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SJC-11712

COMMONWEALTH vs. DAMIEN DIDAS.

Middlesex. December 4, 2014. - March 13, 2015.

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

Hines, JJ.

Controlled Substances. Practice, Criminal, Sentence. Statute, 

Construction, Retroactive application, Amendment.

Indictment found and returned in the Superior Court 

Department on October 20, 2011.

A pretrial motion to apply to the defendant's case 

amendments made to G. L. c. 94C was heard by Garry V. Inge, J.

The Supreme Judicial Court granted an application for 

direct appellate review.

Bethany Stevens, Assistant District Attorney, for the 

Commonwealth.

Arnold A. Blank, Jr., Committee for Public Counsel 

Services, for the defendant.

Barbara J. Dougan, for Families Against Mandatory Minimums, 

amicus curiae, submitted a brief.

BOTSFORD, J. In this case we return to St. 2012, c. 192, 

"An Act relative to sentencing and improving law enforcement 

tools" (Crime Bill). More specifically, we revisit the question 
2

whether certain provisions of the Crime Bill apply to drug 

crimes with which the defendant was charged before the statute's 

effective date, but for which the defendant was not convicted 

until after the effective date. See Commonwealth v. Galvin, 466 

Mass. 286 (2013). See also Commonwealth v. Bradley, 466 Mass. 

551 (2013).

The Crime Bill had an emergency preamble and was effective 

on passage, which occurred on August 2, 2012. Among other 

things, it made a number of changes to provisions of the 

Commonwealth's controlled substances law, G. L. c. 94C.1 The 

Crime Bill also included a section specifying that certain 

provisions of the legislation were to apply retroactively to 

individuals who previously had been convicted of certain drug 

crimes with mandatory minimum sentences and were still serving 

those sentences. See St. 2012, c. 192, § 48 (§ 48). In Galvin, 

466 Mass. at 286-287, 290-291, based on our review of the Crime 

Bill's language and purpose, we interpreted § 48's retroactivity 

provisions to mean that certain of its mandatory minimum

sentence reductions should be applied retroactively to a 

defendant who had been charged with committing a drug offense 

 

1 These changes to G. L. c. 94C include increases to the 

weights required to establish certain drug offenses; reductions

to the mandatory minimum sentences associated with certain drug 

crimes; and a reduction in the radius of school zones, which 

influences whether those convicted of certain drug violations in 

specified areas must be subject to mandatory sentence 

enhancements. See, e.g., St. 2012, c. 192, §§ 21, 25, 30.
3

before the Crime Bill's effective date, but who was not tried, 

convicted, or sentenced until after that date. Thereafter, in 

Bradley, 466 Mass. at 561, we held that the school zone radius 

reduction included in § 30 of the Crime Bill should be applied 

retroactively to an individual who committed a drug offense 

prior to the Crime Bill's effective date, where the adjudication 

of the case did not occur until later.

The defendant here has been indicted on a charge of

trafficking in cocaine in violation of G. L. c. 94C, § 32E (b) 

(2), the second tier of this trafficking crime.2 The indictment 

was pending on August 2, 2012, the Crime Bill's effective date, 

and remains pending. The Crime Bill amends § 32E (b) (2), along 

with § 32E (b) (1), in two ways: by striking out the previous 

versions of these two clauses and replacing them with new 

clauses that reconfigure or redefine the trafficking weights 

defining each, and by reducing the mandatory minimum sentence 

applicable to each. See St. 2012, c. 192, § 21. A judge of the 

Superior Court has agreed with the defendant that, following 

this court's decisions in Galvin and Bradley, both the 

 

2 General Laws c. 94C, § 32E (b), prohibits trafficking in 

"a controlled substance defined in clause (4) of paragraph (a) 

. . . of Class B of [§ 31]" (emphasis added). Cocaine is one of 

the controlled substances included in class B. See G. L. 

