-: SJC-13036, Commonwealth fee, Andrew M Rozeti.
-: Okay. Attorney Schneiderman. Good morning.
-: Good morning. Your honors.
May it please the court I'm Joseph Schneiderman.
I represent Andrew Rossetti
and borrowing the baseball analogy,
I am pleased to bat third this morning.
Your honors for the last 40 years,
this court has held that there are three ways
for the legislature to create a mandatory minimum sentence,
and none of them are present in the text
to failure to register as a sex offender
subsequent offense, indeed,
the legislature actively repealed
some of that language 15 years ago.
First the legislature says mandatory or minimum.
That language is not in the statute. Second...
Justice Cypher: Let me stop you there Mr. Schneiderman.
Let me stop you there.
I wanna know is there a way
in the sentencing scheme
that you can have a sentence for a term of imprisonment
that is required yet it is not a minimum mandatory?
If you, if we, so it's not minimum mandatory,
it's not mandatory that he be sentenced to five years
because he could also have probation, right?
Joseph: That's correct. Your honor.
Yes he could have probation.
Justice Cypher: So not really a minimum mandatory
in that context.
-: That's correct, your honor. Yes.
Justice Cypher: Okay.
-: After your honor, that leads to my second point,
which is usually, actually its to my third point,
I'm going to take them out of order.
The legislature usually has language
that regulates the availability of probation,
parole or credit for time served.
And that is the language
that the legislature repealed 15 years ago.
And the Commonwealth agrees
that probation is available here as a disposition.
The Commonwealth analogy to Brown
and to the other cases cited, there
does not work because to your honor's question,
the statutes that create a minimum term,
usually give the judge some express guidance
as to how to fix a minimum
and a maximum term
as the judge is required to do.
And indeed, with all statutory construction,
we assume that the legislature knows the statutes
and the decisional law of this court.
So by way of example,
a statute that would create a mandatory minimum
would be not less than five years,
but no more than however many years.
And the Commonwealth's analogy of Brown and Brown.
Justice Cypher: Mr. Schneiderman,
would that also have a limitation on it
on probation or are those other alternatives,
would that also be included in a minimum mandatory,
the option of probation?
-: No your honor.
The option of the option of probation
would preclude judicial discretion
or I'm sorry, that's backwards.
The unavailability of probation would be a minimum mandatory
because it takes discretion away
from a sentencing judge.
-: No, but here we have some discretion.
-: We do. Yes.
Justice Cypher: But If he's going to be sentenced
to a term of imprisonment,
it has to be at least for five years.
-: Not quite your honor.
That's actually, that's the 40 years in lightfoot,
40, almost 40 years ago,
this court articulated that the phrase not less than
is not by itself enough to create a minimum mandatory,
even when combined with other language.
And I think that premise is compelling because
for the last 30 years, since the truth in sentencing act,
the legislature has abolished fixed state prison sentences.
The former conquered sentence, as it was once known.
So saying not less than in a vacuum
is not enough to give a judge guidance
as to how to fix a sentence.
And I think there's a compelling need
for discretion here in light of
the sheer number of ways
someone may commit this offense.
Registration obligation.
(inaudible)
-: Let me Interrupt you for a moment
because I'm not sure
that you precisely got to justice Cypher's point.
You don't have the word mandatory. Okay?
It's not a mandatory,
you don't have the language necessary for the,
to be a preclusion of probation.
So probation is an option,
but the judge wants to impose the sentence.
I think if I'm remembering correctly of one to two years
on one of the counts.
The statute says five years,
how can the maximum sentence, not the minimum number,
the maximum sentence,
be less than five years and doesn't come off versus Thomas,
which is justice situation resolved the issue that well,
the minimum is what the judge sets,
but the maximum has to be at least five years.
-: Your honor, I would distinguish Thomas.
And as much as the use of the firearm in a felony
adds time to a predicate offense.
