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SJC-11849

COMMONWEALTH vs. ADMILSON RESENDE.

Plymouth. December 10, 2015. - June 9, 2016.

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

Hines, JJ.

Firearms. Practice, Criminal, Motion to suppress, Sentence.

Indictments found and returned in the Superior Court 

Department on August 26, 2011.

Pretrial motions to suppress evidence were heard by Charles 

J. Hely, J., and a motion for reconsideration was considered by 

him; and the cases were heard by Frank M. Gaziano, J.

The Supreme Judicial Court granted an application for 

direct appellate review.

Patrick Levin, Committee for Public Counsel Services, for 

the defendant.

Carolyn A. Burbine, Assistant District Attorney, for the 

Commonwealth.

BOTSFORD, J. In a jury-waived trial in June, 2014, a 

Superior Court judge found the defendant, Admilson Resende, 

guilty of several firearms offenses, each of which had 
2

associated with it an armed career criminal sentence enhancement 

charge under G. L. c. 269, § 10G (§ 10G), the Massachusetts 

armed career criminal act (Massachusetts ACCA). After a 

separate jury-waived trial on the enhancement charges, the judge 

sentenced the defendant under § 10G (c) to a mandatory minimum 

State prison term of from fifteen years to fifteen years and one 

day. In his appeal from these convictions, the defendant 

presents an unanswered question about the proper interpretation 

of § 10G, which provides sentence enhancements for designated 

firearms offenses where a defendant previously has been 

convicted of one or more "violent crimes" or "serious drug 

offenses," or a combination of the two. For reasons we shall 

explain, we interpret § 10G to mean that where the previous 

convictions of predicate offenses forming the basis of the 

sentence enhancement charge were all part of a single 

prosecution, they properly should be treated as a single 

predicate conviction. In this case, therefore, the defendant's 

previous drug offense convictions, which were part of a single 

prosecution, should have been considered as one previous 

conviction that would be punishable under § 10G (a) rather than 

§ 10G (c).1

 

1 In addition to his claim concerning the sentence imposed 

under G. L. c. 269, § 10G (§ 10G), the defendant challenges the 

denial of his pretrial motions to suppress evidence. We 
3

1. Background. a. Prior drug convictions. On August 22, 

2006, when the defendant was nineteen years old, he was arrested 

and charged with five counts of distribution of cocaine and one 

count of possession of cocaine with intent to distribute, G. L. 

c. 94C, § 32A (a). The five distribution counts arose from 

hand-to-hand transactions that took place on five different days 

within a seventeen-day period from August 5 through August 22, 

2006; the possession with intent count arose from the 

defendant's actions on August 22, 2006. All of the counts were 

included in a single set of charges. On January 23, 2007, the 

defendant pleaded guilty to the distribution charges as part of 

a single plea proceeding, and received concurrent house of 

correction sentences.2

b. Convictions at issue in this appeal. i. Procedural 

history. On August 26, 2011, a grand jury returned indictments 

against the defendant for unlawful possession of a firearm, 

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

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

ammunition without a firearm identification card, G. L. c. 269, 

§ 10 (h); and unlawful possession of cocaine with intent to 

distribute, subsequent offense, G. L. c. 94C, § 32A (c) and (d). 

 

conclude in this opinion that the defendant's motions to 

suppress were properly denied.

2 The possession with intent charge was placed on file.
4

Each of the firearms offenses carried a concomitant sentence 

enhancement charge under § 10G. On May 7, 2012, the defendant 

filed motions to suppress the physical evidence seized by the 

police and his postarrest statements. After an evidentiary 

hearing, a Superior Court judge (motion judge) denied the 

motions on December 4, 2012. On June 30, 2014, at the 

conclusion of a bench trial on all charges other than the 

sentence enhancement charges, a different Superior Court judge 

(trial judge) found the defendant guilty of unlawful possession 

of a firearm, unlawful possession of a loaded firearm, and 

unlawful possession of a firearm or ammunition without a firearm 

identification card; he found the defendant not guilty of 

possession of cocaine with intent to distribute. Thereafter, 

the trial judge in a separate bench trial found the defendant 

guilty of two of the armed career criminal sentence enhancement 

charges as a person previously convicted of three or more 

serious drug offenses, and imposed the mandatory minimum 

sentence.3,4

 

3 The defendant's conviction of unlawful possession of a 

loaded firearm and the accompanying armed career criminal charge 

were dismissed by agreement.

4 At the conclusion of the trial on the sentence enhancement 

charges, the trial judge denied the defendant's request for a 

required finding that each of the previous drug charges did not 

constitute a separate predicate offense under the Massachusetts 

armed career criminal act (ACCA).
5

ii. Facts.

