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Commonwealth v. Rezendes (Lawyers Weekly No. 11-147-15)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-753                                        Appeals Court   COMMONWEALTH  vs.  DOMINIC REZENDES. No. 14-P-753. Plymouth.     May 11, 2015. – September 17, 2015.   Present:  Cypher, Meade, & Massing, JJ.     Firearms.  Assault and Battery by Means of a Dangerous Weapon.  Practice, Criminal, Prior conviction, Sentence.  Delinquent Child.  Words, “Violent crime,” “Deadly weapon.”       Indictments found and returned in the Superior Court Department on February 18, 2011.   The cases were tried before Merita A. Hopkins, J.     James A. Reidy for the defendant. Jessica Heaton, Assistant District Attorney, for the Commonwealth.     CYPHER, J.  This case requires us to consider the meaning of “violent crime” as used in the Massachusetts Armed Career Criminal Act (Massachusetts ACCA or statute), G. L. c. 269, § 10G, inserted by St. 1998, c. 180, § 71.  Specifically, we must interpret the term “deadly weapon,” as used in the definition of violent crime in G. L. c. 140, § 121, as amended by St. 1998, c. 180, § 8.  The defendant, Dominic Rezendes, appeals from a conviction under § 10G(c) of the Massachusetts ACCA, which was based, in part, on a juvenile adjudication for assault and battery by means of a dangerous weapon (a pen). We first conclude that the term “deadly weapon” in this context is distinct from the term “dangerous weapon” as applied in our common law.  We further hold that for the purposes of conviction under G. L. c. 269, § 10G, a deadly weapon is a weapon that is inherently deadly, and therefore conclude that a pen is not a deadly weapon under this statute.  Accordingly, under these circumstances, the defendant’s juvenile adjudication for assault and battery by means of a dangerous weapon could not have formed the basis for a conviction under the Massachusetts ACCA.  We reverse the defendant’s conviction under G. L. c. 269, § 10G(c), and remand for resentencing under G. L. c. 269, § 10G(b). Background.  In July, 2013, a jury convicted the defendant on two indictments charging assault and battery by means of a dangerous weapon and three indictments involving weapons charges:  unlawful possession of a firearm, in violation of G. L. c. 269, § 10(a); unlawful discharge of a firearm within 500 feet of a building, in violation of G. L. c. 269, § 12E; and unlawful possession of a loaded firearm, in violation of G. L. c. 269, § 10(n).[1]  The indictment charging unlawful possession of a firearm carried an additional […]

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Posted by Massachusetts Legal Resources - September 17, 2015 at 5:46 pm

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