Supreme Judicial Court, April 27, 2012
The July 1, 2009, amendment to Disorderly Persons, G.L. c. 272, § 53, does not apply retroactively.
In 2008, a criminal complaint issued against the defendant, charging her with disorderly conduct, G.L. c. 272, § 53, which at the time carried a potential incarceration period of up to six months if convicted. Effective July 1, 2009, the statute was amended making the maximum penalty for a first offense disorderly conviction a fine of no more than $150. On July 22, 2009, a jury convicted the defendant of the disorderly offense and she was sentenced to two years of straight probation with conditions. The defendant filed a motion to correct an illegal sentence arguing that two years of probation exceeded the maximum penalty of $150 for disorderly conduct. The trial judge and the Appeals Court denied her motion to correct the illegal sentence. The Supreme Judicial Court granted further appellate review but limited it to the matter of sentencing.
The Court found that the defendant's case is guided by G.L. c. 4, § 6, which sets forth rules for the construction of "strictly penal" statutes. Nassar v. Commonwealth, 341 Mass. 584, 588 (1961) and concluded that “because the July 1, 2009, amendment to G.L. c. 272, § 53, was inconsistent with the statute as it existed prior to that date, the 2009 amendment effected a repeal of the earlier version. However, this repeal did not affect the imposition of two years of straight probation on the defendant. Her punishment was "incurred" on July 13, 2008, the date she committed the offense of disorderly conduct, which was before the effective date of the repeal. Thus, the defendant's punishment was governed by G.L. c. 272, § 53, as it existed on July 13, 2008.” The Court affirmed the judge's denial of the defendant's motion to correct the illegal sentence.