Criminal – Armed Career Criminal Act – Predicate offenses

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Where a defendant moved to dismiss so much of an indictment as alleged more than one previous qualifying conviction, a judge did not err in allowing that motion under Commonwealth v. Resende, 474 Mass. 455 (2016).

Affirmed.

“In Commonwealth v. Resende, 474 Mass. 455 (2016), we interpreted the phrase ‘arising from separate incidences’ as it is used in G.L.c. 269, §10G (§10G), the Massachusetts armed career criminal act (ACCA or act), to mean that a defendant’s prior convictions must be the result of ‘separate, sequential prosecutions’ in order to qualify as predicate offenses for increased sentencing under the act (sequential prosecution rule). … We further stated that prior convictions are ‘sequential’ when ‘the first conviction (and imposition of sentence) occur[s] before the commission of the second predicate crime, and the second conviction and sentence occur before the commission of the third crime.’ …

“At issue in this case is whether Resende‘s interpretation of ‘arising from separate incidences’ was obiter dictum. We conclude that it was not; the court’s interpretation of the phrase was necessary to the court’s reasoning, analysis, and conclusion. Furthermore, we conclude that the judge properly applied the sequential prosecution rule in this case, and we accordingly affirm the dismissal of so much of the defendant’s indictment under §10G(c) as alleges more than a single predicate offense. …

“The Commonwealth now argues that the sequential prosecution rule announced in Resende was merely obiter dictum and thus does not bind us in deciding this case. …

“… In short, the sequential prosecution rule was the result of the court’s considered reasoning, was essential to Resende‘s holding, and is binding here.

“What remains is to apply the sequential prosecution rule to the facts presented here. The Commonwealth acknowledges that the defendant’s earlier convictions stemming from the three prior prosecutions were not sequential in that he had committed all the crimes before being convicted and sentenced for any one of them. Accordingly, the judge correctly dismissed so much of the defendant’s indictment under §10G(c) as alleges more than one predicate offense, and that ruling is affirmed.”

Commonwealth v. Lewis (Lawyers Weekly No. 10-007-26) (14 pages) (Wolohojian, J.) A motion to dismiss was heard by Katie C. Rayburn, J., and a motion for reconsideration was considered by her. Brynn M. Morse (Brian Collins Spring also present) for the commonwealth; Patrick Levin for the defendant (Docket No. SJC-13767) (Jan. 20, 2026).

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