c. 94C, § 31. For ease of reference, we refer to § 32E (b) in 

this opinion as prohibiting trafficking in cocaine. Section 32E 

(b) defines four tiers of trafficking in cocaine, differentiated 

by the weight of the cocaine in question, and prescribes an 

increased sentence for each successive tier.
4

amendments to § 32E (b) (2) effected by § 21 of the Crime Bill 

apply to this defendant. We conclude that, in accordance with 

Galvin, 466 Mass. at 290-291, § 21's reduction of the mandatory 

minimum sentence required for a violation of § 32E (b) (2) 

applies retroactively to the defendant, but that § 21's 

redefinition of the minimum and maximum trafficking weights does 

not.3

Background.

4 On May 3, 2011, Somerville police officers 

observed the defendant engaging in what they believed to be 

street level drug transactions. The police later searched the 

defendant and discovered him to be in possession of eight bags 

of cocaine with a total weight of 28.14 grams. On October 20, 

2011, the defendant was indicted on a charge of violating G. L. 

c. 94C, § 32E (b) (2), which at the time prohibited trafficking 

in cocaine with a net weight of "[t]wenty-eight grams or more, 

but less than one hundred grams," and imposed a mandatory 

minimum prison sentence of five years and a maximum sentence of 

not more than twenty years. See G. L. c. 94C, § 32E (b) (2), as 

amended through St. 2010, c. 256, § 70. See also G. L. c. 94C, 

§ 31.

 

3 We acknowledge the amicus brief submitted by Families 

Against Mandatory Minimums in support of the defendant.

4 Because the defendant's case remains pending and untried, 

we summarize allegations taken from the Commonwealth's statement 

of the case that was filed in the Superior Court. The 

summarized allegations are provided only to provide context; 

they have not been proved.
5

On August 2, 2012, the Crime Bill was enacted and went into 

effect. As noted, § 21 amended § 32E (b) (1), the first tier 

of trafficking in cocaine, by increasing the net weights 

defining the tier to the range of from eighteen grams to thirtysix grams -- the first tier previously had been defined as from 

fourteen grams to twenty-eight grams -- and to establish a 

mandatory minimum sentence of two years, rather than the 

previous mandatory minimum of three years. See G. L. c. 94C, 

§ 32E (b) (1), as amended by St. 2012, c. 192, § 21. Section 

32E (b) (2), the second trafficking tier, was amended to 

redefine the weight range for the tier as from thirty-six grams 

to one hundred grams -- previously, the range had been from 

twenty-eight to one hundred grams -- and to set the mandatory 

minimum sentence as three and one-half years instead of the 

previous five years.5 See G. L. c. 94C, § 32E (b) (2), as 

amended by St. 2012, c. 192, § 21. Thus, if the defendant were 

to be charged and convicted under the version of § 32E (b) that 

incorporates the Crime Bill amendments, the defendant could only 

be found guilty under § 32E (b) (1), the lowest tier of 

trafficking in cocaine, rather than § 32E (b) (2), the second 

tier.

 

5 The Crime Bill also amended the third and fourth tiers of 

trafficking in cocaine, G. L. c. 94C § 32E (b) (3) and (4), by 

lowering the mandatory minimum sentence for each tier, but did 

not make any change to the trafficking weights in either tier. 

See St. 2012, c. 192, §§ 22, 23.
6

Prior to trial, on September 28, 2012, the defendant filed 

a motion to apply all the Crime Bill's amendments to § 32E (b) 

(1) and (2) to his case. He later filed a supplemental motion 

renewing his request in light of this court's decisions in 

Galvin and Bradley. On February 6, 2014, the judge allowed the 

defendant's motion in a written memorandum of decision. On 

March 3, the Commonwealth filed a notice of appeal from the 

judge's order pursuant to Mass. R. Crim. P. 15 (a) (1), as 

appearing in 422 Mass. 1501 (1996), arguing that the order in 

substance constituted an allowance of a motion to dismiss so 

much of the indictment as charged trafficking in cocaine in 

violation of § 32E (b) (2), leaving in place the lesser-included 

offense of trafficking in cocaine in violation of § 32E (b) (1).6

We granted the Commonwealth's application for direct appellate 

review.

