Commonwealth v. Bastos

103 Mass.App.Ct. 376

220 N.E.3d 582

COMMONWEALTH

v.Carlos BASTOS.

No. 21-P-800

Appeals Court of Massachusetts, Plymouth.

Argued May 3, 2023

Decided September 20, 2023

Michael J. Hickson, Springfield, for the defendant.

Mary H. Nguyen, Assistant District Attorney, for the Commonwealth.

Present: Massing, Ditkoff, & Singh, JJ.

MASSING, J.

The defendant, Carlos Bastos, was convicted after a bifurcated bench trial in the Superior Court of unlawful possession of ammunition in violation of G. L. c. 269, § 10 (h ) (1), and of being a prior violent offender with two predicate convictions under the Massachusetts armed career criminal act (ACCA), G. L. c. 269, § 10G (b ). He did not appeal from the judgment, but six years later simultaneously filed three postconviction motions challenging the denial of his motion to suppress, the immunization of a witness, and his sentence. Because the defendant's prior adjudication as a youthful offender for armed robbery did not involve a "deadly weapon" and therefore did not qualify as a "violent crime" within the meaning of the Massachusetts ACCA, we reverse the defendant's conviction under G. L. c. 269, § 10G (b ), and remand for resentencing based on one predicate offense under G. L. c. 269, § 10G (a ). Discerning no other error in the denial of the various motions, we affirm the orders denying them.

Background. In 2011, the defendant was indicted for unlawful possession of ammunition as an "armed career criminal" under G. L. c. 269, § 10G (c ),¹ based on three predicate offenses: a 2007 conviction for assault by means of a dangerous weapon, a 2003 adjudication of delinquency for assault and battery by means of a dangerous weapon (ABDW), and a 2006 youthful offender adjudication for armed robbery while masked. The defendant filed a motion to suppress the ammunition and other evidence, which a judge (first motion judge) denied after an evidentiary hearing in 2012. In 2013, the defendant waived his right to a jury trial and was tried before a different judge (trial judge).

We briefly outline the facts introduced at trial. On July 15, 2011, responding to a report of a shooting at the corner of Green and Newbury Streets in Brockton, Detective Nazaire Paul went to 45 Newbury Street and spoke with Anna Fernandes, the owner of the house. Fernandes led Paul around to the back door, which was open, where Paul encountered Amthomesha Gomes in the kitchen. Gomes said she was home alone and denied that anyone had run inside the house. Paul entered, with Fernandes behind him, and opened a bedroom door, where he found the defendant lying on the bed. Paul escorted the defendant outside, where other officers detained him. Paul, joined by Sergeant Mark Celia, returned to the house and questioned Gomes, who eventually told the officers that they would find bullets in the bedroom. The police found a plastic bag containing four .45 caliber bullets under the mattress on which the defendant had been lying. Gomes told the officers that the defendant had given her the bullets a few days earlier.²

The trial judge found the defendant guilty. At the subsequent bench trial on the ACCA indictment, defense counsel argued, to no avail, that the Legislature had intentionally distinguished between "deadly" weapons and "dangerous" weapons with respect to prior adjudications of delinquency. The judge found that the defendant had been previously convicted of only two prior violent crimes: the assault by means of a dangerous weapon, for which he was convicted as an adult, and the armed robbery, for which he was adjudicated a youthful offender.³ The judge sentenced the defendant to a State prison term of from ten years to ten years and one day, with credit for 777 days of time served. The defendant did not appeal from the judgment.

In 2019, the defendant filed three motions challenging various aspects of his 2013 conviction and sentence: a motion for a required finding of not guilty pursuant to Mass. R. Crim. P. 25 (b) (2), as amended, 420 Mass. 1502 (1995), and two motions for new trial pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). The defendant argued in his rule 25 (b) (2) motion that the evidence at the sentencing enhancement trial was insufficient to prove two predicate offenses because the youthful offender adjudication involved armed robbery with a "fake handgun," and under Commonwealth v. Rezendes, 88 Mass. App. Ct. 369, 37 N.E.3d 672 (2015), that adjudication did not qualify as a violent crime. The defendant argued in his rule 30 motions that the trial judge erred by granting the Commonwealth's application to grant immunity to Gomes to compel her testimony, and that the first motion judge erred by denying the defendant's 2012 motion to suppress. The trial judge denied the defendant's rule 25 (b) (2) motion, but did not act on the new trial motions. A third judge (second motion judge) denied the rule 30 motions. The defendant timely appealed from the denial of each motion.

