Commonwealth v. Mcneil ( 2023 )

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SJC-13379
COMMONWEALTH vs. MICHAEL J. MCNEIL.
Essex. April 3, 2023. - June 28, 2023.
Present: Budd, C.J., Gaziano, Lowy, Kafker, Wendlandt,
& Georges, JJ.
Shoplifting. Habitual Offender. Evidence, Other offense,
Guilty plea. Practice, Criminal, Plea, Finding of guilty.
Statute, Construction. Words, "Offense."
Complaint received and sworn to in the Lynn Division of the
District Court Department on June 29, 2021.
After transfer to the Salem Division of the District Court
Department, a motion to dismiss was heard by Randy S. Chapman,
J., a question of law was reported by him to the Appeals Court,
and a conditional plea was accepted by him.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Valerie A. DePalma for the defendant.
Marina Moriarty, Assistant District Attorney, for the
Commonwealth.
Michelle May Peterson, pro se, amicus curiae, submitted a
brief.
2
LOWY, J. General Laws c. 266, § 30A (§ 30A), provides that
first and second offense shoplifting is punishable by fine only.
Third offense shoplifting, however, is punishable by fine or
imprisonment. G. L. c. 266, § 30A. The issue we address in
this case is whether a "guilty-filed" disposition constitutes a
predicate "offense" under § 30A. We conclude that it does.1
Background. The defendant, Michael J. Mcneil, was charged
in the District Court with shoplifting, third offense, in
violation of § 30A. The disposition in one of the predicate
offenses on which the Commonwealth relied in support of the
third offense portion of the charge was a guilty-filed
disposition2 after the defendant pleaded guilty.
The defendant moved to dismiss so much of the complaint
that alleged a third offense, asserting that his previous case,
which was guilty-filed, cannot serve as a predicate offense.
Thereafter, pursuant to Mass. R. Crim. P. 34, as amended, 422
Mass. 1501 (2004), the District Court judge reported to the
Appeals Court the question whether a guilty-filed disposition
1 We acknowledge the amicus brief submitted by Michelle May
Peterson.
2 As discussed in further detail infra, a guilty-filed
disposition occurs where a judge suspends a defendant's sentence
indefinitely only after a defendant's guilt has been
adjudicated, by either a guilty verdict or guilty plea, and both
the Commonwealth and the defendant have agreed to the
disposition. See, e.g., Commonwealth v. Simmons, 448 Mass. 687,
693-694 (2007).
3
constitutes a predicate offense under § 30A.3 Subsequently, the
defendant entered a conditional plea to shoplifting, third
offense, pursuant to Mass. R. Crim. P. 12 (b) (6), as appearing
in 482 Mass. 1501 (2019), conditioned on the outcome of the
reported question. The defendant then filed a notice of appeal
from his guilty plea, which was consolidated with the reported
question, and we transferred the case sua sponte from the
Appeals Court.4
Discussion. When construing a statute, "[o]ur fundamental
aim is to discern and effectuate the intent of the Legislature"
(quotation and citation omitted). Velazquez v. Commonwealth,
491 Mass. 279, 281 (2023). "To that end, '[t]he language of the
statute is the primary source of insight into the intent of the
Legislature'" (citation omitted). Id. "Therefore, where the
statute is clear and unambiguous, our inquiry into the
Legislature's intent need go no further than the statute's plain
3 The question reported by the judge stated: "Where a
defendant is charged with third offense shoplifting, does a
'guilty-filed' disposition on a shoplifting charge constitute a
conviction which may be used as a predicate offense?"
4 Rule 12 (b) (6) of the Massachusetts Rules of Criminal
Procedure allows a defendant to tender a plea "while reserving
the right to appeal any ruling or rulings that would, if
reversed, render the Commonwealth's case not viable." Here,
there was no ruling to appeal, as the judge had reported the
determinative issue without otherwise acting on the defendant's
motion to dismiss. We confine our opinion and the disposition
to the reported question.