5 On May 28, 2011, State police Trooper Erik 

Telford was on patrol in Brockton with Sergeant Michael 

McCarthy. Telford had substantial experience working as a 

member of law enforcement units focused on individuals involved 

in guns, violence, and drugs in urban areas, and he had worked 

specifically in Brockton and with the Brockton police. At 

approximately 11:40 P.M., Telford and McCarthy, driving in an 

unmarked police vehicle, were near the intersection of Ames and 

Intervale Streets, where, on one corner, a bar was located. The

neighborhood was an area where Telford had been assigned to work 

since 2003, and he had made numerous arrests for gun offenses as 

well as drug offenses in this area. Telford saw a young man, 

the defendant, walking with two women on the opposite side of 

Intervale Street, and believed that the defendant made eye 

contact with him. The defendant was wearing a long polyester 

jacket that extended past his hips and covered his pants 

pockets. Telford noticed the jacket because it was not a 

particularly cold night and Telford himself was not wearing a 

jacket. Telford saw the defendant move his hand under the 

jacket and into the waistband area underneath his shirt, and 

 

5 The facts are taken primarily from the findings made by 

the motion judge in ruling on the defendant's motions to 

suppress; the judge's findings are themselves based primarily on 

the testimony of Trooper Erik Telford and Sergeant Michael 

McCarthy of the State police, witnesses whom the motion judge 

found to be "highly credible."
6

became suspicious that the defendant was carrying a gun. 

Telford also believed that the defendant appeared similar to a 

man depicted in a bulletin that had been posted at various 

locations in the Brockton police station.6

Telford turned his vehicle around, "and waited in the 

vicinity of the [bar]." As he did so, the defendant and the two 

women walked through the bar's parking lot toward the front door 

of the bar.7 Telford and McCarthy left their vehicle and 

approached the defendant, while wearing clothing marked "State 

Police," with their badges and guns clearly visible. As he 

approached, Telford noticed that the defendant had his right 

hand out of his pocket and at his waist area. Telford asked the 

 

6 On or about May 25, 2011, Brockton police Officer Robert

Saquet posted bulletins containing a photograph of a young 

African-American man holding a "TEC-9" automatic pistol in the 

Brockton police station detectives' office and the report room, 

where uniformed officers write their reports; the name of the 

man depicted in the photograph was not provided. Trooper Erik 

Telford had seen one of the bulletins while in the Brockton 

police station within a few days of May 28, 2011. Although at 

some point the Brockton police learned the name of the person 

depicted, who was not the defendant, and added the name to the 

bulletin, the original version viewed by Telford had not had a 

name added to it.

The motion judge found that the defendant shared similar 

basic characteristics with the man in the bulletin, including 

height, approximate age, facial hair, and wearing of a baseball 

cap, and noted that these similarities could apply to many men 

in the Brockton area.

7 The motion judge did not make any finding about precisely 

when the two police officers drove into the bar parking lot 

itself, or about where the officers parked their vehicle in 

relation to the entrance to the bar.
7

defendant his name, and the defendant gave his correct name in 

response. Telford then remembered that he had encountered the 

defendant in connection with a search of a residence pursuant to 

a warrant -- a search that had resulted in the discovery of two 

guns. At this point, Ryan Guinta, a bouncer at the bar, came 

out of the bar and told the officers that the defendant had been 

in the bar all night. Telford knew that this was not true, and 

told Guinta to go back inside, which he did.

Telford motioned to the defendant to follow him to a 

different part of the parking lot where they could speak 

further. As the defendant walked to this location, Telford 

noticed that the defendant had his right hand in his pocket but 

was holding it close to his body at the waistband area, and that 

the defendant "bladed away" from him.8 During the ensuing 

conversation, the defendant, with his right hand in his pocket, 

made movements that appeared to Telford to be retention checks -

- touching the area where a weapon or heavy object is located to 

ensure it stays in place because it is not holstered. Telford 

recognized these types of movements as being consistent with

someone who is carrying a weapon in his waistband. Telford 

asked the defendant to remove his right hand from his pocket, 

 

8 Telford testified that "blading away" refers to the action 

of creating a thin profile of oneself with respect to another 

viewpoint, effectively hiding one side of the body from the

other person's view.
8

which the defendant did briefly, before putting it back into the 

pocket. Telford asked the defendant again to remove his right 

hand from his pocket, which he did, and then the defendant 

touched an area near his waistband, consistent with another 

retention check. After noticing that the defendant was looking 

from left to right, as if to attempt to flee, Telford asked him 

to lift his shirt, twice. The defendant did so, but both times 

exposed only the left side of his waistband, where Telford saw 

nothing. At this point, because the officers were convinced 

that the defendant was carrying a gun, they decided to handcuff 

him, but before the handcuffs were applied, Telford reached to 

the right side of the defendant's waistband and retrieved a gun 

containing one round of ammunition in the chamber and at least 

one other round in the gun magazine. The officers arrested the 

defendant for unlawfully carrying a firearm and advised him of 

the Miranda rights. After stating that he understood his 

rights, the defendant said that he had obtained the gun in 

Providence, Rhode Island, the cost was $750, the gun was not 

stolen, and it had serial numbers. In a subsequent search of 

the defendant incident to his arrest, the officers found plastic 

bags containing cocaine and, when asked if the bags contained 

more than fourteen grams, the defendant responded that they did 

not.
9

2. Discussion. a. Motions to suppress. On review of a 

ruling on a motion to suppress, "we accept the judge's 

subsidiary findings of fact absent clear error 'but conduct an 

independent review of his ultimate findings and conclusions of 

law'" (citation omitted). Commonwealth v. Scott, 440 Mass. 642, 

646 (2004). We "make an independent determination of the 

correctness of the judge's application of constitutional 

principles to the facts as found" (citation omitted). Id.

