Commonwealth v. Psikarakis; Commonwealth v. Smith

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SJC-13792

SJC-13796

COMMONWEALTH vs. STEFANOS PSIKARAKIS.

COMMONWEALTH vs. MAURICE SMITH.

Middlesex. December 3, 2025. - March 20, 2026.

Present: Budd, C.J., Gaziano, Kafker, Wendlandt, Georges,

Dewar, & Wolohojian, JJ.

Firearms. Practice, Criminal, Sentence. Statute, Construction.

Indictments found and returned in the Superior Court

Department on August 17, 2022.

A motion to revise and revoke sentence was heard by

Catherine H. Ham, J.

The Supreme Judicial Court on its own initiative

transferred the case from the Appeals Court.

Indictments found and returned in the Superior Court

Department on December 5, 2023.

A motion to revise and revoke sentence was heard by Patrick

M. Haggan, J.

The Supreme Judicial Court on its own initiative

transferred the case from the Appeals Court.

2

Chia Chi Lee, Special Assistant District Attorney (David

Yasinovsky, Assistant District Attorney, also present) for the

Commonwealth.

Timothy St. Lawrence for Stefanos Psikarakis.

Keith Durden for Maurice Smith.

GAZIANO, J. We return to sentencing under G. L. c. 269,

§ 10 (m) (§ 10 [m]), which prohibits the unlawful possession of

a large capacity firearm or feeding device. In Commonwealth v.

Rodriguez, 482 Mass. 366, 373-374 (2019), the court examined the

minimum end of an indeterminate sentence and held that an

individual convicted of a § 10 (m) violation "lawfully may be

sentenced to State prison for not less than one year nor more

than two and one-half years." The issue here is the maximum end

of a § 10 (m) indeterminate sentence and, specifically, whether

a judge may sentence a defendant convicted of violating § 10 (m)

to a maximum term of one year and one day. In the two cases

before us, the defendants, Stefanos Psikarakis and Maurice

Smith, after pleading guilty to violating § 10 (m), were each

sentenced to from one year to one year and one day in State

prison.1

We hold that the sentencing range for a violation of

§ 10 (m) requires a maximum term of incarceration of at least

two and one-half years. Accordingly, as the maximum term of

1 Although the two appeals are not consolidated, they were

paired for oral argument and are addressed in a single opinion

because they raise essentially identical questions of law.

3

each defendant's indeterminate sentence is less than two and

one-half years, the defendants' sentences are both unlawful.

Background. 1. Psikarakis. In March 2022, a witness

provided police with a video recording showing Psikarakis in

possession of an AR-15 style rifle while inside his Woburn home.

The witness further informed officers that Psikarakis had been

building these weapons and provided police with additional

images of firearms in the defendant's home in June 2022. While

executing a search warrant a few days later at Psikarakis's

residence, police found four AR-15 style rifles, three pistols,

dozens of magazines with thirty-round capacity, and over 1,000

rounds of ammunition.

On August 17, 2022, a grand jury indicted Psikarakis for

multiple firearm-related offenses, including four counts of

unlawful possession of a large capacity firearm and one count of

unlawful possession of a large capacity feeding device, in

violation of § 10 (m); and three counts of unlawful possession

of a firearm and one count of unlawful possession of ammunition,

in violation of G. L. c. 269, § 10 (h). At a July 25, 2024,

plea conference, a Superior Court judge indicated that, as to

the § 10 (m) charges, she would accept Psikarakis's

recommendation of a State prison sentence of from one year to

one year and one day. The Commonwealth maintained that § 10 (m)

requires a maximum sentence of at least two and one-half years.

4

Psikarakis pleaded guilty to all the charges on July 31,

2024. The judge, over the Commonwealth's objection, sentenced

Psikarakis on the § 10 (m) convictions to from one year to one

year and one day in State prison.2 She also sentenced Psikarakis

to a three-year term of probation on the remaining offenses.

That same day, as to the § 10 (m) sentence, the prosecutor moved

to revise and revoke an illegal sentence. See Mass. R. Crim. P.

29 (a) (1), as appearing in 489 Mass. 1503 (2022). The judge

denied the Commonwealth's motion by margin endorsement. She

concluded that

"Rodriguez clearly states that a legal sentence of

[§ 10 (m)] is '[S]tate prison for not less than one year

nor more than two and one-half years.' . . . This

[c]ourt's sentence of [from] one year to one year and [one]

day in [S]tate prison is consistent with the statute ('The

sentence imposed upon such person shall not be reduced to

less than one year . . .') and Rodriguez."

2 During the plea hearing, the judge offered the prosecutor

the option of "hold[ing] off" on sentencing "for an appeal."

The prosecutor, indicating that he had "moved for sentencing,"

declined. We note that rule 29 provides the Commonwealth with a

narrow right to move to revise or revoke an illegal sentence

"within sixty days of [the] disposition," and thereafter, the

Commonwealth may appeal from a "final order" on the motion.

Mass. R. Crim. P. 29 (a) (1), (e), as amended, 489 Mass. 1503

(2022). See Reporter's Notes to Rule 29 (a) (2016),

Massachusetts Rules of Court, Rules of Criminal Procedure, at

201 (Thomson Reuters 2025) (Commonwealth's authority to file

rule 29 motion is "narrow"). The Commonwealth's ability to

appeal prior to imposition of the sentence, given this available

alternate remedy, is less than certain. See Commonwealth v.

