense).8

In addition, because the Legislature has clearly indicated 

that a sentence for a conviction under § 18B is to be served "in 

addition to" the sentence for the underlying felony, the 

imposition of both sentences does not violate principles of 

double jeopardy. See Commonwealth v. Alvarez, 413 Mass. 224, 

232 (1992) (noting that "same evidence" rule expressed in Morey

v. Commonwealth, 108 Mass. 433, 434 [1871], is not 

constitutionally based and that "[w]here the Legislature has 

specifically authorized cumulative punishment under two 

statutes, even if the two statutes proscribe the same conduct 

under the Morey test, a court's job of statutory construction is 

terminated, and the intent of the Legislature is to be 

enforced"). Therefore, the defendant's conviction under § 18B 

did not give rise to a substantial risk of a miscarriage of 

justice.

Because we conclude that the defendant's convictions of 

assault and battery by means of a dangerous weapon may provide 

the root felony for his conviction under G. L. c. 265, § 18B, we 

need not, and do not, reach the further question whether the 

Commonwealth may ever rely on uncharged conduct as the root 

felony for a § 18B conviction, and we express no view on the 

reasoning contained in the Appeals Court's memorandum and order 

as to that issue. Instead, we leave the question open in 

anticipation of a case that necessitates its resolution.

 

8 Although § 18B requires a second, separate sentence that 

is imposed "in addition to" the sentence for the root felony, it 

need not be a consecutive sentence. The sentence for the § 18B 

offense can be concurrent with the sentence for the root felony 

and still be "in addition to" it. Contrast G. L. c. 94C, § 32J 

(requiring separate consecutive sentence for certain controlled 

substance offenses committed within school zones; "such sentence 

shall begin from and after the expiration of the sentence for" 

underlying offense). Nor does § 18B require a mandatory minimum 

sentence of five years for a first offense. See Commonwealth v. 

Hines, 449 Mass. 183, 191-192 (2007). A judge, for instance, 

may sentence a defendant to not less than two years and not more 

than five years; the maximum sentence, however, must be no less 

than five years.
6

Accordingly, with respect to the defendant's conviction 

under G. L. c. 265, § 18B, the judgment is affirmed.

So ordered.

Madeline G. Blanchette (Barbara Munro also present) for the 

defendant.

Nathaniel Beaudoin, Assistant District Attorney, for the 

Commonwealth.

Christopher DeMayo, for Shaun O. Harrison, amicus curiae, 

submitted a brief.