The defendant argues that the denial of his motions to 

suppress was error because he was seized without reasonable 

suspicion -- a contention turning primarily on the propriety of 

the motion judge's ruling that no seizure of the defendant 

occurred at least until the defendant was directed to go speak 

with Trooper Telford in a different area of the parking lot from 

where the officers first encountered him. The defendant 

contends that this ruling was incorrect because, contrary to the 

motion judge's findings, the uncontradicted testimony of Telford 

showed that as the defendant approached the front door of the 

bar, the officers "cut off [the defendant's] path of travel and 

immediately got out of their car and approached him" with their 

guns and badges displayed. In doing so, the defendant argues, 

the officers effectuated a seizure of his person at that point, 

because a reasonable person would not have felt free to leave 

under those circumstances. The defendant contends further that, 
10

at this point in time, the officers did not have a reasonable 

suspicion of any criminal activity, and accordingly, all of the 

officers' actions that followed, culminating in the defendant's 

arrest, were constitutionally prohibited and his motions to 

suppress should have been allowed. The Commonwealth argues that 

the motion judge correctly concluded that there was no seizure 

of the defendant until he was directed to a different area of 

the parking lot, at which time the officers had a reasonable 

suspicion that the defendant was illegally carrying a gun, and 

their subsequent, measured actions fit well within the scope of 

a permissible stop, frisk, and seizure pursuant to Terry v. 

Ohio, 392 U.S. 1 (1968). We agree with the Commonwealth.

We reject the defendant's challenge to the motion judge's 

factual findings. As previously stated, the judge did not make 

a specific finding as to when the two officers drove into the 

parking lot,9 but insofar as the findings may suggest that the 

officers entered the parking lot and came to a stop before the 

defendant and his two companions reached the bar's door and at a 

distance that permitted them to do so, the testimony of Sergeant 

McCarthy supports that view.10 Accordingly, we do not agree with 

 

9 See note 7, supra, and accompanying text.

10 McCarthy testified that "when [he] pulled into the 

parking lot with Trooper Telford, . . . the defendant and the 

two females continue[d] to walk towards the entrance of the 

[bar]."
11

the defendant that the judge made clearly erroneous findings 

concerning the initial encounter between the defendant and the 

two officers. Rather, our review of the motion record persuades 

us that the judge was warranted in concluding that the officers' 

exit from their vehicle with their State police identification 

and weapons visible, followed by Telford's question asking the 

defendant for his name, was not itself a stop or seizure in the 

constitutional sense. See, e.g., Commonwealth v. Narcisse, 457 

Mass. 1, 5-6 (2010) (no seizure where officers pulled alongside 

defendant and got out of vehicle, asking defendant's name and 

what he was doing in vicinity); Commonwealth v. Gomes, 453 Mass. 

506, 510 (2009) (defendant not seized when police got out of 

vehicles quickly and approached him as he stood in doorway; no 

indication that police activated blue lights); Commonwealth v. 

Lopez, 451 Mass. 608, 610-614 (2008) (two uniformed officers in 

two marked patrol cruisers followed defendant on bicycle late at 

night; one officer emerged from cruiser, and asked, "Can I speak 

with you?" after which defendant approached him; officer's 

actions did not constitute seizure); Commonwealth v. DePeiza, 

449 Mass. 367, 370-371 (2007) (no seizure where police got out 

of unmarked vehicle and approached defendant, while engaging in 

brief conversation).

The motion judge determined that a limited "intrusion" --

i.e., seizure -- occurred when Telford requested or directed the 
12

defendant to walk to a different part of the parking lot to talk 

to the trooper, and that this seizure was justified in the 

circumstances. We agree. By that point, Telford had observed 

the defendant holding his hand at his waist in a manner that 

Telford believed from his training and experience was consistent 

with someone holding a gun in the waistband of his pants. 

Moreover, before speaking with the defendant at the new location 

in the parking lot, Telford had observed the defendant "blading" 

away from him and making motions with his hand that were 

consistent with weapon retention checks. We also agree with the 

motion judge that Telford's series of increasingly intrusive 

actions that followed -- asking the defendant to take his hands 

out of his pocket, then asking the defendant to raise his shirt, 

then reaching for the defendant's hands and putting them behind 

his back, and then grabbing a gun from the defendant's waist 

area on his right side -- were all reasonable responses to new 

information supplied by the defendant's actions that provided an 

increasingly robust basis for suspecting the defendant was 

holding a concealed gun in his pants on the right side of his 

body. The seizure of the defendant effectuated by Telford and 

McCarthy was constitutionally proper. See DePeiza, 449 Mass. at 

371. Cf. Commonwealth v. Torres, 433 Mass. 669, 675 (2001) 

(officer's actions no more intrusive than necessary at each 
13

phase of increasingly suspicious interaction with defendant and 

passengers in vehicle during traffic stop).

b. Defendant's armed career criminal status. The 

defendant argues that his armed career criminal convictions 

cannot stand because his five previous drug convictions were 

encompassed in a single prosecution. As such, he claims, the 

convictions should be counted as a single predicate offense for 

purposes of § 10G, and therefore within the scope of level one, 

see § 10G (a), rather than level three, see § 10G (c). The 

Commonwealth takes the position that, under § 10G, similar to 

the enhancement scheme under 18 U.S.C. § 924(e) (2006), the 

Federal armed career criminal act (Federal ACCA), each 

qualifying violent crime or serious drug offense of which a 

defendant has previously been convicted represents a separate 

predicate offense for purposes of determining sentence 

enhancement levels, regardless of whether those previous 

convictions were the result of a single or several prosecutions. 

