In Commonwealth v. Widener, the Appeals Court vacated the sentence imposed on the defendant pursuant to the armed career criminal act (ACCA), G.L. c.269, §10G(c), and remanded the case for resentencing.
The background was as follows. In connection with an investigation into a series of burglaries, the police searched a vehicle that the defendant had been driving. The search resulted in the seizure of a firearm. Following a jury trial, the defendant was convicted of unlawful possession of a firearm, unlawful possession of ammunition, and related offenses. At a subsequent, jury-waived trial, the judge considered the additional allegations in the defendant’s indictments “that [he] previously had been convicted of three violent crimes or serious drug offenses subjecting him to enhanced sentencing pursuant to the [ACCA].” At the conclusion of the second trial, the “judge found the defendant guilty of the subsequent offender allegations related to [two of] his convictions…. Consequently, pursuant to the ACCA, [the defendant] was sentenced to a consolidated mandatory minimum term of imprisonment of not less than fifteen years and not more than fifteen years and one day. On appeal, the defendant claim[ed] … [that] the evidence was insufficient to prove that he had three prior qualifying convictions under the ACCA.”
In its decision, the Appeals Court quoted from c.269, §10G(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, … shall be punished by imprisonment in the state prison for not less than 15 years nor more than 20 years’ (emphasis supplied).” In reference to the statutory requirement of “separate incidences,” the Court described as follows the chronology of the four prior convictions which formed the basis for the sentencing enhancement charges at the defendant’s jury-waived trial: “assault and battery committed on July 19, 2001 (guilty plea on December 6, 2001); assault and battery by means of a dangerous weapon (ABDW) committed on March 18, 2004 (guilty plea on February 9, 2005); possession with intent to distribute a class B controlled substance committed on January 8, 2008 (guilty plea on October 20, 2008); and assault by means of a dangerous weapon committed on January 11, 2008 (guilty plea on October 20, 2008).” The Court noted that “[i]n a case decided after the sentence here was imposed, the [SJC] determined that sentencing enhancement under the ACCA ‘applies only when a defendant’s previous convictions of three qualifying crimes “arising from separate incidences” were the results of separate, sequential prosecutions.’ Commonwealth v. Resende, 474 Mass. 455, 469 (2016). Continue reading →