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Massachusetts Supreme Court Announces ‘Habitual Offender’ Statute Allows for Sentence of Probation Only

Loaded on March 15, 2021 by Dale Chappell published in Criminal Legal News April, 2021, page 30

Filed under: U.S. Sentencing Guidelines, Sentencing Goals/Purposes/Practices, Sentence of Probation. Location: Massachusetts.

by Dale Chappell

Because the law ambiguously provides that a court must impose the “maximum term” for a prison sentence for someone convicted as a “habitual criminal,” the Massachusetts Supreme Judicial Court, applying the rule of lenity, held that the lack of any language excluding probation thus allows a court to impose only probation as the sentence.

The case came before the Court after Ricardo Montarvo was convicted of a felony for at least the third time under the state’s “three strikes” law. He argued that the law allowed for a probation-only sentence, but the trial court disagreed. Under G. L. c. 279 § 25(a), anyone twice convicted of a felony and sentenced to at least three years in any state or federal prison, “shall be punished by imprisonment ... for the maximum term provided by law.” Montarvo met these conditions and was sentenced as a “habitual criminal” to 20 years in prison.

On appeal, the Court recognized that under § 25(a), “probation appears to be unavailable” but agreed with Montarvo that probation was nevertheless a possible sentence – albeit on different grounds. First, the Court determined that the language of § 25(a) was ambiguous. Comparing § 25(a) to the habitual offender provision under § 25(b), the Court noted that § 25(b) expressly includes a bar on imposing probation: “Nor shall such person so sentenced [as a habitual offender] be eligible for probation,” the subsection states. Other than that, §§ 25(a) and (b) are nearly identical.

The extra language is not unimportant, the Court explained. “When the legislature includes a phrase in one subsection of a statute but not in another, this invites the negative implication that the phrase was purposefully excluded,” the Court said. It also pointed out that prior convictions under § 25(b)’s harsher penalty requires them to be violent crimes, separate offenses, and a judge must warn a defendant of the future risk of habitual penalties when convicted of those prior offenses. This is not the case for § 25(a). The missing language regarding probation in § 25(a), yet requiring the maximum prison term, leaves the subsection “ambiguous,” the Court concluded.

Next, the Court had to consider the legislative intent behind the ambiguous part. Prior to 2012, § 25 was just one section, and the Court had concluded it barred probation, even though it didn’t say so. Since then, lawmakers divided the statute and barred probation only under § 25(b). “Although the Legislature had an opportunity to apply the prohibition on probation to the entirety of G. L. § 279, § 25, the Legislature deliberately chose to limit that prohibition to § 25(b).”

Applying the “rule of lenity,” where an ambiguous statute must be interpreted to give the defendant “the benefit of any rational doubt,” the Court instructed, § 25(a) must be read to provide sentencing judges with discretion to impose probation. While this “may appear contrary to common sense,” the Court admitted, lawmakers have the ability to change § 25(a) to forbid probation, if they want to.

Accordingly, the Court vacated Montarvo’s sentence and remanded for resentencing without the three strikes penalty. See: Commonwealth v. Montarvo, 2020 Mass. LEXIS 790 (2020).

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