Although this court has considered questions concerning the 

proper interpretation of § 10G in prior cases,11 the issue raised 

here is one of first impression.

 

11 See, e.g., Commonwealth v. Eberhart, 461 Mass. 809 

(2012); Commonwealth v. Anderson, 461 Mass. 616, cert. denied, 

133 S. Ct. 433 (2012); Commonwealth v. Johnson, 461 Mass. 44 

(2011); Commonwealth v. Furr, 454 Mass. 101 (2009). The Appeals 

Court has as well. See, e.g., Commonwealth v. Colon, 81 Mass. 
14

Section 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 

state 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 state 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 

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 state prison for not less than [fifteen] years nor 

more than [twenty] years." (Emphasis added.)

G. L. c. 269, § 10G (a)-(c).12

The question of interpretation before us relates to the 

meaning of the phrase, "having been previously convicted of 

three [qualifying crimes] arising from separate incidences," 

that appears in § 10G (c), and more specifically the meaning of 

 

App. Ct. 8, 12 (2011); Commonwealth v. Ware, 75 Mass. App. Ct. 

220, 222 (2009).

12 Under § 10G (d), any sentence imposed under the statute 

shall not be reduced to less than the minimum mandatory sentence 

or suspended, and the defendant is not eligible for probation or 

parole until he has served the minimum term.
15

the phrase, "arising from separate incidences."13 To answer that 

question, we consider first the meaning of the actual language 

used by the Legislature. See Commonwealth v. Robertson, 467 

Mass. 371, 376 (2014). However, "we also seek guidance from 

[the statute's] legislative history, . . . the language and 

construction of related statutes, . . . and the law of other 

jurisdictions" (citations omitted). Commonwealth v. Welch, 444 

Mass. 80, 85 (2005).

The word "incidences" or "incidence" is not defined in 

§ 10G. Dictionary definitions of "incidence" include "an act or 

the fact or manner of falling upon or affecting: occurrence,"

the "rate, range, or amount of occurrence or influence," 

Webster's Third New International Dictionary 1142 (1993), and

"[t]he frequency with which something occurs, such as crime" or 

"the number of times that something happens," Black's Law 

Dictionary 879 (10th ed. 2014). The word thus appears to focus 

more on the measurement of something's frequency of occurrence 

than on the definition of the "something" itself. In that 

sense, it is distinct from the word "incidents," or "incident."14 

 

13 At issue in this case are the defendant's convictions 

under § 10G (c), but our analysis applies with equal force to 

§ 10G (b).

14 The word "incident" is defined as "a separate unit of 

experience: happening," Webster's Third New International 

Dictionary 1142 (1993), and "[a] discrete occurrence or 
16

But the fact that the Legislature chose not to use the word 

"incidents" provides little direct guidance as to what the 

Legislature meant by selecting "incidences." Nor is the 

statute's legislative history illuminating on this point. 

Section 10G was enacted in 1998 as one section of an omnibus 

piece of legislation entitled, "An Act relative to gun control 

in the Commonwealth," that was designed to provide a stricter 

gun control regime by adding a wide variety of new statutory 

provisions.15 It appears that from the earliest drafts, the 

phrase "arising from separate incidences" was included in what 

is now § 10G, and nothing in these drafts or any other 

legislative materials available for review offers any 

explanation or guidance as to the reason for this choice of 

 

happening; an event, esp. one that is unusual, important, or 

violent," Black's Law Dictionary 879 (10th ed. 2014).

15 Section 10G was inserted by St. 1998, c. 180, which, 

among other things, enacted into Massachusetts law the Federal 

assault weapons ban; created negligence liability for gun owners 

who improperly stored guns; created a new category of large

capacity weapons, see G. L. c. 140, § 121, and G. L. c. 269, 

§ 10F; created a new licensing structure for all guns, see G. L. 

c. 140 § 123; established a firearms record-keeping trust fund;

prohibited the possession or sale of "sawed-off" shotguns, see 

G. L. c. 269, § 10 (c); required that gun dealers operate out of 

a location separate from their residence; prohibited mail order 

gun sales within the State, G. L. c. 140, § 123; established 

penalties for possession of a weapon while intoxicated, G. L. 

c. 269, § 10H; and required all new gun license applicants to 

pass a gun safety course, G. L. c. 140, § 131P.
17

words, or the meaning that the Legislature ascribed to them.16 

However, three separate considerations lead us to conclude that 

the phrase "arising from separate incidences" is best understood 

to mean that each previous conviction serving as a predicate 

offense under § 10G must result from a separate prosecution, and 

not simply from a separate criminal event. The three 

considerations are the Legislature's departure from the language 

used in the Federal ACCA, the analysis of cases from other 

jurisdictions, and the rule of lenity.

The Federal ACCA provides:

"In the case of a person who violates [18 U.S.C. 