Beverly, 485 Mass. 1, 5 (2020) (discussing interlocutory review

of illegal sentence following amendments to rule 29 permitting

Commonwealth's appeal). See also id. at 22-23 (Lenk, J.,

concurring).

5

Thereafter, the Commonwealth appealed, and the case entered

in the Appeals Court. We transferred the case to this court on

our own motion.

2. Smith. In the early morning of April 14, 2023, police

responded to a fight between Smith and his girlfriend. The

victim informed responding officers that Smith had grabbed her

by her neck and, when she resisted, ripped her shirt off her

body. During a search incident to his arrest, officers found a

loaded Glock 26 pistol in Smith's pocket equipped with a

partially loaded fifteen-round magazine.

On December 5, 2023, a grand jury returned indictments

charging Smith with unlawful possession of a large capacity

firearm, in violation of § 10 (m) (count one); unlawful

possession of a firearm, in violation of G. L. c. 269, § 10 (a)

(count two); unlawful possession of a loaded firearm, in

violation of G. L. c. 269, § 10 (n) (count three); and assault

and battery on a family or household member, in violation of

G. L. c. 265, § 13M (count four). The same judge who sentenced

Psikarakis accepted Smith's guilty pleas as to all four charges

on September 30, 2024. During the plea colloquy, she informed

Smith that she intended to sentence him to a term of from one

year to one year and one day in State prison on count one

(§ 10 [m] sentence), a concurrent term of eighteen months in a

house of correction on count two, and a consecutive probationary

6

term of one year on counts three and four. The Commonwealth

objected to the § 10 (m) sentence and filed a motion to revise

and revoke an illegal sentence. At Smith's request, the case

was continued for sentencing to December 2, 2024.

On December 2, a different judge imposed the above-

mentioned sentences (sentencing judge). The sentencing judge

denied the Commonwealth's motion to revise and revoke both

orally on that day -- noting that its rights were preserved --

and by margin endorsement on December 4. The Commonwealth

appealed from the denial. After the case was entered in the

Appeals Court, we transferred it to this court on our own

motion.

Discussion. 1. Section 10 (m) maximum term. A brief

discussion of indeterminate sentencing lends context to our

inquiry into the permissible maximum term for a violation of

§ 10 (m). Under G. L. c. 279, § 24 (§ 24), a judge imposing a

State prison sentence is "not to fix the specific term of

imprisonment" (a determinate sentence), but instead must "fix a

maximum and a minimum term of imprisonment" (an indeterminate

sentence) within the bounds of the statutory punishment.

Commonwealth v. Brown, 431 Mass. 772, 774 (2000). See

Commonwealth v. Rossetti, 489 Mass. 589, 595-596 (2022). "[A]s

used in § 24, 'minimum term' refers to the length of time

imposed as the lower end of a sentence expressed as a range; it

7

indicates the shortest period of time to which the offender is

sentenced." Id. In general, a prisoner is not eligible for

parole before serving the minimum term of imprisonment, reduced

by earned good conduct credits. See Commonwealth v. Sharma, 488

Mass. 85, 87 (2021); Brown, supra. See also G. L. c. 127,

§ 133. The maximum term "is just that, the maximum amount of

time that [a] prisoner will serve in prison" -- that is, the

upper end of a sentence expressed as a range -- if not granted

parole (citation omitted). Brown, supra.

In determining the permissible maximum term of the

defendants' sentences, we consider the interplay between two

sentencing provisions within § 10 (m) applicable to violators,

such as the defendants, not in possession of valid firearm

identification (FID) cards.3 Rodriguez, 482 Mass. at 368-369.

3 The version of G. L. c. 269, § 10 (m), as amended through

St. 2014, c. 284, § 91, in effect at the time of the defendants'

2022 and 2023 offenses, provided, in part:

"Notwithstanding the provisions of paragraph (a) or (h),

any person not exempted by statute who knowingly has in his

possession, or knowingly has under his control in a

vehicle, a large capacity weapon or large capacity feeding

device therefor who does not possess a valid license to

carry firearms issued under [G. L. c. 140, § 131 or 131F],

except as permitted or otherwise provided under this

section or [G. L. c.] 140, shall be punished by

imprisonment in a state prison for not less than two and

one-half years nor more than ten years. The possession of

a valid firearm identification card issued under [§] 129B

shall not be a defense for a violation of this subsection;

provided, however, that any such person charged with

violating this paragraph and holding a valid firearm

8

The first provision states that any person convicted under it

shall be punished by "imprisonment in a [S]tate prison for not

less than two and one-half years nor more than ten years."

G. L. c. 269, § 10 (m). The second provision states: "The

sentence imposed upon such person shall not be reduced to less

than one year, nor suspended, nor shall any person convicted

under this subsection be eligible for probation, parole,

furlough, work release or receive any deduction from his

sentence for good conduct until he shall have served such

minimum term of such sentence . . . ." Id. The two sentencing

provisions, we noted in Rodriguez, supra at 369-370, "provide

identification card shall not be subject to any mandatory

minimum sentence imposed by this paragraph. The sentence

imposed upon such person shall not be reduced to less than

one year, nor suspended, nor shall any person convicted

under this subsection be eligible for probation, parole,

furlough, work release or receive any deduction from his

sentence for good conduct until he shall have served such

minimum term of such sentence; provided, however, that the

commissioner of correction may, on the recommendation of

the warden, superintendent or other person in charge of a

correctional institution or the administrator of a county

correctional institution, grant to such offender a

temporary release in the custody of an officer of such

institution for the following purposes only: (i) to attend

the funeral of a spouse or next of kin; (ii) to visit a

critically ill close relative or spouse; or (iii) to obtain

emergency medical services unavailable at such institution.