Discussion. "As a general rule of statutory construction, 

a newly enacted statute is presumptively prospective, and '[t]he 

repeal of a statute shall not affect any punishment, penalty or 

forfeiture incurred before the repeal takes effect.'" Galvin, 

466 Mass. at 290, quoting G. L. c. 4, § 6, Second. See Bradley, 

466 Mass. at 553; Commonwealth v. Dotson, 462 Mass. 96, 99-100

 

6 The defendant does not contest the Commonwealth's 

characterization of the judge's order as a partial motion to 

dismiss, or argue that the Commonwealth was not entitled to 

appeal the order pursuant to Mass. R. Crim. P. 15 (a) (1). We 

accept the Commonwealth's characterization, and we do not 

discuss the issue further in this opinion.
7

(2012). "The consequence of this presumption is to 'preserve, 

even after legislative change of a statute, the liability of an 

offender to punishment for an earlier act or omission made 

criminal by [a] statute repealed in whole or in part.'" 

Bradley, supra, quoting Dotson, supra at 99-100. The 

presumption of prospective application governs "unless [its] 

observance would involve a construction inconsistent with the 

manifest intent of the law-making body or repugnant to the 

context of the same statute." Galvin, supra at 290, quoting 

G. L. c. 4, § 6. See Bradley, supra.

The defendant in Galvin had been charged with committing a 

drug crime -- distribution of cocaine as a second or subsequent 

offense in violation of G. L. c. 94C, § 32A (d) -- before August 

2, 2012, the effective date of the Crime Bill, but his case was 

not adjudicated until after that date. Galvin, 466 Mass. at 

287. Section 14 of the Crime Bill amended § 32A (d) to reduce 

the section's mandatory minimum sentence of five years to three 

and one-half years and, in sentencing the defendant, the judge 

imposed the amended three and one-half year mandatory minimum. 

Id. at 288. The question raised on appeal was whether, given 

the date of his offense and indictment, the defendant was 

entitled to the benefit of this reduced mandatory minimum 

sentence effected by § 14 of the Crime Bill. Id. at 286-287.
8

In answering this question, we observed that "one of [the 

Crime Bill's] primary purposes was to significantly reduce the 

sentences to be served by individuals under the mandatory 

minimum provisions of a wide range of drug-related offenses." 

See Galvin, 466 Mass. at 291. Given this statutory goal of 

reducing sentences served for certain drug offenses (including 

violations of § 32A [d]) going forward, and considering the fact 

that in the retroactivity provisions of § 48 of the Crime Bill 

the Legislature had expressly provided for application of the 

legislation's reduced mandatory minimums to individuals 

previously convicted of these crimes and currently serving 

prison sentences, we concluded that to deny the defendant in 

that case the benefit of the Crime Bill's reduced mandatory 

minimum sentence for violating § 32A (d) would be "anomalous, if 

not absurd," id. at 291, and accordingly "inconsistent with the 

manifest intent of the [Legislature] as well as repugnant to the 

context of the [Crime Bill]." Id., quoting G. L. c. 4, § 6.

In contrast to the change to § 32A (d) at issue in Galvin, 

the defendant here seeks to benefit from changes to § 32E (b) 

(2) that do not merely reduce the applicable mandatory minimum 

sentence but also effectively redefine the elements of the 

underlying crime for which he has been indicted. This change is 

unquestionably substantive in nature: by increasing the minimum 

drug weight required for a violation of § 32E (b) (2), the 
9

Legislature has altered what the Commonwealth must prove in 

order to convict the defendant under this statute. See Dotson, 

462 Mass. at 100 (legislative amendment to G. L. c. 272, § 53, 

differentiating between first and second offenses for disorderly 

conduct has substantive impact on how Commonwealth must 

prosecute offenses). The result of applying the increased drug 

weights to the defendant's case would be that the defendant can 

be charged only with violating § 32E (b) (1), which, as the 

Commonwealth correctly contends, is essentially a lesser 

included offense of § 32E (b) (2).

