Criminal – Enhanced sentence – Prior juvenile adjudications

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Where a Superior Court judge has reported a question asking whether, in light of Miller v. Alabama, 567 U.S. 460 (2012), juvenile delinquency adjudications for violent offenses may serve as predicate offenses for adults indicted under the armed career criminal act (G.L.c. 269, section10G), the question should be answered in the affirmative.

“… If convicted, [the defendant] would not be punished for his juvenile activity. He would be punished for violating the law as an adult while having two applicable juvenile adjudications on his record. Without consideration of a juvenile offender’s ‘diminished culpability,’ Miller, 567 U.S. at 471, the analysis of the proportionality of the punishment to the offense is straightforward. The Commonwealth argues that section10G’s sentencing scheme considers ‘the fact that [the defendant] has not been rehabilitated.’ The Commonwealth further notes, ‘[m]ore severe sentences are justified by recidivism.’ Indeed, we have said as much when interpreting the ACCA. … ‘Recidivism has long been recognized as a legitimate basis for increased punishment.’ … Specifically, the Commonwealth contends that the purpose of the ACCA’s enhanced sentencing scheme is to achieve the penological goals of deterrence and incapacitation. Each is a justifiable objective of incarceration under the Eighth Amendment and art. 26. ‘[A] second or subsequent offense is often regarded as more serious because it portends greater future danger and therefore warrants an increased sentence for purposes of deterrence and incapacitation.’ … The potential punishment is therefore constitutionally proportionate to the offender and the offense.

“We therefore answer ‘yes’ to the reported question, holding that qualifying juvenile adjudications may be used as a predicate offense for enhanced penalties under G.L.c. 269, section10G.”

Concurring opinion

Gants, C.J., with whom Lenk and Budd, JJ., join. “I agree with the court that it is not unconstitutional to use the adult defendant’s two juvenile adjudications for separate ‘violent crime[s],’ as defined in G.L.c. 140, section121, as predicate offenses for enhanced sentences under G.L.c. 269, section10G(b). I write separately to encourage the Legislature to consider the wisdom and fairness of the mandatory minimum aspect of those enhanced sentences, especially where the predicate offenses were committed when the defendant was a juvenile.

“First, although the court here, as in other cases, refers to section10G as ‘the armed career criminal act’ or as applying to ‘armed career criminals,’ the statute does not contain these words, and the Legislature never gave the statute that name. See St. 1998, c. 180, section71. And that is for good reason, because many, perhaps most, defendants given enhanced sentences under the provisions of section10G cannot reasonably be characterized as armed career criminals. ‘The term, “armed career criminal,” derives from the Federal Armed Career Criminal Act of 1984, 18 U.S.C. section924(e) (2006), which imposes a mandatory minimum sentence of fifteen years for those convicted of unlawfully possessing a firearm in violation of 18 U.S.C. section922(g) (2006) who have three prior convictions of a “violent felony” or a “serious drug offense.”‘ … But under section10G, a single prior conviction of a ‘violent crime’ or of a ‘serious drug offense’ requires the imposition of a mandatory minimum sentence of no less than three years for anyone convicted of a crime under G.L.c. 269, section10(a), (c), or (h) — provisions which include the offenses of carrying a firearm without a license and the illegal transfer of a firearm or ammunition. See G.L.c. 269, section10G(a). Two such prior convictions, as in this case, require the imposition of a mandatory minimum sentence of no less than ten years. See G.L.c. 269, section10G(b). And, as illustrated by this case, the prior ‘violent crime’ or ‘violent crime[s]’ may have been committed when the defendant was a juvenile — here, the defendant was only fifteen years old when he committed his two predicate offenses.

“The Legislature this year passed landmark criminal justice reform legislation that has begun the process of revisiting the wisdom and fairness of mandatory minimum sentences for certain offenses. See St. 2018, c. 69 (eliminating mandatory minimum sentences for many low-level, nonviolent drug offenses). As that process continues, and as the Legislature examines the wisdom and fairness of other mandatory minimum sentences (including the length of those mandatory minimum sentences), it is important to recognize that many, perhaps most, of the defendants given mandatory minimum sentences as required by section10G are not reasonably characterized as armed career criminals, especially where their predicate crimes were committed when they were juveniles.”

Commonwealth v. Baez (Lawyers Weekly No. 10-143-18) (11 pages) (Cypher, J.) (Gants, C.J., with whom Lenk and Budd, JJ., join, concurring) Question of law reported by Muse, J., in Superior Court. Robert F. Hennessy for the defendant; John P. Zanini (Stacey Pichardo Corson also present) for the commonwealth (Docket No. SJC-12394) (Aug. 23, 2018).