Prosecutions commenced under this subsection shall neither

be continued without a finding nor placed on file. The

provisions of [G. L. c. 276, § 87,] relative to the power

of the court to place certain offenders on probation shall

not apply to any person [eighteen] years of age or over

charged with a violation of this section."

9

for mandatory minimum sentences, albeit different ones." The

statute was therefore ambiguous. See id. at 369-370, 374.

To harmonize the mandatory minimums within these two

provisions "in a manner that [did] not make any of the statutory

language superfluous," and applying the rule of lenity in the

defendant's favor, we concluded that the Legislature intended to

establish "a lower end of the sentencing range of from one to

two and one-half years, with at least one year to serve, in

State prison." Rodriguez, 482 Mass. at 370-371, 373-374. As a

result, a sentencing judge may lawfully sentence a defendant

convicted of violating § 10 (m) to State prison for a minimum

term of from one year to two and one-half years. Id. at 374.

With that background in mind, we now turn to the issue in

these cases -- the maximum term for a violation of § 10 (m). As

with any other statute, we are required to construe § 10 (m) in

a manner that gives effect "to all its provisions, so that no

part will be inoperative or superfluous" (citation omitted).

Commonwealth v. Dossantos, 472 Mass. 74, 79 (2015). See

Commonwealth v. Fleury, 489 Mass. 421, 427 (2022) ("[a]

fundamental and long-standing principle of statutory

interpretation [is] that we must strive to give effect to each

word of a statute so that no part will be inoperative or

superfluous" [quotation and citation omitted]). Given this

rule, we agree with the Appeals Court's recent conclusion in

10

Commonwealth v. DaSilva, 105 Mass. App. Ct. 732, 738 (2025),

that "[t]o permit judges to impose sentences with both the

minimum and maximum terms falling completely outside of the full

sentencing range set forth in the first [provision of § 10 (m)]

would render the 'not less than two and one-half years' language

of that [provision] null."

On appeal, Psikarakis argues that under the rule of lenity,

ambiguities in the statutory punishments (imprisonment for not

less than two and one-half years in the first provision and a

one-year mandatory sentence in the second provision) must be

resolved in his favor. He urges the court to "simply ignore"

the first provision's reference to "imprisonment in a [S]tate

prison for not less than two and one-half years," G. L. c. 269,

§ 10 (m), and "let the Legislature make any necessary

clarification." This would, he contends, avoid a "strained"

reading of the statute and preserve judicial sentencing

discretion.

Psikarakis's suggested application of the rule of lenity

goes too far. The rule of lenity dictates that a court construe

an ambiguous criminal statute for the benefit of the defendant,

with any "rational doubt" as to the statute's meaning being

resolved in favor of the accused (citation omitted).

Commonwealth v. Morrison, 494 Mass. 763, 771 (2024). While we

resolve statutory ambiguities in a defendant's favor, the rule

11

of lenity does not permit the court to "simply ignore" text that

does not support a more lenient interpretation. See

Commonwealth v. Mattier (No. 2), 474 Mass. 261, 268 n.11 (2016)

("all reasonable interpretations of an ambiguous statute are

resolved in favor of the defendants" [emphasis added]). See

also Commonwealth v. Harding, 485 Mass. 843, 850 (2020) (court

construed ambiguous sex offender registration requirement in

"most reasonable and administrable" fashion consistent with rule

of lenity). Thus, we cannot sidestep entirely that portion of

§ 10 (m) that requires a defendant to serve not less than two

and one-half years in State prison. The maximum term of a

defendant's sentence under § 10 (m) therefore must be at least

two and one-half years.

2. Rodriguez decision. Next, we address the

Commonwealth's argument that Rodriguez, 482 Mass. 366, was

wrongly decided. The Commonwealth requests that we reconsider

the conclusion that § 10 (m) is ambiguous. In the

Commonwealth's view, the sentencing provisions easily are

harmonized because the second provision (precluding reduction of

the sentence to less than one year) concerns the subsequent

"administration" of a sentence under § 10 (m) when factoring in

earned good conduct credit, not the initial imposition of the

sentence. The Commonwealth argues that for non-FID-card

holders, § 10 (m), properly understood, "requires a mandatory

12

minimum sentence of two and [one-]half years," and that the

lowest legal sentencing range that may be imposed for violating

the statute is a term of from two and one-half years to two and

one-half years and one day.

We decline to revisit our interpretation of § 10 (m) in

Rodriguez. It is well settled that "[t]he principle of stare

decisis is particularly weighty where, as here, the Legislature

has declined to exercise its authority to overturn the court's

interpretation of a statute" (quotations and citation omitted).

Chapman, petitioner, 482 Mass. 293, 306 (2019). See Theisz v.

