Supreme Judicial Court (December 23, 2009)

The armed home invasion statute, G.L. c. 265, sec. 18C, as amended through St. 2004, c. 150, sec. 17, does not prohibit a judge from sentencing a defendant to probation.

The defendant pleaded guilty to various charges, including attempted murder and armed home invasion. On the home invasion count, the judge sentenced the defendant to five years' probation with conditions, to follow the sentence imposed on the attempted murder charge. The Commonwealth petitioned for relief pursuant to G.L. c. 211, sec. 3, arguing that the G. L. c. 265, sec. 18C does not permit a probationary sentence in lieu of a mandatory 20-year term of incarceration. A single justice reserved and reported the case to the full Court.

The SJC reviewed the "unusual" history of the armed home invasion statute, noting that since its enactment in 1993, it was amended twice. In 1998, G.L. c. 265, sec. 18C was amended to insert language regarding specific firearms; and in 2004, the Legislature deleted several sentences from section 18C, including all references to specific firearms and to probation (probation was included in the 1993 and 1998 versions of the statute). Consequently, section 18C now reads as follows:

" Whoever knowingly enters the dwelling place of another knowing or having reason to know that one or more persons are present within or knowingly enters the dwelling place of another and remains in such dwelling place knowing or having reason to know that one or more persons are present within while armed with a dangerous weapon, uses force or threatens the imminent use of force upon any person within such dwelling place whether or not injury occurs, or intentionally causes any injury to any person within such dwelling place shall be punished by imprisonment in the state prison for life or for any term of not less than twenty years." (Emphasis added)

The defense argued that the Legislature's removal of section 18C's prohibition to probationary sentences may indicate a legislative intent to give a judge the discretion to impose a term of probation. The Court stated that it finds G.L. c. 265, sec. 18C ambiguous with regard to whether it permits a sentence of probation. Therefore, the rule of lenity required the Court to decide that G.L. c. 265, sec. 18C allows a judge to impose a probationary sentence. The Court "invited" the Legislature to clarify G.L. c. 265, sec. 18C.