§922(g)] and has three previous convictions . . . for a 

violent felony or a serious drug offense, or both, 

committed on occasions different from one another, such 

person shall be fined under this title and imprisoned not 

less than fifteen years, and, notwithstanding any other 

provision of law, the court shall not suspend the sentence 

of, or grant a probationary sentence to, such person with 

respect to the conviction under [§] 922(g)" (emphasis 

supplied).

18 U.S.C. § 924(e)(1). The language "committed on occasions 

different from one another" was added to the Federal ACCA by 

 

16 The legislative record of the omnibus bill's enactment 

includes two recommendations from the Governor's legislative 

director to his legislative office and a House of 

Representatives "Executive Bill Summary" memorandum, both of 

which provide summaries of the bill by section. With respect to 

§ 10G, the documents state that if a defendant has "three 

previous felony convictions the punishment shall be imprisonment 

in a [S]tate prison for not less than [fifteen] nor more than 

[twenty] years," but do not address the timing of those 

convictions in relation to each other, or the statutory phrase 

"arising from separate incidences."
18

amendment in 1988. See Pub. L. No. 100-690, 102 Stat. 4181, 

§ 7056 (1988). In United States v. Letterlough, 63 F.3d 332, 

335 (4th Cir.), cert. denied, 516 U.S. 955 (1995), the United 

States Court of Appeals for the Fourth Circuit articulated the 

test that it noted was used by the courts of almost every 

Federal Circuit for determining whether the Federal ACCA applies 

to a defendant's prior crimes: "Convictions occur on occasions 

different from one another 'if each of the prior convictions 

arose out of a 'separate and distinct criminal episode"'"

(emphasis in original). Id., quoting United States v. Hudspeth, 

42 F.3d 1015, 1019 (7th Cir. 1994), cert. denied, 515 U.S. 1105 

(1995).

The Legislature enacted the Massachusetts ACCA ten years 

after the Federal ACCA was amended to include the phrase 

"committed on occasions different from one another" and three 

years after the Letterlough decision. The Massachusetts ACCA 

adopts the definitional language of the Federal ACCA.

17 See 

Commonwealth v. Colon, 81 Mass. App. Ct. 8, 12 (2011). See also

Commonwealth v. Eberhart, 461 Mass. 809, 815 (2012). However, 

we disagree with the Commonwealth that the Massachusetts statute 

 

17 A comparison of the definitions of "violent crime" and 

"serious drug offense" in the Massachusetts ACCA with the 

language used by Congress to define "violent felony" and 

"serious drug offense" in the Federal ACCA indicates that the 

two definitions are virtually identical in substance; the 

inference that the Legislature had the Federal ACCA in mind when 

enacting the Massachusetts ACCA appears inescapable.
19

"largely replicates," Colon, supra, the entire structure of its 

Federal counterpart. In fact, § 10G departs from the Federal 

ACCA precisely in relation to the language in contention here, 

namely, the description of what makes a prior violent crime or 

serious drug offense qualify as a predicate offense. That is, 

§ 10G does not incorporate the Federal ACCA language that the 

crimes be "committed on occasions different from one another," 

18 U.S.C. § 924(e)(1), to qualify, but rather requires that the 

predicate crimes be ones "arising from separate incidences." 

Considering the Legislature's obvious awareness of the language 

used in the Federal ACCA (witness the § 10G definitions) and the 

Legislature's presumptive knowledge of the nearly uniform 

judicial interpretation of the phrase "committed on occasions 

different from one another,"

18 its decision to use different 

words to refer to qualifying offenses suggests that the 

Legislature affirmatively intended to enact a sentence 

enhancement scheme that did not march in lock step with the 

Federal ACCA. Differences in language between a State statute 

and a previously enacted, analogous Federal statute "reflect a 

conscious decision by the Legislature to deviate from the 

standard embodied in the Federal statute." Globe Newspaper Co. 

 

18 Cf. Commonwealth v. Callahan, 440 Mass. 436, 441 (2003)

(we "presume that the Legislature is aware of the prior state of 

the law as explicated by the decisions of this court" [citation 

omitted]).
20

v. Boston Retirement Bd., 388 Mass. 427, 433 (1983). See 

Commonwealth v. McGhee, 472 Mass. 405, 413 n.8 (2015). We 

therefore reject the Commonwealth's argument, adopted by the 

dissent, that in § 10G the Legislature simply employed different 

words to convey the exact same meaning as the Federal ACCA.

That the Legislature had a sentencing scheme different from 

the Federal ACCA in mind when it enacted § 10G is made even more 

clear when the structures of the Massachusetts and Federal 

statutes are compared. The Federal ACCA imposes only one level 

of enhancement that comes into play after three qualifying 

offenses; in contrast, § 10G provides for three separate levels 

of enhancement, each with an increasing mandatory minimum 

sentence depending on the number of predicate offenses 

committed, up to a maximum of three -- i.e., a graduated 

approach to enhanced penalties. Again, given its familiarity 

with the Federal statute, the Legislature's rejection of the 

single, "three strikes, you're out" model of 18 U.S.C. § 924(e) 

and the adoption of a graduated approach is significant.

