Clerk: SJC-12905 Commonwealth free Ricardo Montalvo.
-: Thank you
Ms. McGillion.
-: Good morning.
May I please the court and Ines McGillion here
for Mr.Montalvo
The sole issue on this appeal
is whether the trial judge in this case
had discretion to sentence
Mr. Montalvo to straight probation
under section 25A of the habitual offender statute.
The habitual offender statute was significantly revised
in 2012
to provide for gradation
and its recidivous sentencing scheme.
And it created more serious penalties
for violent re-offending is under section 25B.
And at the same time provided significant procedural
and judicial review protections for them.
Mr. Montalvo is asking this court
to rule that the various means of sentence mitigation
expressly revoked for 25B offenders
in particular the discretion to impose
straight probation remain available
for ordinary re-offenders under section 25A
as this court stated in Commonwealth versus the Pata.
When the legislature
intends to bar probation
it knows how to say so explicitly
and indeed here for 25A
it would need to revoke probation
or bar probation explicitly
to expressly supersede the existing probation statute.
That's section 87 of chapter 276
if 25A is unclear in any way
then the rule of remedy
requires that it'd be read to permit
a probationary sentence.
The 2012 amendments created two categories
of recidivist offenders
and under section 25B
it enumerated a large number of violent
felonies that qualified for
a more severe sentencing under section 25B.
Section 25A is now a general recidivous provision
for general re-offenders guilty of any three felonies
carrying sentences of three years or more.
25B makes violent re-offenders
ineligible for probation
parole, work release, or furlough or good time credit.
-: Right?
Counsel may interrupt you for a minute?
There are, there were any way
several proposed amendments
that did not pass
are they were from 2019.
And those are once in the house
(murmurs)
there were several of them and
and they would have given
one of them would have given parole at 35 years
if there'd been a life sentence
but another one would said that 25B
should be applied to 25A offenders.
Should we take any
should we read anything in the fact that
this was not passed?
Or does it help your argument?
Does it hurt your argument?
-: Well, I know just as a matter of statutory interpretation
bills that don't pass
it's very difficult to read anything
into them about the intent of a prior legislature.
-: Right. - So having not studied these proposed amendments
or any of the reasons for their rejection
I'm not really prepared to answer that question until...
-: Ms. McGillion
could you elaborate
with on your on your
16 now letter and Commonwealth
(murmurs)
-: Yes. Well, my interest
my reading of that case is that
this court has empowered the appeals court
to conduct 33E review
of 25B sentences.
And it has also provided guidance to the appeals court
on how to conduct that review.
And among the powers
under 33E review the appeals court can
reduce 25B sentenced
to a 25A sentence
or a remand for re-sentencing under 25A.
And implicit in that decision and in footnote 24
this court actually suggests that
the list of expressly revoked sentence mitigation measures
are available to offender sentenced under 25A.
(murmurs)
-: An offender sentence to life
-: Life
(cross talking)
My understanding is for life for
I mean, my reading of Billingsley is that
a 33E review is available for any 25B sentence
regardless of the length of the sentence.
-: Can I ask
I have one sort of concern.
I see your argument that 25B is express
and 25A isn't
but the result you're producing is that
25A which is pretty draconian
will now be converted into a probation statute.
Isn't it?
You're basically, you know
that's the alternative, right?
You've gotta give that sentence
you're given it
so it turns what the legislature
wanted to be a big punishment into probation.
It seems like it just seems odd to me.
I'm not saying they're wrong
but it just seems strange.
The 25A becomes basically a probation
probation under your interpretation.
-: Well, your know
I don't agree that it turns 25A into a probation statute.
It certainly preserves probation
as one of the options available to a judge and what...
-: But it means
It turns the judge has
even gives a huge hit or probation.
There's nothing in between, right?
Is that what...
-: It provides for calibrated justice.
And the interesting thing about your question
is that it presupposes that there is some kind of
normative standard
for what a recidivous statute is meant to accomplish.
And there is no normative standard.
-: Well that, let me just put
and may be that I don't understand it
but basically it ends by saying
for such
(murmurs)
and for the maximum term provide them by law, right?
So the judge has a choice.
It doesn't, it's not a calibrated choice.
It's either you give the full term
or you give probation for the full term, right?