The defendant does not contest this characterization of the 

redefined weights as a change to the elements of the crime of 

which he is accused, or the observation that this is a more 

substantive change than the one applied retroactively in Galvin. 

Rather, he argues that regardless of the nature of the change, 

retroactive application of the reconfigured drug weights to him 

is consistent with the manifest intent of the Crime Bill and of 

§ 48 in particular. Section 48 provides:

"Notwithstanding any general or special law to the 

contrary, any person incarcerated on the effective date of 

this act for an offense which, at the time such person was 

sentenced on such offense, requires serving a minimum term 

of incarceration before such person is eligible for 

probation, parole, work release or release shall be 

eligible for probation, parole, work release and deductions 

in sentence for good conduct under [§§] 12 to 29, 

inclusive" (emphasis added).
10

St. 2012, c. 192, § 48. The defendant argues that because the 

reconfigured trafficking weights are included in § 21 of the 

Crime Bill and § 21 itself is included within §§ 12 to 29, the 

reconfigured trafficking weights therefore come within the 

portion of the Crime Bill to which the retroactivity provision 

in § 48 specifically applies. He concludes from this that the 

retroactivity provision in § 48 demonstrates a clear legislative 

intent to apply all the provisions of § 21 retroactively to him, 

not merely those provisions that affect his eligibility for a 

reduced mandatory minimum sentence under § 32E (b) (2).

The difficulty with the defendant's argument is that it 

substantially ignores key language of § 48 the Crime Bill. By 

its express terms, § 48 focuses on offenders with mandatory 

minimum terms of incarceration, and specifically on these 

offenders' eligibility "for probation, parole, work release and 

deductions in sentence for good conduct." The reductions in the 

mandatory minimum sentences included within §§ 12 to 29 of the 

Crime Bill directly affect a drug offender's eligibility for 

virtually all of these programs, because the programs otherwise 

would not be available until the mandatory minimum portion of a 

sentence has been served. See G. L. c. 94C, § 32H. For the 

same reasons that we discussed in Galvin, see 466 Mass. at 291, 

it would be "inconsistent with the manifest intent" and 

"repugnant to the context" of the Crime Bill not to apply the 
11

new mandatory minimum sentence for a violation of § 32E (b) (2) 

expressly set out in § 21 of the Crime Bill to the defendant in 

this case. If we did not apply this new mandatory minimum

sentence retroactively, a person convicted and sentenced before 

the enactment of the Crime Bill would be eligible to be released 

on parole upon completion of the new, shorter mandatory minimum

term, but a person who committed the crime on the same day but 

was convicted and sentenced after its enactment would not be 

eligible for release until completion of the old, longer 

mandatory minimum.

But the provisions of § 21 that amend § 32E (b) (1) and (2) 

by reconfiguring the trafficking weights are a different matter. 

These provisions in and of themselves have no direct 

relationship to eligibility for probation, parole, work release, 

or good conduct sentence deductions. Rather, the net weights 

determine only which tier of trafficking will apply; it is the 

separate sentencing provisions within each trafficking tier that 

then define the mandatory minimum sentence for that tier.7

 