Massachusetts Bay Transp. Auth., 495 Mass. 507, 521 (2025)

("Stare decisis carries enhanced force in connection with our

construction of a statute, where our decision effectively

become[s] part of the statutory scheme" [quotations and citation

omitted]). In fact, five years after we decided Rodriguez, the

Legislature amended § 10 (m) and did not see fit to undo our

interpretation of the penalty provisions. See St. 2024, c. 135,

§ 125 (amending § 10 [m] to replace "weapon" with "firearm").

The Commonwealth has "identified no compelling reason to

depart" from our interpretation of § 10 (m) in Rodriguez.

Theisz, 495 Mass. at 521. In Rossetti, 489 Mass. at 606-609, we

distinguished § 10 (m) from other sentencing schemes by noting

that the "vexing" nature of § 10 (m) led the Rodriguez court to

13

its conclusion (citation omitted).4 The Rossetti court added,

"The court's decision to depart from a plain language

interpretation in Rodriguez . . . was required because other

language in § 10 (m) rendered unclear the meaning of the [first

provision of § 10 (m), discussed supra]." Id. at 608.5

4 The Commonwealth points out that other statutes have

similar sentencing provisions. See, e.g., G. L. c. 90,

§ 24G (a) (person convicted of motor vehicle homicide while

under influence of alcohol or drugs "shall be punished by

imprisonment in the [S]tate prison for not less than [two and

one-half] years nor more than [fifteen] years . . . or by

imprisonment in a jail or house of correction for not less than

[one] year nor more than [two and one-half] years . . . . The

sentence imposed upon such person shall not be reduced to less

than [one] year . . ."); G. L. c. 90B, § 8A (1) (person

convicted of recklessly or negligently operating vessel while

under influence of alcohol or drugs causing bodily injury "shall

be punished by imprisonment in the [S]tate prison for not less

than two and one-half years nor more than ten years . . . . The

sentence imposed upon such person shall not be reduced to less

than six months . . ."); G. L. c. 272, § 7 (person convicted of

deriving support from prostitution "shall be punished by

imprisonment in the [S]tate prison for a period of five years

. . . . The sentence of imprisonment imposed under this section

shall not be reduced to less than two years . . ."). This

opinion, applying principles of stare decisis, does not extend

beyond G. L. c. 269, § 10 (m).

5 The logic of the dissent is infirm. We track her opinion

as follows. First, the punishment established by the

Legislature for a violation of § 10 (m), for non-FID-card

holders, is a mandatory minimum term of two and one-half years

with a maximum sentence of ten years. Post at . A defendant

is ineligible for parole, or other forms of release, prior to

serving the minimum term of that sentence. Id. at . Under

that scheme, we note, a sentencing judge would be required to

impose an indeterminate prison term of at least two and one-half

years to two and one-half years and one day. See, e.g.,

Commonwealth v. Ashford, 486 Mass. 450, 452 (2020) (defendant

sentenced under armed career criminal enhancement to mandatory

minimum sentence of not less than ten years and not more than

14

3. Double jeopardy. Finally, we conclude that principles

of double jeopardy do not bar resentencing Psikarakis.6 The

State may not increase a defendant's sentence once his or her

reasonable expectation of finality in the imposed sentence has

"crystallized." Martin v. Commonwealth, 492 Mass. 74, 78

(2023), quoting Commonwealth v. Selavka, 469 Mass. 502, 513

(2014). "This protection from governmental overreach . . . [is]

ten years and one day). Second, we are bound by stare decisis

to follow Rodriguez. Post at . Third, Rodriguez concerns

only the minimum term of an indeterminate sentence and has no

effect on the maximum term. Id. at . It would seem that the

dissent, unbound by Rodriguez, would impose a maximum term

(faithful to the plain language of the statute) of imprisonment

for any term between two and one-half years and one day to ten

years. Yet, the dissent asserts that the statute permits a

lesser maximum sentence of one year and one day. Id. at .

Thus, a mandatory term of incarceration of two and one-half

years, which the dissent acknowledges is prescribed by the

Legislature, disappears.

6 The defendants did not raise a double jeopardy argument in

their appellate briefs. Smith had good reason. In the plea

colloquy, the judge carefully advised Smith that the issue of a

lawful sentencing range for a violation of § 10 (m) was

unsettled, the Commonwealth would be appealing, and it was

possible that an appellate court would remand for resentencing.

See Commonwealth v. Selavka, 469 Mass. 502, 513 (2014), and

discussion infra. There was no such colloquy in Psikarakis's

case.

Psikarakis, at oral argument, and in a subsequent letter

filed pursuant to Mass. R. A. P. 16 (l), as appearing in 481

Mass. 1628 (2019), contended that principles of double jeopardy

preclude resentencing. Thereafter, the Commonwealth filed a

postargument response. Because the Commonwealth has had an

opportunity to address the double jeopardy implications of

resentencing, we exercise our discretion to address the issue.

See Commonwealth v. Gumkowski, 487 Mass. 314, 321 n.13 (2021).