In terms of structure, the Massachusetts ACCA shares less 

in common with the Federal ACCA than it does with a large number 

of armed career criminal sentencing statutes with graduated 

penalty provisions that have been enacted by other States. The 

language of these statutes varies, but a majority of State 

appellate courts have interpreted statutory provisions providing 
21

progressively longer sentences for crimes a defendant commits 

after having been previously convicted of one, two, or three 

qualifying offenses to require that the prior convictions be 

sequential -- i.e., that the first conviction (and imposition of 

sentence) occur before the commission of the second predicate 

crime, and the second conviction and sentence occur before the 

commission of the third crime. See, e.g., Commonwealth v. 

Shiffler, 583 Pa. 478, 480, 492-495 (2005). See also Hall v. 

State, 473 A.2d 352, 356-357 (Del. 1984); State v. Lohrbach, 217 

Kan. 588, 591 (1975); State v. Ellis, 214 Neb. 172, 174-176 

(1983).19 See generally Annot., Chronological or Procedural 

Sequence of Former Convictions as Affecting Enhancement of 

Penalty under Habitual Offender Statutes, 7 A.L.R. 5th 263, 

§§ 2(a), 7(d) (1992 & Supp. 2015).20

 

19 But see, e.g., Watson v. State, 392 So. 2d 1274, 1279 

(Ala. Crim. App. 1980) (no requirement that prior convictions be 

sequential); Knight v. State, 277 Ark. 213, 215-216 (1982)

(same); People v. District Court in & for the County of Larimer, 

643 P.2d 37, 38-39 (Colo. 1982) (same); Stradt v. State, 608 

N.W.2d 28, 29-30 (Iowa 2000) (same).

20 It bears noting that despite the actual language and 

judicial interpretation of the Federal ACCA -- which, as we have 

discussed, focuses on whether the prior convictions involved

distinct criminal episodes -- the United States Sentencing 

Commission has adopted guidelines providing that simultaneous 

convictions, i.e., convictions charged in the same charging 

instrument or for which sentences are entered on the same day, 

should qualify only as a single predicate offense under the 

Federal ACCA, unless the offenses were separated by intervening 

arrests. See Federal Sentencing Guidelines Manual § 4A1.2(a)(2)

(updated Nov. 2015).
22

The rationale underlying the majority view that graduated 

sentence enhancement statutes should be interpreted to require 

sequential prosecutions and convictions of the predicate crimes 

is well expressed by the Pennsylvania Supreme Court in Shiffler, 

583 Pa. at 494:

"'[T]he point of sentence enhancement is to punish 

more severely offenders who have persevered in criminal 

activity despite the theoretically beneficial effects of 

penal discipline.' . . . Particularly salient here is the 

implicit link between enhanced punishment and behavioral 

reform, and the notion that the former should 

correspondingly increase along with a defendant's foregone 

opportunities for the latter. Any other conception would 

ignore the rationale underlying the recidivist philosophy, 

i.e., that the most culpable defendant is 'one, who after 

being reproved, "still hardeneth his neck."' . . . The 

generally recognized purpose of such graduated sentencing 

laws is to punish offenses more severely when the defendant 

has exhibited an unwillingness to reform his miscreant ways 

and to conform his life according to the law" (emphasis in 

original; citations omitted).21

Decisions in other States reflect similar reasoning. See, e.g., 

State v. Ledbetter, 240 Conn. 317, 328-330, 332 (1997) ("We 

agree with the defendant that the legislative purpose of [the 

State's armed career criminal statute] is fulfilled only by 

requiring a sequence of offense, conviction and punishment, thus 

allowing a felon the opportunity to reform prior to being 

labeled a persistent felony offender"); Buckingham v. State, 482 

 

21 Accord Commonwealth v. McClintic, 589 Pa. 465, 483 (2006) 

("Following the recidivist logic, each strike that serves as a 

predicate offense must be followed by sentencing and, by 

necessary implication, an opportunity for reform, before the 

offender commits the next strike").
23

A.2d 327, 330-331 (Del. 1984) (punishment enhanced only for 

individuals who failed to reform after separate encounters with 

criminal justice system); Lohrbach, 217 Kan. at 591 ("The basic 

philosophy underlying recidivist statutes might be expressed in 

this fashion: where the punishment imposed against an offender 

for violating the law has failed to deter him from further 

infractions, a harsher and more severe penalty is justified, the 

idea being, hopefully, that the greater punishment may serve as 

an object lesson and cause him to accomplish his reformation, 

where the lesser penalty had failed in that respect").22

As noted, the available legislative history of the 

Massachusetts ACCA does not reveal the Legislature's specific 

rationale or purpose for eschewing the Federal ACCA's approach 

and establishing a graduated penalty structure tied to the 

number of a defendant's previous convictions of predicate 

offenses. But the Legislature having done so, we are persuaded 

that the most logical interpretation of § 10G (a)-(c) is one 

 

22 See also State v. Ellis, 214 Neb. 172, 175-176 (1983) 

("We believe that the purpose of enacting the habitual criminal 

statute is to serve as a warning to previous offenders that if 

they do not reform their ways they may be imprisoned for a 

considerable period of time, regardless of the penalty for the 

specific crime charged. . . . We believe we should join the 

majority of jurisdictions in their interpretation of the 

habitual criminal statute, and now, therefore, declare that in 

order to warrant the enhancement of the penalty under the

Nebraska habitual criminal statute . . . the prior convictions, 

except the first conviction, must be for offenses committed 

after each preceding conviction, and all such prior convictions 

must precede the commission of the principal offense").
24

that reflects and implements the principle that penal discipline 

can have (or should have) a reforming influence on an offender, 

with enhanced consequences if prior convictions and sentences do 

not have such an effect.23 As a consequence, the most logical 

and appropriate interpretation of § 10G (c) is that its sentence 

enhancement of a mandatory minimum of fifteen years applies only 

when a defendant's previous convictions of three qualifying 

crimes "arising from separate incidences" were the results of 

separate, sequential prosecutions.