4
and ordinary meaning" (citation omitted). Id. "A fundamental
tenet of statutory interpretation is that statutory language
should be given effect consistent with its plain meaning and in
light of the aim of the Legislature unless to do so would
achieve an illogical result." Sullivan v. Brookline, 435 Mass.
353, 360 (2001).
The shoplifting statute penalizes "[a]ny person who
intentionally takes possession of . . . any merchandise
displayed, held, stored or offered for sale by any store or
other retail mercantile establishment with the intention of
depriving the merchant of [its] possession . . . without paying
to the merchant the value thereof." G. L. c. 266, § 30A. Where
the value of the stolen goods is less than $250, the statute
provides for imprisonment only "for a third or subsequent
offense." Id. Because "offense" is not defined in § 30A, we
are charged with interpreting its meaning as guided by the
principles of statutory interpretation discussed supra.
"The generally recognized purpose of . . . graduated
sentencing laws [such as § 30A] is to punish offenses more
severely when the defendant has exhibited an unwillingness to
reform his miscreant ways and to conform his life according to
the law" (citation omitted). Commonwealth v. Resende, 474 Mass.
455, 467-468 (2016). "[A] second or subsequent offense is often
regarded as more serious because it portends greater future
5
danger and therefore warrants an increased sentence for purposes
of deterrence and incapacitation" (citation omitted).
Commonwealth v. Baez, 480 Mass. 328, 332 (2018). "Particularly
salient here is the implicit link between enhanced punishment
and behavioral reform, and the notion that the former should
correspondingly increase along with a defendant's [forgone]
opportunities for the latter" (citation omitted). Resende,
supra at 467.
While we have previously explained that "offense" has
different meanings in different contexts, we have noted, with
specific reference to § 30A, that "sentencing statutes tend to
treat the word 'offense' as synonymous with 'conviction'[5] or
'adjudication'" (emphasis added). Wallace W. v. Commonwealth,
5 "The ordinary legal meaning of 'conviction' . . . is the
confession of the accused in open court, or the verdict returned
against him by the jury, which ascertains and publishes the fact
of his guilt; while 'judgment' or 'sentence' is the appropriate
word to denote the action of the court before which the trial is
had, declaring the consequences to the convict of the fact thus
ascertained." Commonwealth v. LeRoy, 376 Mass. 243, 245 n.1
(1978), quoting Commonwealth v. Lockwood, 109 Mass. 323, 325
(1872). The Court in Lockwood did recognize, however, that the
word conviction has sometimes been "used in a more comprehensive
sense, including the judgment of the court upon the verdict or
confession of guilt." Lockwood, supra at 329. The defendant
argues that we should interpret the term offense in § 30A as
synonymous with the latter definition of conviction and as a
result a guilty-filed disposition should not constitute an
offense. For the reasons discussed infra, we conclude that a
guilty-filed disposition constitutes an offense under § 30A by
virtue of the legislative intent behind graduated sentencing
statutes and the adjudication of the defendant's guilt that is
incumbent in a guilty-filed disposition.
6
482 Mass. 789, 796 (2019). Consistent with the legislative
intent behind such statutes, we see no reason to reach a
different conclusion here.
There is a long-standing practice in this Commonwealth of
entering a guilty-filed disposition in certain criminal matters.
See Commonwealth v. Simmons, 448 Mass. 687, 693 (2007) ("The
earliest written countenance of the practice in Massachusetts is
found in an 1831 decision of the old Municipal Court of
Boston"). A guilty-filed disposition allows a judge discretion
to suspend a defendant's sentence indefinitely so long as the
defendant's factual guilt has been determined, by either a
guilty verdict or guilty plea, and both the defendant and the
Commonwealth consent to the guilty-filed disposition. Id. at
693-694, quoting Commonwealth v. Dowdican's Bail, 115 Mass. 133,
136 (1874).6 See United States v. Curet, 670 F.3d 296, 302-303
6 The guilty-filed practice was described in this court's
seminal decision endorsing the practice as follows:
"It has long been a common practice in this Commonwealth,
after verdict of guilty in a criminal case, when the court
is satisfied that, by reason of extenuating circumstances,
or of the pendency of a question of law in a like case
before a higher court, or other sufficient cause, public
justice does not require an immediate sentence, to order,
with the consent of the defendant and of the attorney for
the Commonwealth, and upon such terms as the court in its
discretion may impose, that the indictment be laid on file
. . . ."