7 The defendant's case illustrates the point. If the 

reconfigured trafficking weights in § 21 of the Crime Bill were 

applied retroactively to him, the direct effect would be that 

the crime with which he is charged would change from trafficking 

in violation of § 32E (b) (2) to trafficking in violation of 

§ 32E (b) (1). As a consequence of that change -- not directly 

-- the mandatory minimum sentence upon conviction would then 

shift from three and one-half years (§ 32E [b] [2]) to two years 

(§ 32E [b] [1]).
12

As Galvin, 466 Mass. at 290-291, suggests, the starting 

point for any consideration of applying the Crime Bill 

retroactively to the defendant is § 48. Section 48 specifically 

refers to mandatory minimum sentences (required "minimum term of 

incarceration"), and provides that the Crime Bill's amended 

minimums are to apply to those currently incarcerated. It makes 

no mention of the redefined trafficking weights that the Crime 

Bill enacts, and at best, it would be administratively 

challenging to apply those redefined weights to currently 

incarcerated individuals.8 More importantly, it would appear to 

be beyond the authority of the Department of Correction 

(department) to treat a person convicted and sentenced for 

violation of § 32E (b) (2) as effectively convicted and 

sentenced for violation of § 32E (b) (1) -- the result the 

defendant seeks in this case.9

 

8 Not everyone previously convicted of trafficking in 

cocaine in violation of § 32E (b)(2) who was still serving a 

sentence when the Crime Bill went into effect would be affected 

by the bill's reconfiguration of the trafficking weight ranges 

of § 32E (b)(1) and (2). Rather, whether such an inmate would 

be affected would depend on the actual weight of the cocaine 

involved in his or her underlying criminal case, and the 

Department of Correction (department) would have to investigate 

and determine the actual weight of the drugs at issue in each 

such person's case. Such an investigation into the underlying 

facts of each case is certainly outside the scope of the 

department's responsibilities, if not of its authority, and is, 

in many cases, difficult if not impossible to accomplish as a 

practical matter.

9 We note that although the department began as early as 

2012 to apply the Crime Bill's reduced mandatory minimum 
13

If the redefined trafficking weights in § 21 of the Crime 

Bill do not apply to those who are the direct and explicit 

beneficiaries of the retroactivity provisions of § 48 --

individuals convicted of drug crimes with mandatory minimum 

penalties who were previously sentenced and remained 

incarcerated when the Crime Bill went into effect -- there is no 

reason or justification for them to apply retroactively to the 

defendant. In light of this, and of the indirect manner in 

which the trafficking weight amendments affect mandatory minimum

sentences, we conclude that it is not inconsistent with § 48 or 

with the manifest intent of the Crime Bill generally to confine 

the retroactive application of the Bill's provisions solely to 

the revised and reduced mandatory minimum sentences contained 

within §§ 12 to 29.10

 

sentences to those convicted before the Crime Bill's effective 

date who are still incarcerated, the department did not 

similarly apply the Crime Bill's amendments to the trafficking 

weights for cocaine (see St. 2012, c. 192, § 21) and heroin (see 

St. 2012, c. 192, § 25) to this group. See Memorandum from 

Charles W. Anderson, Jr., Counsel to Department of Correction, 

to Hon. Robert A. Mulligan, Chief Justice of Massachusetts Trial 

Court, et al., at 2-3 (Sept. 18, 2012) (regarding department's 

implementation of St. 2012, c. 192).

10 We disagree with the defendant's contention that the 

reference in § 48 to §§ 12-29 "inclusive" of the Crime Bill as a 

unit reflects a manifest intent by the Legislature to give every 

provision of each of these sections retroactive effect, rather 

than an intent to ensure only that the changes in mandatory 

minimum sentences would be retroactive. As discussed, this more 

limited scope of retroactivity is consistent with the actual 

language of § 48.
14

In arguing against this result, the defendant asserts that 

applying the amended drug trafficking weights in § 21 to him 

furthers a primary purpose of the Crime Bill, namely, to 

"significantly reduce the sentences to be served by individuals 

under the mandatory minimum provisions of a wide range of drugrelated offenses." Galvin, 466 Mass. at 291. As previously

described, see note 7, supra, retroactive application to the 

defendant of the Crime Bill's reconfigured drug weights for the 

trafficking offenses defined in G. L. c. 94C, § 32E (b) (1) and 

(2), would result in his receiving, if convicted, two reductions 

in the mandatory minimum term he must serve when compared to the 

sentence he would have received under the version of § 32E (b) 

(2) in effect at the time he was indicted, thereby furthering 

the Crime Bill's goal of reducing the mandatory minimum 

sentences served for drug-related offenses. This, he argues, is 

additional evidence that retroactive application of the amended 

drug weights to him is consistent with the manifest intent 

behind the new statute.