That's the only choice.
-: Correct.
-: That seems less than calibrated.
It seems kind of like
you're either
it seems you're either giving a big hit or no hit, you know
it's just a strange dichotomy, isn't it?
-: It is.
And judge, you may be advocating for the reintroduction
of split sentences
but there's an existing statute
that has expressly revoked split sentences.
And yes
here it is an anomaly that
a defendant could be sentenced
to either the max or probation.
But it's very clear from this statute
that, first of all just to respond to your point about
is this weird or not.
A recidivous statute only accomplishes what the
legislature says It accomplishes.
There is no moral or normative standard
for what it's supposed to do.
There is no standard for recidivous statutes
or eliminating all sentencing discretion
and mandating incarceration in every case.
These statutes were generally enacted after
the first world war to respond to crime increases
and their iterations vary from jurisdiction to jurisdiction.
Several jurisdictions have gradations
in recidivous statutes that
account for different levels of culpability
and the availability of probation here
is still punitive
because a man or a woman who violates probation
is nevertheless subject to the statutory maximum.
Now it may be that under
there may be greater procedural protections
for a 25B defendant
than a 25A defendant after Billingsley.
But it's an important tool that we need to keep
in judges arsenals
because this statute was enacted with the backdrop
of a probation
existing probation statute
that in every case permits a probationary sentence
and every penal statute in Massachusetts
contains language saying shall be imposed
shall be imprisoned for X term.
No case has ever interpreted that language
to mean that probation is unavailable.
Indeed whenever the legislature intends
to make probation unavailable
it says so explicitly.
And it hasn't done so here.
So it may, it may be that a judge is faced
with probation versus the max.
And if that's weird the legislature
is free to amend the statute.
-: Well, I'm just gonna throw you a lifeboat for a moment
that can be more than one indictment
like there was here.
-: Right. - In year 20 year
or probation and impose probation
and imposed a 10 year mandatory minimum.
-: Correct.
And particularly because
the recipient statute gives
the prosecution so much power in charging
to defendant's exposure here what
Mr. Montalvo is likely to argue on remand is
that the judge has the discretion
to impose a probationary sentence
on the 20 year count
and sentenced him to 10 years
and his probation could be on and after the to
10 years served.
And by all indications
the sentencing judge
felt that he had no discretion and even apologize
to Mr. Montalvo.
So at minimum
the availability re-probation is a calibration tool
that's still available to judges.
And if the legislature wishes to change that
they can amend the statute.
That said I should also point out that
this statute actually requires
plea colloquy warnings to 25B defendants.
And it would make absolutely no sense
if that entire list of
sentence mitigation measures were
unavailable to 25A defendants.
And my argument is basically that the statute has made them
of unavailable to 25B defendants.
And those that ineligibility is so serious
that it requires plea colloquy warnings in every case.
And just to be clear
Mr. Montalvo is not arguing that
he should be entitled to argue for a suspended sentence.
The option of suspended sentences was removed
by the truth in sentencing act in 1993.
And this statute is in harmony with that
prior existing statute.
But in essence
Mr. Montalvo asked to have his sentences vacated
and reminded for re-sentencing under 25A
with a clear statement by this court not
a probation straight probation remains an option
under 25A.
-: Any further questions
Ms.Mikillya.
-: No, thank you.
-: Thank you, counsel.
-: Thank you.
-: We'll hear from Ms. Woodard.
-: Morning and may it
please the court
this is assistant district attorney Shayna Woodard
on behalf of the Commonwealth.
Your Honour
is in this case
the sentencing judge correctly concluded that
he did not have the discretion to sentence the defendant
to anything other than the maximum term allowed by law
which was the 20 year sentence.
The statutory language in 25A
specifically states
whoever is convicted of a felony
and has previously twice convicted and sentenced
to state prison
or a state correctional facility
or a federal correction facility
for a term of not less than three years
on two prior occasions shall be punished
by imprisonment in state prison
for such felony for the maximum term provided by law.
The Commonwealth would argue
that this is not ambiguous at all
and that the legislature has explicitly stated that
probation is not on the table by saying that
the defendants if they're convicted under the statute
are that they shall be punished by the maximum...
-: Well, but council
the council shall be punished by the
so is the sentence could would be imposed
and then suspended and probation imposed.
