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SJC Analyzes How to Determine Whether Assault and Battery Qualifies as a Predicate Offense Under Armed Career Criminal Statute

questions-1151886-300x225In Commonwealth v. Wentworth, the Supreme Judicial Court ruled (1) that under the Massachusetts armed career criminal act (ACCA), G.L. c.269, §10G, “the ‘modified categorical approach’ … is the appropriate analytical framework … when determining whether a predicate offense” of assault and battery “involved ‘force’”; and (2) that “the defendant’s [prior] conviction of assault and battery was a conviction of a violent crime in these circumstances and could serve as a predicate offense under the ACCA.”

The background was as follows. On the basis of an incident during which the police found a loaded handgun in the defendant’s vehicle, he “pleaded guilty to carrying a loaded firearm unlawfully as an armed career criminal with one predicate offense.” “At the plea colloquy, the judge and the Commonwealth made it apparent that the … [defendant’s] prior ACCA conviction [was] a domestic assault and battery from 2005.” Regarding that offense, the prosecutor stated, “‘[W]e have to show violence; that he … struck his girlfriend at the time in the face and shoved her down on the bed.’ To follow up, the judge asked the defendant, … [‘]Are the facts as stated by the prosecutor correct?’ The defendant answered, ‘Yes’” and proceeded to plead guilty to the charges.” Subsequently, he filed a motion to vacate the conviction and for a new trial, which was denied. On appeal, the defendant argued that his predicate offense, the 2005 assault and battery, was not “a violent crime under the ACCA.”

In its decision affirming the denial of the defendant’s motion to vacate the ACCA conviction and for a new trial, the SJC noted that under the “force” clause of the ACCA, the only “clause [that] is in play in the present case,” “a ‘violent crime’ is ‘any crime punishable by imprisonment for a term exceeding one year … that … has as an element the use, attempted use or threatened use of physical force or a deadly weapon against the person of another[.] [Commonwealth v. Beal, 474 Mass. 341,] 349 [2016].” Here, the defendant “claim[ed] that the ‘force clause’ … demands a strictly categorical, elements-focused approach, which” “generally requires a court to look only to … the statutory definition of the prior offense” and “prohibits inquiry into the factual means underlying the prior conviction.”

The SJC noted the dilemma addressed in Commonwealth v. Eberhart, 461 Mass. 809 (2012), “that ‘[t]he categorical approach does not always produce a conclusive determination whether the defendant has been convicted of a “violent crime.”’ [Id.] at 816. In some cases, … the defendant’s predicate conviction is based on a ‘broad statute that encompasses multiple crimes, not all of which are “violent crimes.”….’ Id.” Thus, in this case, the assault and battery statute, under which the defendant was convicted of his predicate offense, is a broad statute that encompasses both forceful striking of another person and slight touching that is merely offensive. Therefore, “the defendant’s certified conviction [of assault and battery] alone did not suffice to show that he had been convicted of a ‘violent crime.’ Id. at 818-819.” In circumstances like this, stated the Court, “we employ a ‘modified categorical approach[,]’ id. [at 816],” to determine whether the predicate assault and battery was violent. “Under this approach, the jury at an ACCA enhancement trial are permitted to consider additional evidence … to determine whether [beyond a reasonable doubt] a predicate conviction is a ‘violent crime’ under the force clause. Id. at 817. “In this case, the defendant had the right to a jury trial for his ACCA enhancement, but pleaded guilty.” “[I]t is apparent [from the plea colloquy] that the assault and battery to which the defendant pleaded guilty … involved ‘violence,’” i.e., he agreed that he had struck his girlfriend. “He therefore waived any claim to [a] lack of sufficient evidence that he committed a ‘violent’ crime.”

The ACCA carries severe potential penalties, including minimum mandatory time.  Given the seriousness of the offense, it is critically important to have an attorney who can and will effectively assess whether the alleged predicate offenses do in fact qualify under the statute.  If you or a loved one is charged under the ACCA, you will need a dedicated and experienced attorney to help make this assessment and mount the appropriate challenges.  Attorney Daniel Cappetta is an extremely skilled and zealous advocate with the experience to make sure that all his clients get the best outcome possible.  Contact him for a free consultation today.

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