15

required by principles of double jeopardy even where the

defendant's sentence [is] 'illegal' insofar as the imposed

sentence did not comply with the minimum sentence prescribed by

the relevant statute for the offense of which the defendant was

convicted." Martin, supra. In determining a defendant's

legitimate expectation of finality, we examine various factors,

including whether the original sentence was legal or illegal;

the timeliness of a motion to revise or revoke; and whether the

sentence has been fully served. Commonwealth v. Ellsworth, 485

Mass. 29, 34 (2020).7

In Ellsworth, 485 Mass. at 32-33, for example, a judge

unlawfully entered a continuance without a finding without

imposing any terms and conditions or probation. Although the

Commonwealth filed a timely motion to revise or revoke, we held

that principles of double jeopardy barred resentencing because

of practical considerations, including the fact that two years

had passed since the continuance without a finding and that, had

7 We also noted in Ellsworth, 485 Mass. at 34, that the

court may consider "whether a motion to stay the execution of

the sentence was filed." Id., citing Commonwealth v. Resende,

427 Mass. 1005, 1005 (1998). Ellsworth and Resende each

addressed the Commonwealth's failure to file a motion to stay a

sentence pending appeal from continuances without a finding.

See Ellsworth, supra at 31-32, 34; Resende, supra. In the

context of those cases, a decision by an appellate court "would

have [had] no effect on the defendants' status" because the

defendants had already served the probationary period of their

sentences, and the cases had been dismissed. Resende, supra at

1006. See Ellsworth, supra at 34.

16

the judge imposed terms and conditions or probation, such terms

would have been satisfied within a short period of time. Id. at

34-35. See Martin, 492 Mass. at 79-81 (double jeopardy

principles barred resentencing where 177 days had passed since

date that illegal sentence was imposed); Selavka, 469 Mass. at

513-515 (belated imposition of probation condition beyond sixty-

day period set forth in Mass. R. Crim. P. 29 [a] violated

principle of finality).

Here, the original sentence of from one year to one year

and one day was illegal. Further, the Commonwealth, in a plea

conference and subsequent plea hearing, maintained that

Rodriguez required a maximum term of at least two and one-half

years in State prison. After sentencing, the Commonwealth filed

a motion to revise and revoke an illegal sentence the very same

day that Psikarakis was sentenced -- well within the sixty-day

time limit specified by Mass. R. Crim. P. 29 (a) (1) -- and

immediately appealed from the denial thereof. Contrast Martin,

492 Mass. at 79-80 ("Absent some action during this [sixty-day]

window [under rule 29 (a)], the time for the appellate process

has come to an end, and the defendant has a reasonable

expectation of finality in the sentence, even an illegal one").

Cf. Reporter's Notes to Rule 29 (a) (2016), Massachusetts Rules

of Court, Rules of Criminal Procedure, at 202 (Thomson Reuters

2025) (after sixty-day time limit under rule 29 [a] [1] has

17

lapsed, "any motion to revise or revoke an illegal sentence must

come from the defendant under [Mass. R. Crim. P. 30 (a), as

appearing in 435 Mass. 1501 (2001)], which would raise no

double-jeopardy problems"). On the other side of the ledger, it

appears that Psikarakis has already fully served his sentence of

from one year to one year and one day.8 See Ellsworth, 485 Mass.

at 34.

In the circumstances presented, we conclude that Psikarakis

did not have a legitimate expectation of finality in the illegal

sentence. Compare Commonwealth v. Sanchez, 485 Mass. 491, 507

(2020) (defendant remains in continuing jeopardy from first

prosecution through end of appellate process), with Selavka, 469

Mass. at 514-515 (double jeopardy protections precluded

additional probation condition where "defendant had every reason

to believe that his sentence would remain fixed; he could not

have anticipated that the judge might revisit his initial

sentenc[e]"). Accordingly, Psikarakis may be resentenced.

Conclusion. For the foregoing reasons, as to each

defendant's case, we reverse the denial of the Commonwealth's

motion to revise and revoke, vacate any § 10 (m) sentence, and

remand to the Superior Court for resentencing.

So ordered.

8 At the time of sentencing, Psikarakis was credited with

368 days of time served.

WENDLANDT, J. (dissenting). Because neither stare decisis

nor our canons of construction require the court's novel

construction of the phrase "for not less than two and one-half

years" in G. L. c. 269, § 10 (m) (§ 10 [m]), as the minimum of

the maximum sentence that a sentencing judge may impose, I

dissent.

If I were writing on a tabula rasa, I would construe

§ 10 (m), which prohibits the unlawful possession of a large

capacity firearm or feeding device, to require the following

sentences, depending on whether the violator possessed a valid

firearm identification (FID) card. See Commonwealth v.

Rodriguez, 482 Mass. 366, 366 (2019), citing G. L. c. 269,

§ 10 (m).

First, for violators who did not possess a valid FID card

(non-FID-card holders), the sentencing judge must impose a

mandatory minimum term of two and one-half years with a maximum

sentence of ten years. See G. L. c. 269, § 10 (m) (first

provision, stating that offenders who are non-FID-card holders

"shall be punished by imprisonment . . . for not less than two

and one-half years nor more than ten years"); id. (second

provision, distinguishing between non-FID-card holders and FID

card holders and noting with respect to latter that "such

person . . . shall not be subject to any mandatory minimum

sentence").