It's still imposed, isn't it?
It's still a mandatory
this is just this is a sentence
but they're all the other sentencing options
would go on with it.
Wouldn't it?
-: Well, there is no possibility of a
suspended sentence on the
on what the defendant was convicted of
because he was convicted of armed assault
with intent to murder
which does not have the possibility
of a house of correction sentence if only...
-: But you're going back to a different sentence correct?
I mean a different statute
at that point.
So that's the outside of this one.
-: That's the underlying statute that he was convicted of
the habitual criminal statute
is a sentencing enhancement.
And the purpose of the enhancement is to punish
more severely people who continue to
be convicted of crimes and sentenced to state.
-: Why do you think the legislature made a distinction
between 25A and 25B crimes?
-: I believe that the purpose
of the amendments in 2012 was to
punish even more severely
and take away the possibility
of parole or the ability to get good time
for people who were convicted
of the enumerated offenses in section 25 plea.
-: So they're not convicted of the enumerated offenses
then what's the point of 25B?
I mean, it wouldn't apply to them.
Right?
-: I don't understand the question.
I'm sorry. - So if they're not convicted of
one of the enumerated offenses in 25B
how does the no parole
no probation, no suspended sentence, no whatever.
How does that apply to those convicted of 25A?
They haven't been convicted of the crimes under 25B?
If that's the point of the legislation?
-: So I think it's clear
both the legislative intent and also
the cases that this court has previously decided
that section 25A is essentially the same
as the prior iteration of the habitual criminal statue
with the exception that it allows for
suspended sentences and federal sentences
and are all of the prior assumptions
about the prior iteration of 25 of the original
the earlier version of the habitual criminal statute
still stands.
And that this court specifically stated that
that means that they shall be impose the maximum sentence
and that they do have the possibility
of parole under section 25A.
-: Okay.
I guess ultimately, do you agree that if we look at just
if we forgot everything else and just read the statute
as if that's the only thing we have
would you agree with your sister
that if we look at the plain context
of the plain language of the statute
that the defendant would be correct
in the way we should read it?
If we just look at the language?
-: I think that the plain language of the statute is clear
that it's the maximum penalty.
I don't think that there is the possibility
of probation given the way that the statute is written
and the purpose of the statute.
-: But why wouldn't the crime had been put
in section 25B then?
-: I don't understand why...
-: why bother with 25B
if 25A has no meaning?
-: I would suggest that 25A does have a meaning
25B the purpose is to
to punish them even more severely
as there is not the possibility of parole even
which I would suggest is under a different statute.
And it's clear from the 2012 amendments that
the parole statute was amended at the same time
in 2012 to reflect that subsection 25B
does not allow for the possibility of parole.
-: Do you think that there's any value
or information we can glean
from looking at the proposed amendments to the statute?
-: I would suggest the same as my sister
has stated that given the
it hasn't been imposed and I'm not sure exactly what
the reasons for the legislature not voting to amend that
that shouldn't really be looked at.
It should just be looked at the prior cases of this court
and the legislative intent
and the language of the statute
as it's written.
-: I'm confused now.
So
-: I've done my job then judge Kafker
(laughs)
-: Not by you yet.
So the statute 25B has this critical sentence
no sentence imposed under this subsection
shall be reduced or suspended
nor shall such persons so sentence be eligible for probation
parole, work release or furlough or good time credit
25A doesn't have that language, right?
-: That's correct.
-: So does that mean
under 25A you can do all these things or not?
I'm confused.
And if you can't, why
what is the significance of its absence?
I'm just trying to understand that.
-: So what the Commonwealth would suggest in this
is that essentially what
defense counsel is trying to argue is that
because it's not there
and it is explicitly in subsection B
then that means that the legislature intended
for probation and all of those other possibilities
to be allowed for an A
and what the Commonwealth would argue
is that essentially that's
making an assumption based on the
maximum negative implication.
-: Well, we got to make sense of
these are two provisions right next to each other.
We've got to make sense of that language.
So help make sense of that
you can't just ignore that, that language exists.
She's gotta be right
unless you can explain some reason
why they treated them differently
that I don't understand yet.
So tell me why?
