Commonwealth v. Luckern (Lawyers Weekly No. 11-036-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 14-P-43 Appeals Court COMMONWEALTH vs. JEFFREY LUCKERN. No. 14-P-43. Suffolk. December 8, 2014. – April 8, 2015. Present: Rubin, Milkey, & Carhart, JJ. Habitual Offender. Practice, Criminal, Sentence. Indictments found and returned in the Superior Court Department on May 7, 2013. A motion to dismiss was heard by Carol S. Ball, J. Zachary Hillman, Assistant District Attorney (Gretchen P. Sherwood, Assistant District Attorney, with him) for the Commonwealth. David M. Skeels, Committee for Public Counsel Services, for the defendant. RUBIN, J. This case concerns the meaning of a provision of the habitual offender statute, G. L. c. 279, § 25(a), amended by St. 2012, c. 192, § 47. The question before us is whether a defendant given a sentence of three years or more in State prison that is suspended so that the defendant must serve less than three years has been “sentenced to state prison or state correctional facility or a federal corrections facility for a term not less than [three] years.” The prior version of the habitual offender statute applied to those who had “been twice convicted of crime and sentenced and committed to prison in this or another state . . . for terms of not less than three years each.” G. L. c. 279, § 25, amended by St. 1904, c. 303. The statute was amended in 2012 so that it now applies to anyone convicted of a felony who “has been previously twice convicted and sentenced to state prison or state correctional facility or a federal corrections facility for a term not less than [three] years by the commonwealth, another state or the United States.” G. L. c. 279, § 25(a). Although the wording has changed slightly, we agree with the parties that there is no material difference between the language in the new version of the statute, which refers to being sentenced for a term of not less than three years, and that in the old statute. Consequently, although the statute has been amended to remove the reference to “commitment,” the language of the current version with respect to being sentenced must be read in pari materia with that in the prior version. The question before us is whether the defendant has two prior convictions that may serve as predicate convictions for application of the habitual offender statute. The defendant pleaded guilty to larceny over $ […]