Unlike here, where this is a freestanding criminal offense,
and actually has all of the hallmarks
of a free standing trial
just on whether someone is a subsequent offender.
So I would suggest that Thomas reaffirmed Heinz,
which was the statute that issue there and that holding.
But I think the judge still should have discretion
to fix a maximum term
in light of how many ways someone can violate the statute.
And particularly, in light of how,
not only is it easy to violate this statute,
but this court does not infer harsh penalties
for passive conduct.
This statute does.
(inaudible)
-: Let me just play your position here.
The statute says that the second and subsequent
conviction under this subsection
shall be punished by imprisonment
for not less than five years.
And your position is that the judge can impose a one to two
year sentence in the face of that language.
-: Yes, your honor.
I'm sorry, your honor.
was there something more?
Justice Lowy: No thank you.
-: Can you explain the logic behind that?
I guess that that's what I have more.
-: I would be happy to your honor.
The logic behind that is when the legislature
wants to take sentencing discretion away from judges,
it usually does so in the plaintiff's terms
and they're just..
-: How do you reconcile a state prison term
for two years consistent with the language
that says not less than five years?
You just saying
(inaudible)
we've said you need to use the magic words.
And therefore, even though the legislature
saying not less than five years, it doesn't mean that.
-: No, not. The phrase, not less than five years,
your honor in a vacuum is not enough.
That's my logical point.
-: Not enough for what?
Wait not enough for what?
-: Not enough to create a minimum.
(inaudible)
Joseph: I realized not less than five,
typically it would be understood as just that.
Not less than. -: Not less than five, right.
Justice George: But counsel, are you saying,
if that statute said not less than five,
but not more than 15, that if it were elongated to that,
that you would be saying the opposite,
that the minimum sentence that the judge could impose,
is five years.
-: Yes, your honor.
Justice George: So to state that simply
because there's no maximum term
that can't be a minimum term.
-: That's correct, your honor,
because there's no maximum term
there can't be a minimum term.
And indeed the logic of that to justice Wendlandt
question becomes compelling because of the myriad ways
one can violate the statute
and there is a risk that one could be punished harshly
for what is passive conduct.
Registration obligations....
Justice Gaziano: But the legislature fixes these.
Then why the legislature do what It did.
They're the ones that set this penalty.
I get your argument about unjustice could be,
but the legislature set this first for a reason.
What was the reason?
-: Your honor, I'm not aware of specific legislative history
as to the statute.
However, the context of the statute was in 1999,
the statute was passed at about the same time
as the Jacob Wetterling act.
More to your question though about texts
five years can also be considered a shorthand.
In other words,
that a felony that's punishable by up to five years
can be tried in the district court.
And first offense has that language of not more than five.
-: When you answered Justice Cypher's question about
not less than
you said that it's understood
not to fix a minimum mandatory,
but here nobody suggested this is a minimum mandatory
because the government agrees
you could give probation, correct?
-: Correct. Your honor.
Yes. The Commonwealth agrees with me. Yes.
-: Counsel, can I ask you another question?
And that is that if we wiped out,
if we just were writing on a blank slate
and we had no previous SJC cases
to look at to figure out what this sentence means,
would you think we would just read the plain language
as it is and say, you get five years or up,
or you get probation?
With no case law history interpreting
what's a minimum mandatory. Would you agree with that?
-: Your honor, if we had no history,
we would actually have an ambiguity problem
because it would be not less than five,
but there would be no guidance
as Justice George pointed out
in his hypothetical,
there would be no guidance as to what the maximum is
and the maximum...
-: It wouldn't be up to life. It could be life.
Maybe it could be life.
-: It could be life, your honor.
But then this statute potentially runs
into constitutional jeopardy.
In as much as the statute,
couldn't be read to punish five years to life
for what is essentially passive conduct.
I think...
(inaudible)
-: Passive conduct but in some circumstances
it certainly is, right?