Discussion. 1. Sentencing. Under G. L. c. 269, § 10G (e ), "violent crime" has the meaning set forth in G. L. c. 140, § 121, which, as relevant here, defines the term as "any act of juvenile delinquency involving the use or possession of a deadly weapon that would be punishable by imprisonment for [a term exceeding one year] if committed by an adult, that ... has as an element the use, attempted use or threatened use of physical force or a deadly weapon against the person of another." In Rezendes, 88 Mass. App. Ct. at 377-378, 37 N.E.3d 672, we held that "for the purposes of the Massachusetts ACCA, a prior juvenile offense may serve as a predicate offense only if the Commonwealth can prove that the weapon used or possessed in the commission of the offense was inherently deadly." See Commonwealth v. Anderson, 461 Mass. 616, 631-632, 963 N.E.2d 704 (2012) ("where a defendant has been previously ‘convicted’ as a juvenile of a ‘violent crime,’ the prior ‘conviction’ should trigger the enhanced sentencing provisions of § 10G only where the act of juvenile delinquency, apart from the other requirements, involves ‘the use or possession of a deadly weapon’ ").⁴ The Commonwealth must prove that the juvenile adjudication involved a deadly weapon "without inquiring into the manner in which [it] was used." Rezendes, supra at 379, 37 N.E.3d 672.

The record at the defendant's sentencing enhancement hearing is devoid of any evidence that his youthful offender adjudication for armed robbery involved a deadly weapon. The use of a deadly weapon could not be inferred merely from the fact of the adjudication, because the crime refers to "being armed with a dangerous weapon," G. L. c. 265, § 17, not a deadly one. See Rezendes, 88 Mass. App. Ct. at 373, 37 N.E.3d 672 (" ‘deadly’ has both a stronger and narrower meaning than ‘dangerous’ "). The Commonwealth presented no evidence of the type of weapon the defendant possessed. With his rule 25 (b) (2) motion, however, the defendant submitted the relevant indictment, which charged him with being "armed with a dangerous weapon, namely: a fake handgun." While a fake or toy handgun can be considered a "dangerous weapon" under G. L. c. 265, § 17, depending on how it is used, see Commonwealth v. Powell, 433 Mass. 399, 401-402, 742 N.E.2d 1061 (2001), nothing in the record indicates that the fake handgun used here was "inherently deadly." The defendant's youthful offender adjudication for armed robbery does not qualify as a "violent crime."

In his rule 25 (b) (2) motion, the defendant sought retroactive application of Rezendes, which was decided after his conviction and sentence became final.⁵ The Commonwealth argues that Rezendes does not apply to cases on collateral review because it constituted a new rule of criminal procedure and, under the "Teague-Bray framework," applied only to cases pending on direct appeal. See Commonwealth v. Ashford, 486 Mass. 450, 457, 159 N.E.3d 125 (2020), citing Teague v. Lane, 489 U.S. 288, 307, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and Commonwealth v. Bray, 407 Mass. 296, 303, 553 N.E.2d 538 (1990). The Teague-Bray framework is inapplicable here, however, because Rezendes involved a question of statutory construction. "In general, when we construe a statute, we do not engage in an analysis whether that interpretation is given retroactive or prospective effect; the interpretation we give the statute usually reflects the court's view of its meaning since the statute's enactment." Ashford, supra at 453, 159 N.E.3d 125, quoting Eaton v. Federal Nat'l Mtge. Ass'n, 462 Mass. 569, 587, 969 N.E.2d 1118 (2012).

Because the Rezendes court's construction of the ACCA was not constitutionally required, we have discretion to apply it prospectively only, but "[t]here must be good reason ‘to disturb the presumptively retroactive application’ of a statutory interpretation." Ashford, 486 Mass. at 453, 159 N.E.3d 125, quoting American Int'l Ins. Co. v. Robert Seuffer GMBH & Co. KG, 468 Mass. 109, 121, 9 N.E.3d 289, cert. denied, 574 U.S. 1061, 135 S.Ct. 871, 190 L.Ed.2d 703 (2014). "This discretion is guided by consideration of the novelty of the interpretation, whether retroactivity is consistent with the purposes of the rule announced, and whether ‘hardship or inequity would result from retroactive application.’ " Ashford, supra, quoting American Int'l Ins. Co., supra.

We discern no good reason not to apply Rezendes retroactively to the defendant's conviction. Distinguishing a "deadly" weapon from a "dangerous" one was not a novel interpretation. The need to prove that a juvenile adjudication involved a "deadly" weapon is not only clear on the face of the statute, see Rezendes, 88 Mass. App. Ct. at 373, 37 N.E.3d 672, but was also signaled in Anderson, 461 Mass. at 631-632, 963 N.E.2d 704, which was decided before the defendant's trial. Retroactive application is consistent with the purpose of the ACCA, which maintains the legislative distinction between juvenile and...