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Appeals Court Clarifies Sentencing Under ACCA

balance-1172800-1-300x204In 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). 

In reaching this conclusion, the [SJC] reasoned that sequential prosecutions occur when ‘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.’ Id. at 466-467. Here,” stated the Appeals Court, “although the 2008 convictions of (1) assault by means of a dangerous weapon, and (2) possession with intent to distribute a class B controlled substance were for conduct alleged to have occurred on different dates and charged in separate complaints, they resulted from guilty pleas and sentences imposed at a single hearing” on October 20, 2008. “Accordingly, under the reasoning of Resende they were not sequential prosecutions and, therefore, did not arise from separate incidences. We therefore conclude, as required by Resende, that these two prior convictions must be considered as one for ACCA purposes.” The Court then described the dilemma created by the consolidation of the two October 20, 2008, convictions: “Following the jury-waived trial on the ACCA allegations, the trial judge found the defendant guilty of the subsequent offender portion of the indictments without reference to the prior convictions upon which she relied. We can reasonably infer from her findings of guilty and the resulting mandatory minimum sentence of fifteen years that she found at least three prior qualifying convictions, but we cannot discern from the record which three she found to have been proved beyond a reasonable doubt. Based on our conclusion that the two 2008 convictions cannot be considered separate, sequential convictions under the ACCA, we remand the case for resentencing so that the trial judge can determine whether, in light of our ruling, the defendant has two or three prior qualifying convictions under the ACCA.” The Court noted that “if the defendant has two (rather than three) prior convictions of violent crimes or serious drug offenses arising from separate incidences,” he “qualifies for a different enhanced sentence under the ACCA,” pursuant to G.L. c.269, §10G(b).

Charges involving subsequent offenses typically carry mandatory minimum time and are therefore particularly serious. The determination of whether a prior offense qualifies as a predicate for such subsequent offenses is ripe for challenges, both at the charging and sentencing stage of the proceedings. If you or a loved on is charged with such an offense, it is of the utmost importance that you have an attorney who is well versed in the law and who will fight to make sure that you are not over charged, or over sentenced. Attorney Daniel Cappetta is an experienced attorney who works hard to make sure that all of his clients’ rights are protected. Contact him for a free consultation.