-: So I believe it's because
the legislature was essentially
key subsection A is the same as it was previously
and that all of the prior implications
of that statute which included
that there wasn't the possibility of a
suspended sentence of probation
but there is the possibility of parole stands
and that they explicitly added additional limitations on it
for specific crimes that are enumerated in subsection B.
-: So they just, they said, just added
even though all of this is covered by 25A in your view.
Absolutely all of this is prohibited
they decide to say it again for no reason.
What is this add?
This language has got to add something
for these particular crimes
or it doesn't make any sense, right?
-: So the Commonwealth position is that
essentially because subsection B, C and D are new
they're entirely new
there has been no legislation or case law
on those particular issues
because they were added in 2012
they had to be as explicit as possible
in those subsections
Whereas...
-: Why?
'Cause it's all
in your view, it's all covered
under we, you could have the same
for all of these things
25A, right?
Does the job for you, right?
You don't need 25B at all
according to you, right?
-: No, because under subsection A
an individual is
does have the possibility of parole.
There would be the possibility
that they could get good time
if they weren't sentenced to a life sentence.
So there are a number of differences after...
(cross talking)
-: So the duplicative language is the word probation?
That's just the superfluous language
the rest of it serves the purpose?
-: I would suggest that is correct
but I would also suggest that
that Your Honour to take a look at the
legislative intent
but also the prior cases that this court has decided
particularly where I believe it was in Garvey.
This court had stated that the legislator
because they did not further amend subsection 25A
there is no indication that it attended to make
material changes to the rest of 25A
and that to the extent that 25B includes
more specific languages about distinct occurrences
this does not negate the courts
and the appeals courts prior assumptions about
subsection 25A
in this court has repeatedly stated that
under subsection
under the habitual criminal statute
that the defendants aren't entitled to probation
that they shall be convicted
and sentenced to the maximum terms by law.
-: Do you oh, I'm sorry.
Did Shayna answer your question?
Just as
can you address if you can
I know that it came in as a 60 now letter this morning
but can you address Billingsley
and how that might apply to this?
-: Absolutely.
In Billingsley
the court wasn't addressing this particular issue
It was regarding 33E review under subsection B
and whether or not the appeals court
had the ability to to conduct that review.
The footnote that is addressed.
I believe it's putting out 24 is clearly dicta.
It was not an issue that was fully briefed
or argued before this court.
And the Commonwealth would suggest that
given this court's prior decisions
that the court shouldn't consider that the
consider the footnote in that particular case
again, because that wasn't an issue
that was raised on appeal.
-: Ms Woodard, it isn't it possible
that section A just
may not do what the legislature
had hoped it would do?
And, you know
they may fix it if they want to?
-: I suppose that
the court could find that
I would suggest that in council had argued
as a Pata of pretty heavily and
in its initial brief to the court.
And I believe that the court essentially
came to that conclusion in support of
what the Commonwealth would suggest is that
the Pata is significantly different
instead this case that the home invasion statue
was the original underlying felony
and that this court found that the
reasons that the court found the
particular way that they did
was because of the very unusual legislative history
of the home invasion statute and that
but for that particular history
this court might not have found
that there was an allowable probationary sentence
underneath that
especially because the home invasion statute
originally had language prohibiting probation
and the amendments that were at issue
in the Pata did not
they actually took out language regarding home probation.
So where here
there wasn't a taking out of specific language
in the original habitual criminal statute
which is embodied in subsection A
the Commonwealth would suggest that
that it should be viewed in a different light
-: But your ultimately
or your argument is that
25A is different because you can receive parole
and you can receive
earn good time on a 25A sentence.
And that 25B you can't have that
because they have that magic language
that makes it a real mandatory minimum.
However, you're
you don't make the same argument for probation that
probation's available under 25A
and the reason you say that is because it says
that the maximum sentence has been imposed.
That's your argument, isn't it?
-: Yes.
-: Counsel
one final question.
And that is
does 25A give you any charging discretion to charge
some of the crimes listed in 25B under 25A?
-: So are you asking
if the Commonwealth could use its discretion
and only charge under subsection A
even if they qualified for subsection B?
-: Yes, right?
-: Yes, I think that the Commonwealth
could use its discretion in that manner.
Okay.
Thanks.
-: Any further questions.
Thanks counsel.
-: Thank you.