Some circumstances, absolutely it's passive conduct.
And absolutely we don't have a terribly vicious,
dangerous sex offender on our hands.
But in some circumstances,
it's not passive conduct
and we might have somebody who is a serial predator
and might need reining in that way.
Is that not part of what the legislator could have been
thinking? The legislature.
-: Your honor I agree that the legislature
could have thought of that,
but I think there are other tools
besides the statute that could have done it,
especially the habitual offender statute.
If someone is just utterly
(inaudible)
and is moving all over the Commonwealth
from Amesbury to Pittsfield to the Cape
and they rack up enough of these
and they are as your honor,
suggesting dangerous like that.
I think the sounder approach would be
not just to try them as a subsequent offender,
but under the habitual offender statute.
And then the habitual offender statute,
a judge could impose a hard sentence.
(inaudible)
-: Under the ritual offender statute.
-: It could your honor. Yes.
Because it's three years or more,
as I recall the habitual offender statute.
More your honor's question though, this statute,
I think if this statute were as your honor,
suggesting if we were on a tabula rasa,
this statute has to be considered
in light of the law of sentencing
as a whole and how we have to have minimum
and maximum state prison sentences.
If someone is going to go to state prison,
we do not have determined, determinate,
tongue twister again.
We do not have determinate state prison sentence anymore.
And the minimum term fixes parole eligibility,
I think not less than five years
in a vacuum then becomes ambiguous.
(inaudible)
would kick in because it's plausibly ambiguous.
Even and actually to your honor's question,
putting someone into the cycle of registration
and imprisonment as the Amaechi have pointed out
would not actually further public safety.
It would further isolation
and would create another form of constitutional jeopardy.
By suggesting that this registration schema is punitive.
I fully appreciate your honor's point
that there are dangerous people
who perhaps should be subject to the statute
and perhaps should be taken off the streets.
But the statute's purpose here is one of public safety.
Public safety would not be served
as the immediate pointed out
by putting someone into a cycle of imprisonment release
non-compliance imprisonment release non-compliance
that could not be what the legislature had in mind
when they passed the statute.
-: How is that inconsistent with just
taking into account what our case law is
and reading the statute to say that the sentence can't be,
if there's going to be a sentence,
it can be straight probation.
If it's going to be a sentence at the maximum,
can't be less than five years. It could be a one to five.
It could be a two to five.
It could be three probation.
But what I don't understand is how it can be a one to two
when it says not less than five years
that I don't understand.
-: Your honor again, I, this is I'm sorry, your honor.
I didn't mean to false start like that.
Your honor, any state prison sentence
must be at least a year.
And I think the sound interpretation of the statute
is that there has to be if for subsequent offense,
state prison time.
I think five, we're saying it has to be one to five
or two to five or three to five.
-: Or probation.
Joseph: Or probation.
I think five, that would be a,
potentially be a bit of a sea change here.
And I think this court,
if such a sea change should not come lightly.
I see my red light is on,
I think in the under honors inferring
that five years is the minimum here
does not comport with the statutes, text,
purpose, or canons favoring Leonetti,
and would cause more problems than it's Taltz.
I asked that this court answered the reporting questions.
Yes. And I thank the court kindly for your time.
-: Okay. Thank you, attorney Blatchford.
Howard: Thank you. May I please the court
Howard Blatchford assistant district attorney
for Middlesex on behalf of the Commonwealth.
As justice Wetland observed in the first case this morning
words that we use to describe things really do matter.
And as they do here in this case.
This case does not involve a statute
that requires a mandatory minimum sentence
as that term is used
and behind some Lightfoot cases.
The sentence prescribed by this statute
should the judge opt for a incarceration
is a sentence of not less than five years,
which is a fixed term of the lease duration,
but not a mandatory minimum sentence.
Furthermore, it would be incorrect to say
that the unambiguous phrase,
not less than five years is the minimum sentence
under the statute
because the sentencing judge
always has the option of sentencing
the defendant to probation.