Dowdican's Bail, 115 Mass. at 136. See Simmons, 448 Mass. at
693-694. This long-standing common law practice has been
7
(1st Cir.), cert. denied, 566 U.S. 1041 (2012) ("The effect of a
guilty-filed disposition in Massachusetts is to suspend
sentencing of the defendant; such a disposition occurs after
either a verdict or plea establishing the defendant's guilt"
[emphasis added]). The guilty-filed disposition developed "[a]s
a predecessor to modern probation" and "allow[s] the would-be
sentencing judge discretion in circumstances adjudged to be
unduly harsh." Simmons, supra at 693.
We have previously stated that "a judgment of conviction
does not enter unless sentence is imposed" (emphasis added), and
placing a case "on file" means that a sentence is not
immediately imposed; rather, it is suspended indefinitely.
Simmons, 448 Mass. at 688 n.2. However, when there is a guilty-
filed disposition, the judge "retains the ability, at any time,
to remove the indictment from the file" and to sentence the
defendant (emphasis added). Id. at 696. See Commonwealth v.
Bianco, 390 Mass. 254, 259 (1983) ("As we have already
indicated, it is always within the power of the [judge] to
remove an indictment from the file and to impose a sentence
thereon"). The reason that the judge has this authority is that
the defendant's guilt has been formally adjudicated by either an
acknowledged by and "enjoys the support of the Legislature."
Id. at 694 (inferring support where "Legislature has not merely
acquiesced [to guilty-filed practice], but has delineated
expressly crimes where the case may not be placed on file").
8
accepted guilty plea or a guilty verdict at trial. See, e.g.,
Simmons, supra at 693-694 (guilty-filed disposition enters after
guilty verdict); MacDonnel v. Commonwealth, 353 Mass. 277, 278
(1967) ("he pleaded guilty and the complaint was placed on
file"). In short, the entry of a guilty-filed disposition
necessarily entails an adjudication of the defendant's guilt.7
Thus, "[t]he point of sentence enhancement is to punish
more severely offenders who have persevered in criminal
activity" (citation omitted), Resende, 474 Mass. at 467, and the
purpose of a guilty-filed disposition is to suspend sentencing,
"not to prevent a guilty finding from entering" (emphasis
added), Commonwealth v. Powell, 453 Mass. 320, 329 (2009). See
Wallace W., 482 Mass. at 796-797; Simmons, 448 Mass. at 692-700.
While no sentence is imposed with the entry of a guilty-filed
disposition, there is a definitive adjudication of guilt, and
therefore, in keeping with the statutory purpose of increased
penalties for those who are repeatedly adjudged guilty of
7 As illustrated in Commonwealth v. Powell, 453 Mass. 320,
328-330 (2009), a factual determination of the defendant's guilt
is essential to a guilty-filed disposition. The suspension of a
sentence without such a determination necessarily constitutes a
continuance without a finding. Id. See Commonwealth v.
Millican, 449 Mass. 298, 304 (2007) ("A continuance without a
finding requires either a plea of guilty or an admission to
sufficient facts to warrant a finding of guilty").
9
criminal wrongdoing, it is clear that a guilty filed disposition
constitutes an offense under § 30A.8 See Resende, supra.Conclusion. We answer the reported question in the
affirmative and hold that a guilty-filed disposition constitutes
an offense under G. L. c. 266, § 30A.
So ordered.
8 Our conclusion that a guilty-filed disposition constitutes
a predicate offense due to the formal adjudication of a
defendant's guilt is consistent with how the United States Court
of Appeals for the First Circuit has considered the
applicability of a guilty-filed disposition in similar contexts.
See, e.g., Curet, 670 F.3d at 307-308 (defendant's prior guilty-
filed disposition was valid predicate for career offender
purposes because it involved prior adjudication of defendant's
guilt).