Commonwealth v. Resende (Lawyers Weekly No. 10-077-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 SJC-11849 COMMONWEALTH vs. ADMILSON RESENDE. Plymouth. December 10, 2015. – June 9, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Firearms. Practice, Criminal, Motion to suppress, Sentence. Indictments found and returned in the Superior Court Department on August 26, 2011. Pretrial motions to suppress evidence were heard by Charles J. Hely, J., and a motion for reconsideration was considered by him; and the cases were heard by Frank M. Gaziano, J. The Supreme Judicial Court granted an application for direct appellate review. Patrick Levin, Committee for Public Counsel Services, for the defendant. Carolyn A. Burbine, Assistant District Attorney, for the Commonwealth. BOTSFORD, J. In a jury-waived trial in June, 2014, a Superior Court judge found the defendant, Admilson Resende, guilty of several firearms offenses, each of which had associated with it an armed career criminal sentence enhancement charge under G. L. c. 269, § 10G (§ 10G), the Massachusetts armed career criminal act (Massachusetts ACCA). After a separate jury-waived trial on the enhancement charges, the judge sentenced the defendant under § 10G (c) to a mandatory minimum State prison term of from fifteen years to fifteen years and one day. In his appeal from these convictions, the defendant presents an unanswered question about the proper interpretation of § 10G, which provides sentence enhancements for designated firearms offenses where a defendant previously has been convicted of one or more “violent crimes” or “serious drug offenses,” or a combination of the two. For reasons we shall explain, we interpret § 10G to mean that where the previous convictions of predicate offenses forming the basis of the sentence enhancement charge were all part of a single prosecution, they properly should be treated as a single predicate conviction. In this case, therefore, the defendant’s previous drug offense convictions, which were part of a single prosecution, should have been considered as one previous conviction that would be punishable under § 10G (a) rather than § 10G (c).[1] 1. Background. a. Prior drug convictions. On August 22, 2006, when the defendant was nineteen years old, he was arrested and charged with five counts of distribution of cocaine and one count of possession of cocaine with intent to distribute, G. L. c. 94C, § 32A (a). The five distribution counts arose from hand-to-hand […]