Commonwealth v. Semegen

Green, J.

(concurring). I agree with the result reached by the court, as well as the reasoning of the court’s opinion. I write separately to observe that the sentencing provisions of the statute at issue in the present case suffer from much the same incoherence as formerly afflicted the home invasion statute, G. L. c. 265, *483 § 18C, prior to its amendment by St. 2004, c. 150, § 17. See Commonwealth v. Brown, 431 Mass. 772, 780-781 (2000). In particular, though the third sentence of G. L. c. 269, § 10(m), prohibits reduction of the two and one-half year minimum sentence prescribed by the first sentence of that section, under applicable good time and parole procedures no such reduction would be possible even in the absence of such a prohibition. Our interpretation of the statute nonetheless to require a mandatory minimum sentence of two and one-half years accordingly risks rendering the provisions of the third sentence meaningless or superfluous, in contravention of the familiar canon of construction acknowledged by the majority. See ante at 480.

The portion of G. L. c. 265, § 18C, added by St. 1998, c. 180, § 57, and described as “lacking in coherence” by the Supreme Judicial Court in Commonwealth v. Brown, supra at 780 , was not directly at issue in that case. Three years later, in Commonwealth v. Berte, 57 Mass. App. Ct. 29 (2003), when forced to confront the provision directly, we construed the language to authorize a judge to impose a sentence of less than twenty years on a person convicted of home invasion while armed with a firearm, notwithstanding that the statute mandated a minimum sentence of twenty years for home invasion armed with a weapon other than a firearm, basing that conclusion on the principle of lenity. See id. at 33 , quoting from Commonwealth v. Marrone, 387 Mass. 702, 705 (1982).

Despite these tensions, I join with the majority in the present case. Commonwealth v. Berte, supra, is distinguishable from the present case in that the phrasing of the portion of the home invasion statute added by the 1998 amendment did not impose a mandatory minimum. 1 In any event, “[wjhen rules of statutory construction produce conflicting results, we must discern, as closely as possible, what the Legislature intended. See Helvering v. Stockholms Enskilda Bank, 293 U.S. 84, 89 (1934) (canons of statutory construction apply to ascertain meaning of *484 statute, but if one canon does not effectuate purpose of statute as whole, it yields to ‘the wider view in order that the will of the legislature shall not fail’); Commonwealth v. Dale D., 431 Mass. 757, 760-761 (2000), and cases cited (‘We construe statutes in accordance with the Legislature’s intent and in order to effectuate the purpose of their framers’).” Commonwealth v. Russ R., 433 Mass. 515, 521 (2001). I am satisfied that (as observed by the majority) the Legislature did not intend to impose a lesser sentence on persons possessing a large capacity weapon than on those possessing an ordinary firearm, see ante at 482, and that any internal conflict in the phrasing of § 10(m) is the product of inadvertence rather than intent. 2

Unlike the sentencing language contained in the first sentence of § 10(m), the first sentence of the 1998 amendment to the home invasion statute purported to impose a “single-term” sentence of twenty years, language ordinarily interpreted by reference to the indeterminate sentencing statute, G. L. c. 279, § 24, to set the maximum sentence rather than the minimum. See Commonwealth v. Lightfoot, 391 Mass. 718 , 718 n.1, 721 (1984).

I note that, apparently in response to Commonwealth v. Berte, supra, the Legislature enacted St. 2004, c. 150, § 17, which deleted the portions of G. L. c. 265, §' 18C, previously described by the Supreme Judicial Court as “nonsensical,” Commonwealth v. Brown, supra at 780 n.12, thereby suggesting an intent other than the result produced by the Berte opinion.