2

Second, for FID card holders, the sentencing judge need not

impose any mandatory minimum sentence; thus, a sentencing

judge's discretion in sentencing FID card holders is governed by

neither the two-and-one-half-year minimum term provided for non-

FID-card holders nor the one-year mandatory minimum term set

forth in the third provision, discussed infra.1 Id. (second

provision, referring to offender who possessed valid FID card as

"such person" and stating that "such person" "shall not be

subject to any mandatory minimum sentence imposed by this

paragraph"). If the sentencing judge determines to impose a

sentence of incarceration for an FID card holder that exceeds

one year, however, the "sentence imposed upon such person[2]

shall not be reduced" to less than one year;3 moreover, any

1 However, the maximum sentence for FID card holders is the

same as non-FID-card holders, ten years. G. L. c. 269, § 10 (m)

(second provision exempts FID card holders only from "any

mandatory minimum sentence" imposed by § 10 [m]).

2 In Rodriguez, the court determined that "such person"

referred to non-FID-card holders, reasoning that construing

"such person" to refer to FID card holders would render the

third provision inapplicable to non-FID-card holders altogether.

Rodriguez, 482 Mass. at 369 n.2. As discussed infra, this

reasoning fails to consider that the third provision

distinguishes between certain relief (reduction and suspension),

which applies to "such person," and other relief (eligibility

for probation, parole, furlough, work release or deduction for

good conduct), which applies to "any person convicted under"

§ 10 (m).

3 The operative words in the third provision of § 10 (m) --

"sentence imposed" on "such person" and "shall not be reduced"

-- further indicate that this portion of the third provision

3

sentence of incarceration imposed (whether for one year or

otherwise) shall not be suspended.4 Id. (third provision,

providing that sentence "imposed" on "such person," which is

same language used to refer to FID card holders in second

provision, "shall not be reduced to less than one year, nor

suspended").

Third, for "any person convicted under" G. L. c. 269,

§ 10 (m), regardless of whether the person possessed a valid FID

card, the third provision further provides that the person shall

not "be eligible for probation, parole, furlough, work release

applies specifically to the administration of the sentence for

FID card holders, not to the discretion of the sentencing judge

imposing it. See G. L. c. 127, §§ 129C (prisoners are eligible

for deductions of sentence for "satisfactory conduct"), 129D

("Prisoners are eligible to earn . . . good conduct deductions

. . . for participation in and completion of [certain] programs

and activities . . ."), 133 (stating that "minimum term[s] of

sentence may be reduced"). By contrast, this portion of the

third provision does not apply to non-FID-card holders.

4 Section 10 (m) provides further that "[p]rosecutions

commenced under this subsection shall neither be continued

without a finding nor placed on file." Moreover, § 10 (m) also

strips the sentencing judge of the power, inter alia, to place

an adult offender, regardless of whether the offender possessed

a valid FID card, on probation. See G. L. c. 269, § 10 (m)

("The provisions of [G. L. c. 276, § 87,] relative to the power

of the court to place certain offenders on probation shall not

apply to any person [eighteen] years of age or over charged with

a violation of this section"); G. L. c. 276, § 87 (empowering

judge to "place on probation . . . any person before [him or

her] . . . for such time and upon such conditions as [judge]

deems proper . . . in any case after a finding or verdict of

guilty"). Thus, regardless of whether the offender possessed a

valid FID card, a sentencing judge may not sentence the offender

to probation; the sentence imposed must be one of incarceration.

4

or receive any deduction from his sentence for good conduct

until he shall have served such minimum term of such sentence."

Id. Thus, the third provision requires that non-FID-card

holders, as to whom the sentencing judge has no discretion to

sentence for less than two and one-half years under the first

provision, are not eligible for any forms of relief until the

non-FID-card holder serves "such minimum term of such sentence"

-- that is, the two-and-one-half-year mandatory minimum term

provided in the first provision of § 10 (m). For FID card

holders, the term imposed by the judge (which, as discussed

supra, need not be one year or two and one-half years) cannot be

reduced by the listed forms of relief to less than the minimum

term imposed by the judge if the term is less than one year or

to less than one year if the minimum term imposed by the judge

is greater than one year.

Of course, I am not writing on a clean slate. Instead, in

Rodriguez, we construed § 10 (m) to set forth two minimum terms,

each applicable to non-FID-card holders: two and one-half years

under the first provision and one year under the third

provision. See Rodriguez, 482 Mass. at 368 (recognizing plain

meaning of phrase "for not less than two and one-half years" as

"calling for a mandatory minimum sentence of two and one-half

years" applicable to non-FID-card holders); id. at 369-370 ("we

have little doubt that both the first and third provisions call

5

for mandatory minimum sentences . . . applicable only to non-

FID-card holders"); id. at 370 n.4 ("we are confronted with what

appear to be two different mandatory minimum sentences and one

maximum sentence" [emphasis added]).

The court concludes that stare decisis now ties our hands.

But see Commonwealth v. Rossetti, 489 Mass. 589, 609-610 (2022)

(concluding that prior case interpreting sentencing statute was

"flawed" and, in part on that basis, declining to be bound by

stare decisis). "Stare decisis -- in English, the idea that

today's [c]ourt should stand by yesterday's decisions -- is 'a

foundation stone of the rule of law.'" Id. at 623 (Wendlandt,

J., dissenting), quoting Kimble v. Marvel Entertainment, LLC,

576 U.S. 446, 455 (2015). Respecting it "'means sticking to

some wrong decisions,' on the justification that 'it is usually

more important that the applicable rule of law be settled than

that it be settled right.'" Rossetti, supra, quoting Kimble,

supra. "It 'promotes the evenhanded, predictable, and

consistent development of legal principles, fosters reliance on

judicial decisions, and contributes to the actual and perceived

integrity of the judicial process.'" Rossetti, supra, quoting

Knick v. Scott, 588 U.S. 180, 222 (2019) (Kagan, J.,

dissenting).