Finally, insofar as the meaning of "arising from separate 

incidences" in § 10G (c) is ambiguous,24 the rule of lenity 

supports the interpretation we have adopted here:

 

23 This rationale reflects what the Pennsylvania Supreme 

Court terms a "recidivist philosophy." See Commonwealth v. 

Shiffler, 583 Pa. 478, 494 (2005). The dissent contends that 

there is little to no support for our conclusion that a 

recidivist philosophy underlies the Legislature's enactment of 

§ 10G. Post at . Certainly the scant legislative history 

relating to § 10G contains no evidence that the Legislature used 

that term. But the Legislature's express adoption of a 

graduated penalty structure in § 10G, increasing the mandatory 

minimum sentence as the defendant acquires more "strikes," and 

the decisions of other State courts construing habitual offender 

statutes akin to § 10G in a manner consistent with the 

substantive tenets of a recidivist philosophy work together to 

support our interpretation. See Commonwealth v. Welch, 444 

Mass. 80, 85 (2005) (court may use language and construction of 

related statutes and law of other jurisdictions to determine 

legislative intent).

24 The dissent states that § 10G is not ambiguous and 

asserts that the statute's plain meaning is that "previous 

convictions are convictions occurring prior to the ACCA 

violation for offenses 'arising from separate' criminal 
25

"Under the rule of lenity, 'if we find that the 

statute is ambiguous or are unable to ascertain the intent 

of the Legislature, the defendant is entitled to the 

benefit of any rational doubt.' Commonwealth v. 

Constantino, 443 Mass. 521, 524 (2005). 'This principle 

applies to sentencing as well as substantive provisions.' 

Commonwealth v. Gagnon, 387 Mass. 567, 569 (1982)."

Commonwealth v. Richardson, 469 Mass. 248, 254 (2014). See 

Commonwealth v. Hamilton, 459 Mass. 422, 436-437 (2011). The 

Commonwealth posits that § 10G's requirement that qualifying 

convictions "aris[e] from separate incidences" is satisfied so 

long as the defendant's conduct underlying the convictions 

involved distinct criminal offenses even if all the convictions 

were the result of a single prosecution. This interpretation is 

not compelled by the language and particularly the structure of 

§ 10G.25 Accordingly, in this case -- where the defendant's 

previous drug offense convictions were the result of counts that 

 

incidents." Post at .However, this construction of the 

statute conflates the terms "incident" and "incidence," which, 

as discussed previously, have distinct definitions. See note 

14, supra. Where the Legislature used the term "incidences" in 

§ 10G, we will interpret the statute with that word in mind, and 

will not substitute for it a word that means something else.

25 It is clear that the defendant could not have been 

sentenced as an armed career criminal under § 10G during the 

prosecution of the crimes committed in 2006 because those 

convictions were simultaneous –- i.e., none of the convictions 

could be considered a previous conviction in relation to any of 

the others. Allowing the defendant to be sentenced as a thirdtime repeat offender under § 10G (c) here, despite the fact that 

he could not have, at any previous time, been charged as even a 

first-time repeat offender under § 10G (a), is a result that we 

do not believe the Legislature intended. Cf. Shiffler, 583 Pa. 

at 492.
26

were brought at the same time, combined in a single set of 

charges, prosecuted and handled as a single criminal 

prosecution, and resolved by guilty pleas in a single plea 

proceeding -- the convictions represented a single "incidence" 

for purposes of § 10G. The defendant, therefore, could not be 

prosecuted or sentenced under § 10G (c) (or § 10G [b]), but 

could be prosecuted and sentenced pursuant to § 10G (a).

3. Conclusion. The motion judge properly denied the 

defendant's motions to suppress evidence, and the order denying 

the motions to suppress is affirmed. With respect to the 

defendant's appeal from his convictions as an armed career 

criminal pursuant to G. L. c. 269, § 10G (c), those convictions 

are vacated, and the case is remanded to the Superior Court for 

further proceedings consistent with this opinion.

So ordered.
CORDY, J. (dissenting in part, with whom Spina, J., joins). 

I agree that the defendant's motions to suppress were properly 

denied. I disagree that the Massachusetts armed career criminal 

act, G. L. c. 269, § 10G (ACCA), is ambiguous, and would adopt 

what I perceive to be the plain meaning of its words: previous 

convictions are convictions occurring prior to the ACCA 

violation for offenses "arising from separate" criminal 

incidents. Crimes arising from separate incidents are crimes 

committed on different occasions as contrasted with multiple 

crimes arising out of a single occasion or criminal episode.

The issue is purely one of legislative intent at the time 

of enactment, and, absent any evidence to the contrary, I would 

not read into the statute a "recidivist philosophy," rather than 

an intent to ensure public safety by significantly increasing 

the penalties for persons who commit crimes with firearms after 

having been convicted of multiple serious felonies.