There appears to be a lot of confusion
in the use of these terms.
And if I've misused them in the Commonwealth's brief,
I apologize,
but in thinking further about this in a preparation
for the oral argument today,
I think some distinction needs to be made
in terms of what is a mandatory minimum sentence
and what is a minimum sentence
and what is a period of prescribed incarceration.
Statute here is as clear as it could be.
A second a subsequent offense
shall be punished by imprisonment in the state prison
for not less than five years.
If the sentencing judge ops for incarceration,
five years is the fixed term of lease duration
that he can impose.
But this doesn't even mean that defendant
will serve five years
because the defendant would be available
would be able to avail himself of good time
or any other credits that the department of correction
might afford him.
And those credits would not be afforded
under the scheme in Heinz and Lightfoot.
This statute stands very, very distinct
and apart from Heinz and lightfoot
it doesn't have that language that prohibits probation,
parole, good time credit and so forth.
The statutes in those cases were very draconian.
This statute was not.
In fact the sentencing formula used in this statute
has been used widely in the case law
or Westlaw search for the terms
not less than within five words of year
and or indictment or criminal returned,
133 hits alone under the Massachusetts statutes.
It's a very calm sentencing scheme.
Rented the judge here as other judges in other cases
have observed that they're faced often
with a Hobson's choice of either sentencing a defendant
to probation or to return of incarceration.
But as this court observed in October last year,
that is something that the legislature
has set up and has often failed to resolve.
In this case where the choice is
between probation and five years,
the Hobson's choice, if you can call it that
is far less than what was the case in these other cases
where it was 10 or 20 years.
So it's less of a Hobson's choice,
but still it's what legislature has chosen.
I'd like to comment briefly on a few other points
raised by the defense and the Ameche
and with respect to these other sentences
that have been imposed in the Commonwealth.
And these were outlined in a chart on pages 27 and 28
of the defendant's amended brief.
Commonwealth chose not to address these
when we wrote our brief for the reason that we believe
that it's irrelevant.
If other judges are imposing sentences
that are inconsistent with the statute,
that's no evidence really that the statute could be,
should be construed in the way
that those sentences were imposed.
Careful examination of the docket sheets
in these cases,
which are available in the amended record, appendix
reveals a few facts that I think were overlooked.
And with respect to the Kroger Corp case,
that's the Middlesex case in 2017, number 1681 CR457
There's a docket entry there that reveals
that was a partial nolle prossed
as the subsequent offense charge entered.
So I can't say for sure, we don't have the transcript,
but it would suggest that the sentence
that was imposed of two to three years state prison
was on a lesser, lesser charge than what's involved here.
Similarly in the Jenny case,
which is on the recited,
or is noted on page 28 of the defendant's record appendix
that's a Middlesex case also 1481 CR313.
where two to three years in state prison was imposed.
That sentence was not imposed
for the subsequent offense failure to register.
Rather that was imposed on a charge
of opening gross lewdness.
The two to three years in prison.
And the defendant received five years probation
on the subsequent charge.
Again, some of these other cases from other counties
involve probation violations,
and it's simply not clear from the docket sheet,
why these sentences were imposed,
but I would suggest that if the court wanted to go there
and I don't believe it should,
because I don't think it's relevant.
There may be reasons why that the dockets reveal that
sentences of less than five years were imposed
and have nothing to do with this particular statute.
Justice George: Counsel could you address
justice Louise question to your brother counsel?
Is there any interpretation of this
that would set the maximum
that not less means that the maximum sentence
that could be imposed was five years?
And so therefore the judge either had to impose probation
or five years, but can't do a one to two.
-: I don't believe that's correct, your honor.
I believe that where a statute does not provide
a maximum term of incarceration,
the maximum term would be life.
And here in that case,
the least amount of incarceration
that a judge could impose will be five years
and life would be the presumed maximum.