Moreover, the principle of "[s]tare decisis 'carries

enhanced force' in connection with our construction of a

6

statute, where a decision 'effectively become[s] part of the

statutory scheme.'" Rossetti, 489 Mass. at 623 (Wendlandt, J.,

dissenting), quoting Kimble, 576 U.S. at 456. "This is because

the Legislature is free to amend a statute where it concludes

that our construction of its intent is wrong." Theisz v.

Massachusetts Bay Transp. Auth., 495 Mass. 507, 521 (2025).

Indeed, "when it comes to matters of statutory construction

'critics of our ruling can take their objections across the

street, and [the Legislature] can correct any mistake it sees.'"5

Id., quoting Kimble, supra.

But stare decisis means only that we do not upset prior

decisions; it does not bind us to commit further errors in an

attempt not to disturb a prior one. Nothing in our canons of

construction or the rule of stare decisis requires us to double

down on an erroneous construction.

Respectfully, this is what the court does today. It

concludes that the language requiring a sentencing judge to

sentence a non-FID-card holder "for not less than two and one-

5 Since our decision in Rodriguez, the Legislature has

revisited and amended other provisions of § 10 but notably

declined to alter the relevant language in § 10 (m). See

St. 2024, c. 135, §§ 114-127 (effective Oct. 2, 2024); St. 2025,

c. 14, §§ 51, 52 (effective Aug. 5, 2025). See also Chapman,

petitioner, 482 Mass. 293, 306 (2019), quoting Commonwealth v.

Rivera, 445 Mass. 119, 128 (2005) ("The principle of stare

decisis is 'particularly weighty' where, as here, 'the

Legislature has declined to exercise its authority to overturn

the court's interpretation of a statute'").

7

half years" refers to an apparently novel concept in sentencing

-- a "range" of permissible maximum sentences. Specifically,

the court concludes that "for not less than two and one-half

years" provides the lower end of the maximum sentencing "range"

-- in mathematical terms, a mandatory minimum maximum. Of

course, this is inconsistent with the plain language of the

statute that non-FID-card holders "shall be punished by

imprisonment . . . for not less than two and one-half years nor

more than ten years." G. L. c. 269, § 10 (m). If the

Legislature intended the court's construction, one would have

expected it to be clearer, especially in view of the novelty of

the concept of a range of maximum sentences.

Our decision in Commonwealth v. Brown, 431 Mass. 772

(2000), is instructive. There, the defendant was convicted of

home invasion in violation of G. L. c. 265, § 18C, which

provides that an offender "shall be punished by imprisonment in

the [S]tate prison for life or for any term of not less than

twenty years." Brown, supra at 772 n.1, quoting G. L. c. 265,

§ 18C. The defendant argued that the phrase "for any term of

not less than twenty years" referred to the minimum of the

maximum term, a construction we rejected as a "strained

interpretation" that was "in direct conflict with the plain

language of the statute." Brown, supra at 775. Had the

Legislature intended to set a minimum maximum sentence, we

8

reasoned, "it presumably would have provided for it with some

clarity." Id.

Instead, we read the phrase "not less than twenty years" to

refer to the minimum sentence, a construction "supported by the

plain language of the statute," especially when considered in

view of the indeterminate sentencing statute, G. L. c. 279,

§ 24.6 Id. Under the latter statute, a sentencing judge must

set forth a minimum sentence and a maximum sentence -- that is,

one term of years to be served at a minimum, and one term of

years to be served at a maximum. See G. L. c. 279, § 24 ("the

court shall . . . fix a maximum and a minimum term for which

[the person convicted] may be imprisoned"). Thus, in Brown, we

construed "for not less than twenty years" as the minimum

6 The indeterminate sentencing law provides:

"If a convict is sentenced to the state prison . . . the

court shall not fix the term of imprisonment, but shall fix

a maximum and a minimum term for which he may be

imprisoned. The maximum term shall not be longer than the

longest term fixed by law for the punishment of the crime

of which he has [been] convicted, and the minimum term

shall be a term set by the court, except that, where an

alternative sentence to a house of correction is permitted

for the offense, a minimum state prison term may not be

less than one year."

G. L. c. 279, § 24. Today, the court crafts a new concept. It

sets forth a range governing the maximum end. To be sure, this

follows the Rodriguez decision insofar as it set forth the

concept of a range governing the minimum end in order to

harmonize the two provisions of § 10 (m) that the court

determined governed the minimum sentence for non-FID-card

holders.

9

sentence to be served before parole eligibility. Brown, 431

Mass. at 775 n.7. Accord Rossetti, 489 Mass. at 604 ("By its

plain language . . . 'not less than five years' [in G. L. c. 6,

§ 178H (a) (2),] means precisely what it appears to say" such

that "if a judge chooses to sentence a defendant to

incarceration . . . , the minimum term of such sentence must be

at least five years").

