Commonwealth v. Ehiabhi (Lawyers Weekly No. 10-164-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12259 COMMONWEALTH vs. MOSES EHIABHI. Suffolk. May 4, 2017. – October 13, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, & Cypher, JJ.[1] Controlled Substances. Assault and Battery on Certain Public Officers and Employees. Constitutional Law, Sentence, Separation of powers, Search and seizure. Practice, Criminal, Sentence, Motion to suppress, Instructions to jury. Search and Seizure, Motor vehicle, Impoundment of vehicle, Inventory. Indictments found and returned in the Superior Court Department on January 13, 2014. A pretrial motion to suppress evidence was heard by Mary K. Ames, J.; the cases were tried before Elizabeth M. Fahey, J., and the correctness of the sentence was reported by her to the Appeals Court. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Zachary Hillman, Assistant District Attorney, for the Commonwealth. Sarah E. Dolven for the defendant. Patrick Levin, Committee for Public Counsel Services, & Chauncy B. Wood, for Committee for Public Counsel Services & another, amici curiae, submitted a brief. CYPHER, J. This case examines a sentencing scheme that punishes the same conduct with different mandatory minimum sentences. See G. L. c. 94C, § 32A (b), (d). Both subsections punish possession with intent to distribute a class B substance, but § 32A (b) carries a mandatory minimum sentence of two years while § 32A (d) carries a mandatory minimum sentence of three and one-half years. In the law’s current form, § 32A (a) punishes first-time distribution of any of forty class B substances, including phencyclidine (PCP), cocaine, and methamphetamine; § 32A (b) punishes subsequent distribution of a class B substance; § 32A (c) punishes first-time distribution of PCP, cocaine, or methamphetamine; and § 32A (d) punishes subsequent distribution of PCP, cocaine, or methamphetamine. G. L. c. 94C, § 32A.[2] The defendant, Moses Ehiabhi, was charged and convicted of possession with intent to distribute cocaine, second offense, under § 32A (c) and (d), but the judge, over the objection of the Commonwealth, sentenced pursuant to § 32A (a) and (b).[3] Pursuant to G. L. c. 231, § 111,[4] and Mass. R. Crim. P. 34, as amended, 442 Mass. 1501 (2004),[5] the trial judge reported the correctness of her sentencing decision to the Appeals Court, and allowed the defendant’s motion to stay the sentence pending his appeal. The Commonwealth appeals from both the […]