However, in light of the presumption of prospectivity in 

G. L. c. 4, § 6, Second, the mere fact that retroactive 

application of the amended trafficking weights to the defendant 

might appear to advance an important purpose of the Crime Bill, 

by itself, does not necessarily mean that failing to do so is 

inconsistent with the statute's purpose. If it were otherwise, 
15

every amendment or partial repeal and amendment of a criminal 

statute would need to be given retroactive effect, in direct 

conflict with the presumption of prospectivity.

In sum, although retroactive application of the increased 

drug weights to cases pending at the time that the Crime Bill 

became effective might further advance an important goal of the 

Crime Bill, in contrast to the Galvin and Bradley cases, here, 

we conclude that prospective application is not contrary to its 

"manifest intent" or "repugnant" to the statute's context.11 

G. L. c. 4, § 6.

Finally, the defendant invokes the "rule of lenity," 

arguing that in interpreting the Crime Bill, any ambiguity as to 

whether the increased drug weights should apply retroactively to 

him must be resolved in his favor. See Commonwealth v. 

Williamson, 462 Mass. 676, 679 (2012), quoting Commonwealth v. 

Roucoulet, 413 Mass. 647, 652 (1992) ("when a criminal statute 

can 'plausibly be found to be ambiguous,' the rule of lenity 

 

11 Although in Commonwealth v. Bradley, 466 Mass. 551 

(2013), and Watts v. Commonwealth, 468 Mass. 49 (2014), we 

treated these two exceptions to the rule of prospective 

application as distinct analyses, at other times, we have 

determined that a single line of inquiry is sufficient to 

address both exceptions. Compare, e.g., Bradley, supra at 553; 

Watts, supra at 55, 60, with Commonwealth v. Galvin, 466 Mass. 

286, 290-291 (2113); Commonwealth v. Dotson, 462 Mass. 96, 100-

101 (2012). Addressing both exceptions together is appropriate 

here, where the defendant advances essentially the same argument 

under the repugnancy exception as he does under the manifest 

intent exception, namely, that applying the amended drug weights 

retroactively results in lower mandatory minimum sentences for 

more individuals, in keeping with the Crime Bill's purpose.
16

applies, and we 'give the defendant the benefit of the 

ambiguity'"). However, the rule of lenity does not come into 

play when the question to be answered is whether a particular 

criminal statute should be applied retroactively to a defendant 

who is charged with committing an offense before that statute 

went into effect. This inquiry is governed instead by G. L. 

c. 4, § 6, Second. Even if this were not the case, "[t]he rule 

of lenity does not require . . . that absent an ambiguity we 

construe a penal statute most favorably to a defendant." 

Commonwealth v. Carrion, 431 Mass. 44, 46 (2000). See Watts v. 

Commonwealth, 468 Mass. 49, 52 n.8 (2014). Here, given the 

presumption that new statutes will be applied prospectively, the 

absence of any explicit indication that the Legislature intended 

the increased drug weights to apply retroactively, and our 

observation that applying the increased drug weights 

retroactively would appear to create substantial practical 

difficulties, we conclude that no ambiguity exists concerning 

the retroactive application of the redefined drug trafficking 

weights in § 21 of the Crime Bill.

Conclusion. The reduced mandatory minimum sentence under 

G. L. c. 94C, § 32E (b) (2), as amended by St. 2012, c. 192, 

§ 21, will apply to the defendant if he is convicted of that 

offense. The reconfigured drug trafficking weights provided in 

G. L. c. 94C, § 32E (b) (1) and (2), as amended by St. 2012, 
17

c. 192, § 21, are not applicable to the defendant. The order of 

the Superior Court dated February 6, 2014, is vacated, and the 

case is remanded to the Superior Court for further proceedings 

consistent with this opinion.

So ordered.