In reaching the opposite conclusion here, the court leans

on the principle that the phrase "for not less than two and one-

half years" needs to mean something; but the principle of

statutory construction that counsels against superfluity does

not authorize us to rewrite the statute to require a maximum

term with a minimum maximum of no less than two and one-half

years and a maximum maximum of no more than ten years. The

canon against surplusage is a tool used to decipher legislative

intent; it is not absolute, "[a]nd it certainly does not require

us to favor 'an unusual meaning that will avoid surplusage' over

a more natural one." Stanley v. Sanford, 606 U.S. 46, 56

(2025), quoting A. Scalia & B.A. Garner, Reading Law: The

Interpretation of Legal Texts 176 (2012).

In any event, the court's decision rests not on the canon

of construction against rendering superfluous any words of the

statute; instead, the decision is driven by a laudable attempt

10

to reconcile our decision in Rodriguez with the statutory text.7

It construes the language "shall be punished by imprisonment

. . . for not less than two and one-half years nor more than ten

years" as setting a range of permissible maximum sentences,

effectively rewriting the statute to read "shall be punished

. . . to a maximum range for not less than two and one-half

years nor more than ten years." But these words, or similar

ones, are not in the statute. And we are not free to rewrite

statutes, adding text to the words written by the Legislature,

and perforce, we are not free to do so to harmonize our prior

case law with the statutory text. See Commonwealth v. Newberry,

483 Mass. 186, 195 (2019) ("we may not rewrite the . . . statute

to contain language the Legislature did not see fit to include,"

and "[c]ourts may not read into a statute a provision that the

Legislature did not enact, nor add words that the Legislature

had an option to, but chose not to include" [quotation and

citation omitted]); City Elec. Supply Co. v. Arch Ins. Co., 481

Mass. 784, 789 (2019) ("We do not read into the statute a

provision which the Legislature did not see fit to put there,

7 As we recognized in Rodriguez, 482 Mass. at 370-371,

"[h]armonizing the provisions [of § 10 (m)] in a manner that

does not make any of the statutory language superfluous, that

sees the statute as a whole without internal contradiction, and

that renders the legislation consistent with common sense, all

as the Legislature intended, is quite the job with this

statute."

11

whether the omission came from inadvertence or of set purpose"

[citation omitted]). See also 2A N.J. Singer & J.D. Shambie

Singer, Statutes and Statutory Construction § 47:38, at 541-542

(7th ed. 2021 & Nov. 2025 update) ("Courts do not supply words

to a statute where . . . an omission is not plainly indicated").

Nor does "logic" cure this infirmity in the court's reasoning.

Further, even if the court's "mandatory minimum maximum"

construction were plausible (and it is stretching the English

language to say that it is), the rule of lenity would require we

reject such a construction. See 2A N.J. Singer & J.D. Shambie

Singer, supra at § 47:38, at 543 ("Courts are less likely to

supply missing words or sentences to clarify ambiguous language

in a penal statute, since penal statutes are strictly construed

in favor of defendants"). "It is a well-established proposition

that criminal statutes are to be construed narrowly" and "that

'[w]e must resolve in favor of criminal defendants any

reasonable doubt as to [a] statute's meaning'" (citation

omitted). Commonwealth v. Pagan, 445 Mass. 161, 167 (2005).

The ambiguity and difficulty in construing this statute is well

documented. See Rodriguez, 482 Mass. at 368 ("The Superior

Court judge who reported this case aptly characterized this

imperfect statute as 'vexing'"); Commonwealth v. Lindsey, 72

Mass. App. Ct. 485, 493 (2008), cert. denied, 556 U.S. 1183

(2009) ("General Laws c. 269, [§ 10 (m)], is a confusing statute

12

which has caused courts some consternation and we appreciate the

trial judge's difficulty"); Commonwealth v. Semegen, 72 Mass.

App. Ct. 478, 480 & n.3 (2008) ("Without question, this statute

is no grammatical paragon"; "[w]e would be remiss if we failed

to acknowledge the degree of difficulty presented to trial

judges when called upon to interpret this statute").

The court concludes that the rule of lenity does not apply

because no other construction of "for not less than two and one-

half years" is plausible in view of our decision in Rodriguez.

But we acknowledged in Rodriguez that the plain and ordinary

meaning of "for not less than two and one-half years" referred

to the minimum term of incarceration under the indeterminate

sentencing law. See Rodriguez, 482 Mass. at 368 ("our case law

would permit us to view the sentencing range of 'not less than

two and one-half years nor more than ten years,' as calling for

a mandatory minimum sentence of two and one-half years

applicable to 'any person' other than a valid FID card holder"

[citation omitted; emphasis added]). We reasoned that this

clear meaning of the phrase was rendered ambiguous by the third

provision setting a one-year minimum sentence to be served. Id.

at 368-369. We did not suggest that the plain meaning of the

phrase "for not less than two and one-half years" concerned the

maximum term at all, let alone set the bottom end of the

permissible maximum range. Our resolution of the ambiguity

13

between the first and third provisions of § 10 (m) in Rodriguez

does not counsel in favor of the court's present construction,

nor is it a reason to deviate from the rule of lenity. In my

view, the phrase "for not less than two and one-half years" as

used in § 10 (m) does not relate to the upper end of the

sentencing range at all, much less establish a mandatory minimum

maximum. Accordingly, I dissent.