Supreme Judicial Court (May 18, 2007)

The crime of unlawful possession of a firearm during the commission of a felony is proven by evidence that the defendant possessed large quantities of drugs in saleable packaging and, in a nearby locked box, an illegal and loaded handgun and $1,000 in cash.

In sentencing under G.L. c. 265, §18B, the court may not impose probation but is not mandated to impose a minimum term of five years.

During a lawful search of the defendant's bedroom, police officers discovered dozens of individually wrapped packets of crack cocaine and, nearby in a locked box, a loaded firearm and more than $1,000 in cash. The defendant was charged with and convicted of possession of drugs with intent to distribute and, under G.L. c. 265, s. 18B, possession of a firearm in the commission of a felony. The court sentenced the defendant to five years probation. The defendant appealed his conviction and the Commonwealth cross-appealed the judge's sentence.

The defendant's appeal:

The defendant claimed that there was an insufficient connection between the firearm and drug offense, because (he contended) the law requires proof of possession of the weapon during the active commission of a felony instead of, as here, the mere passive possession of drugs with an intent to sell at some time in the future. G.L. c. 265, s. 18B provides that "whoever, while in the commission of . . . an offense which may be punished by imprisonment in the state prison, has in his possession or under his control a firearm, rifle or shotgun. . ." The Commonwealth presented sufficient evidence of the "commission" of the predicate felony: the defendant's possession of significant quantities of drugs in saleable packages. While the Commonwealth must generally prove both the defendant's possession of the firearm and its nexus to the underlying felony, the evidence warranted a finding that the defendant kept the loaded, unlicensed handgun to protect both his drug stash and the cash proceeds of his drug dealing.

The Commonwealth's appeal:

G.L. c. 265, § 18B provides that a defendant, upon conviction, ". . . s hall . . . be punished by imprisonment in the state prison for not less than five years

. . . A sentence imposed under this section for a second or subsequent offense shall not be reduced nor suspended, nor shall any person convicted under this section be eligible for probation, parole, furlough or work release or receive any deduction from his sentence for good conduct until he shall have served the minimum term of such additional sentence." The SJC agreed that the plain language of the statute prohibits the disposition of probation. However, the Court rejected the Commonwealth's argument that the statute calls for a minimum mandatory sentence of five years, as the legislature did not insert that specific word into the language of the statute. Commonwealth v. Lightfoot, 391 Mass. 718, 718 n.1, 721 (1984) (statutory language that the court "shall" impose a prison term "for a period of five years" does not, in absence of the word "mandatory", preclude judicial discretion in sentencing.)