Supreme Judicial Court, March 9, 2012

A prior adjudication as a youthful offender for carjacking cannot be used as a predicate offense under G.L. c. 269, § 10G without proof of the use or possession of a deadly weapon.

A conviction of armed robbery is not duplicative of a conviction of assault by means of a dangerous weapon.

In October 2009, a jury concluded that the defendant was one of two men who had robbed a Dorchester store clerk by placing a loaded revolver on the counter and demanding “the money from the cash register and the lottery.”  The defendant was convicted of armed robbery, assault by means of a dangerous weapon, carrying a firearm without a license, unlawfully possessing ammunition, carrying a loaded firearm and possessing a firearm during the commission of a felony.  The Commonwealth presented evidence that the defendant previously had been convicted as an adult of distribution and possession with intent to distribute a class B substance, as well as youthful offender convictions of assault and battery by means of a dangerous weapon and carjacking.  The jury found that the defendant was an armed career criminal, level three, in violation of G.L. c. 269, § 10G(c), which requires a mandatory minimum sentence of fifteen years for illegally carrying a firearm.

The defendant raised several arguments on appeal.  On its own initiative, the SJC transferred the case from the Appeals Court.  The defendant argued that: 1) the motion judge erred in denying his motion to suppress;i 2) the trial judge erred in allowing the defendant’s youthful offender adjudication for carjacking to be used as one of the three prior adjudications of a violent crime or a serious drug offense necessary to find him an armed career criminal, level three; 3) his conviction of assault by means of a dangerous weapon was duplicative of his conviction for armed robbery while masked; and 4) his conviction of unlawful possession of ammunition was duplicative of his conviction for carrying a loaded firearm.ii

Sentencing enhancement based on youthful offender adjudication of carjacking
When a defendant convicted of carrying a firearm without a license, in violation of G.L. c. 269, § 10(a), previously has been “convicted of three violent crimes, as defined in G.L. c. 140, § 121, or three serious drug offenses, as defined in G.L. c. 269, § 10G(e), or some combination totaling three, he is characterized as an armed career criminal, level three, and ‘shall be punished by imprisonment in the state prison for not less than fifteen years nor more than twenty years.’”  G.L. c. 269, § 10G(c).   “Violent crime” is defined in G.L. c. 140, § 121 as:

“Any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or possession of a deadly weapon that would be punishable by imprisonment for such term if committed by an adult that: (i) has as an element the use, attempted use or threatened use of physical force or a deadly weapon against the person of another; (ii) is burglary, extortion, arson or kidnapping; (iii) involves the use of explosives; or (iv) otherwise involves conduct that presents a serious risk of physical injury to another.”

The defendant argued that his prior adjudication as a youthful offender for carjacking is not a conviction of a “violent crime.”  Therefore, he argued, he could not be characterized as an armed career criminal, level three.  The Commonwealth argued that the nature of the adjudication determines whether an act is a “crime” that can be considered a “violent crime.”  “According to the Commonwealth, where a child is adjudicated delinquent on a complaint after he is found to have committed a carjacking, the carjacking is an ‘act of juvenile delinquency,’ but where a child is adjudicated a youthful offender based on the same finding of proof beyond a reasonable doubt, the carjacking is a ‘crime.’”

The Court found that the Commonwealth misconstrued the legislative purpose in enacting the youthful offender law.  The Court acknowledged the longstanding principle that children who violate laws, even when adjudicated “youthful offenders,” are not subject to criminal proceedings.  “[A]n adjudication of a juvenile as a youthful offender subjects him to more severe penalties, including State prison sentences, but it does not transform his illegal act from an act of delinquency into a crime, and does not change the statutory obligation to treat him ‘as far as practicable’ as a child ‘in need of aid, encouragement and guidance’ rather than as a criminal.” G.L. c. 119, § 53.  See Commonwealth v. Connor C., 432 Mass. 635, 641-642 (2000).

The Court also noted that the armed career criminal statute, G.L. c. 269, § 10G, was passed in 1998, which was two years after the Legislature enacted the youthful offender law.  “Thus, we presume that the Legislature knew that certain juveniles could be tried as youthful offenders when it enacted § 10G, and recognized that an ‘act of juvenile delinquency’ may constitute a ‘violent crime’ under G.L. c. 140 § 121, that may be used to enhance a firearm sentence only where it involved ‘the use or possession of a deadly weapon.” Globe Newspaper Co., petitioner, 461 Mass. 113, 117 (2011).  “We also presume that, if the Legislature wished youthful offender adjudications to be treated as adult convictions and to be used as predicate offenses under § 10G without proof of ‘the use or possession of a deadly weapon,’ it would have done so expressly.

In this case, the defendant was not “convicted” of armed carjacking where “being armed with a dangerous weapon” is an element of the crime.  The Court found that there was insufficient evidence to find that the defendant’s “conviction” of unarmed carjacking involved “the use or possession of a deadly weapon.”  Therefore, the defendant’s prior adjudication of carjacking cannot be considered a “conviction of a violent crime” for purposes of a sentencing enhancement under § 10G.  The Court vacated the defendant’s sentence under § 10G(c), and ordered resentencing pursuant to § 10G(b) based on the defendant’s prior convictions of one violent crime and one serious drug offense.

Duplicative convictions
The defendant argued that his convictions of armed robbery and assault by means of a dangerous weapon are duplicative.  The Court reiterated its rule that “a defendant may properly be punished for two crimes arising out of the same course of conduct provided that each crime requires proof of an element that the other does not.”  Commonwealth v. Valliere, 437 Mass. 366, 371 (2002).  The Court applied this elements-based approach and found that a conviction of armed robbery is not duplicative of a conviction of assault by means of a dangerous weapon.  “[A]rmed robbery has a required element – the theft of money or property – that is not required to prove assault by means of a dangerous weapon, and assault by means of a dangerous weapon has a required element – the use of a dangerous weapon to commit the assault – that is not required to prove armed robbery.”

 

i In concluding that the judge did not err in denying the motion to suppress, the Court provided a thorough discussion regarding the reliability of an anonymous caller in determining whether the police had reasonable suspicion to make an investigative stop of the vehicle that the defendant was in.

ii The Court found that the defendant’s conviction of unlawful possession of ammunition must be vacated because he had been convicted of carrying a loaded firearm.