In my view, the Massachusetts statute should be interpreted 

as the Federal ACCA statute has been by virtually every Federal 

Circuit and District Court to undertake the task.1 18 U.S.C. 

§ 924(e) (2006) (offenses "committed on occasions different from 

one another"). So long as the prior offenses of which the 

 

1 See, e.g., United States v. Elliott, 703 F.3d 378, 383 

(7th Cir. 2012), cert. denied, 133 S. Ct. 2359 (2013), and 

United States v. Letterlough, 63 F.3d 332, 335 (4th Cir.), cert. 

denied, 516 U.S. 955 (1995), and the numerous cases cited 

therein.
2

defendant has been convicted arise out of different criminal 

episodes (whether termed different occasions, occurrences, 

incidents, or incidences), they should qualify as separate 

previous convictions for purposes of the Massachusetts ACCA 

statute.

The court's interpretation would essentially incorporate 

all crimes, no matter how separate in time, victim, or nature, 

into a single conviction (for ACCA purposes) if they were 

eventually resolved by guilty plea or trial in the same 

prosecution. For example, a person who commits a string of 

armed robberies in Suffolk County over a period of months and 

who is eventually apprehended, linked to, charged with, and 

convicted of all of the robberies, in a combined prosecution, 

would have only "one" prior felony conviction for purposes of 

the Massachusetts ACCA statute -- no matter how many robberies 

he is convicted of committing.

Further, the court suggests that prior convictions must be 

sequential. In other words, the first conviction must occur 

before the second predicate crime and its prosecution and 

conviction, and the second conviction must occur before the 

commission and prosecution of the third crime, and so on --

apparently, so that the recidivist felon has multiple 

opportunities to correct his criminal behavior before facing far 

greater punishment when he once again commits a serious felony, 
3

this time with a firearm. Hence, by way of example, if the 

armed robber is prosecuted in Suffolk County, and, subsequent to 

his conviction, it is determined that before his conviction he 

had committed a series of armed robberies in Hampden County and 

is, accordingly, now prosecuted and convicted of those armed 

robberies, he would still only have one prior conviction under 

the Massachusetts ACCA statute when and if he commits his next 

armed felony. This could not have been what the Legislature 

intended.2

The fact that some State courts have interpreted their own 

armed career criminal statutes (variously worded) differently 

(and as this court now would), based on their view of what their 

Legislatures intended to punish, is not terribly relevant or 

revealing.3 Other State courts have concluded the opposite.4 

 

2 The court's interpretation would also result in the 

following: An individual is arrested for a serious drug offense 

and is released on personal recognizance. He is then arrested 

for another serious drug offense and is released on bail. He is 

finally arrested for an armed robbery and is held without bail. 

All three separate crimes (for which he has been separately 

arrested and charged) are eventually resolved by guilty pleas 

and sentencing in a single plea and sentencing proceeding. 

Result -- one prior conviction only.

3 For example, the court cites a Nebraska case, State v.

Ellis, 214 Neb. 172, 175 (1983), in support of its proposition 

that habitual offender statutes should be interpreted in a 

manner that allows felons the opportunity to "reform their 

ways." The Nebraska Supreme Court was, of course, interpreting 

the meaning and legislative intent behind its own statute, which 

provided that a habitual criminal is one who has previously 

"been twice convicted of crime, sentenced and committed to 
4

There is no consensus as to how such statutes, no matter how 

differently worded or intended, must be interpreted.

I would not infuse our analysis with hindsight doubts about 

whether the statute has served as an effective deterrent, or 

whether it might seemingly prove unduly harsh in some 

circumstances. That is the Legislature's responsibility, not 

ours. And I would not use the modest facts in this case, in 

which the defendant's prior convictions were for five drug 

sales, each occurring on a different day during a three-week 

period, as an excuse to broadly transplant a new policy that has 

no traceable origin in legislative history, onto a statute 

plainly intended to protect the public from felons with multiple 

felony convictions who use firearms in committing new crimes.

 

prison." Id. at 172-173. See Neb. Rev. Stat. § 29-2221. The 

court, in a four-to-three decision, concluded that where the 

defendant was convicted of two crimes (robbery and the use of a 

firearm in the course of the robbery), occurring on the same 

day, and for which he was sentenced on the same day, he had only 

one prior conviction and sentence under its statute. Ellis, 

supra at 172-173, 175-176. The court went on to more broadly 

endorse the "recidivist philosophy" behind its habitual offender 

statute, see id. at 175, over a vigorous dissent noting that the 

court had "chosen to substitute doubtful sociological 

assumptions (without legislative history to show that the 

Legislature shared its view) for the logical construction of 

[the] statute." Id. at 177 (White, J., dissenting).

4 See, e.g., Watson v. State, 392 So. 2d 1274, 1279 (Ala. 

Crim. App. 1980); Linn v. State, 658 P.2d 150, 152 (Alaska Ct. 

App. 1983); Knight v. State, 277 Ark. 213, 215-216 

(1982); Stradt v. State, 608 N.W.2d 28, 29-30 (Iowa 2000); 

Rushing v. State, 461 So. 2d 710, 713 (Miss. 1984).