Obviously that would raise issues were a life sentence
imposed, but they're not presented in this case.
Justice George: Okay. Thank you.
-: A couple of other points.
The Amici note in their brief,
on the very last paragraph that there was prior,
prior in time, a mandatory minimum,
true, mandatory minimum if you will,
that apply to this statute.
What they don't know is that applied to a section C
that was repealed in 2006,
and that's section C
addressed punishment for any offender
who lists a homeless shelter as his residence pursuant
to various sections of this statute.
And that section did include the language
about no probation, no parole, no good time.
So on and so forth, that was repealed.
Clearly the so-called magical language,
if that's what's being referred to
referred only to that section C,
that those terms were included in section C,
they appear no nowhere else in the statute.
They clearly did not apply to section eight two.
Justice Kafker: Can I ask you a quick question
about Heinz?
Cause I have trouble squaring, Heinz and Brown.
Particularly Heinz footnote four,
talks about brown having a, both a mandatory
in contrast the language in here at issue here.
The language issue in Brown dealt with two terms,
both a maximum and a minimum term, is that right?
I thought there was only not less than language in Brown.
-: That was my recollection also
and brown pointed out that less than language
has always been interpreted in the same manner,
meaning that it means not less
than denotes a minimum sentence.
Justice Kafker: You see, that's where I get confused
about how we,
do we have to edit Heinz here to get to your result
because Heinz seems to support defense counsel's position
somewhat, but it may be a misreading of Brown.
I just..
-: I don't, believe that this court needs to edit
If you will Heinz, I think Heinz stands alone.
It's a different statute.
It contains those restrictions
that are not included here.
I think the court can answer these questions
in the negative in this case,
without affecting Heinz at all.
-: Do you think you can and just give me again,
your paragraph that distinguishes Heinz
in the opinion it should read is what? Go ahead.
When we're writing this up,
we say Heinz is distinguishable because of what?
-: Statute in Heinz
contains a restriction on the judge's ability to sentence
to probation, availability of parole,
available availability of good time credits,
any other credits that might be available.
The defendant until he has served the
mandatory minimum term.
And the court indicated that in those cases
where the statute is so draconian,
it leaves no way out for defendant
that the words mandatory minimum must be included.
(inaudible)
Justice Kafker: So here, even though it's a
not less than statute,
because it provides for probation,
although it doesn't expressly provide for probation, right?
It just we've interpreted to provide
for probation because of that
it's different from Heinz.
-: Right.
-: I'm sorry, you're saying the Heinz statute was draconian.
Was that the rationale in Heinz?
Oh, because it's draconian,
we're not gonna read this as a mandatory minimum.
-: That the mandatory minimum words must be used
so that it's clear that the legislature intended
that that's what they wanted to do.
But this statute...
Justice Kafker: Was that the reasoning
or was it Mr. Schneiderman's reasoning?
Which is that?
Because there was because there was both a
maximum and a minimum,
you seem like you're rewriting Heinz a little bit.
Heinz, you know, it didn't quite say that did it?
Didn't have this draconian point.
-: The Heinz statute included these draconian terms.
And that was that's our attempt to distinguish this case
from Heinz is that this statute
does not include the draconian terms
and that it must've been in the court's mind
as they were ruling in Heinz
that the mandatory minimum words must be used going
forward to denote a mandatory sentence.
It was because of those proponents.
Again, this statute does not contain Coney terms,
allows the judge to sentence to probation.
It would allow a defendant to get credit for good time.
It would be unlikely, frankly, that absent some problem,
but the defendant, even if you were sentenced to five years,
whatever, serve that amount of time,
it would most likely be less than that.
If he was able to get the good time credits.
Your honor, if the no other questions,
the Commonwealth would submit on its brief,
command of the statute is clear.
There's no ambiguity, both questions should be answered.
(inaudible)
-: Okay thank you very much. -: Thank you.