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Massachusetts Habitual Offender Predicates Must Be Separate Incidents

In a recent decision in Commonwealth v. Garvey, the Massachusetts Supreme Judicial Court agreed with the defendant that the habitual criminal statute required that the underlying convictions be based on separate incidents of criminal episodes. Because, in this case, the prosecutor failed to submit evidence to the grand jury that the prior criminal episodes arose from separate incidents, the supreme court affirmed the trial court’s dismissal of the habitual offender indictments.

By way of background, following Garvey’s initial indictments on several drug charges, the prosecutor requested the grand jury to also further indict him under Massachusetts’ habitual offender indictment based on his prior convictions for kidnapping; receiving stolen property; a two gun convictions. Although there was no dispute that this defendant had been previously convicted of these crimes, the challenging the habitual offender indictment arose because the prosecutor never offered evidence to the grand jury as to when these offenses occurred; nor as to what sentences the defendant received as a result of those convictions.Prior to trial, the defendant moved to dismiss the habitual offender indictments because the grand jury heard no evidence establishing that they arose from different criminal episodes or conduct. This motion was allowed by a superior court judge.

In Massachusetts, a person may also be indicted as a Habitual Criminal pursuant to Massachusetts General Laws chapter 269, section 25(a). The habitual criminal statute is a sentencing enhancement that provides for additional or increased penalties where a defendant has two or more prior convictions for which he was sentenced to state prison for a term of three years or more.

On appeal, the prosecutor argued that the habitual criminal statute only required that a defendant have two prior convictions with the qualifying sentences in order to be indicted as a habitual criminal. The defendant argued that, inherent in the legislature’s use of the term “habitual”, the statute required that the person had committed the requisite number of prior criminal acts on different occasions, i.e., that the prior convictions were different and unrelated criminal episodes.

In reviewing the legislative history of the statute, the SJC found that the legislature was focused on separate and distinct prior convictions when it enacted the statute. In other words, the legislature intended to provide for additional penalties for those persons again charged after having been previously convicted from separate incidents.

With regard to the sufficiency of the evidence presented to the grand jury, the government argued that prosecutors only had to establish that the defendant had been twice previously convicted, without evidence that those convictions arose from separate criminal episodes. The Massachusetts Supreme Judicial Court disagreed…

The SJC noted that, in this case, the grand jurors heard no evidence that would have warranted the conclusion that this defendant’s prior convictions arose from distinct criminal conduct. Specifically, they heard no information about the underlying circumstances regarding those prior convictions, including when they took place, and how or how not they were related to one another. The grand jurors here, therefore, were not able to determine whether the prior convictions arose from distinct criminal episodes or out of a single criminal incident. For this reason, it was error for the grand jury to find probable cause to believe that there was probable cause for the additional indictment of the defendant as a habitual criminal.

In practice, there are thousands of instances where persons charged with a crime obtain a very favorable or lenient plea deal. Often times, they could be facing several years in state prison, or even a term in the house of corrections, and are presented with an offer to avoid a prison sentence in exchange for a guilty finding.

Unfortunately, far too many defendants in these situations do not understand or are even never explained the consequences of what a guilty finding may have on them if they are ever arrested and charged again in the future.  Care must be taken in accepting any plea deal, including knowing the immediate, as well as collateral consequences that a guilty finding or plea may have.

Boston Criminal Lawyer Lefteris K. Travayiakis.