-: SJC-13379.
Commonwealth v. Michael J. McNeil.
Speaker: Okay. Attorney de Palma.
-: Yes. Good morning.
May I please the court?
My name's Valerie de Palma
and I represent the defendant appellant Michael McNeil.
Mr. McNeil was unlawfully adjudicated, a third offender
under the shoplifting statute.
Under that statute, a person convicted
of a third or subsequent offense is subject
to either a fine up to two years in jail or both.
What at issue in this appeal,
what is at issue in this appeal is the meaning
of the word offense as it is used in this context.
The statute does not define the word offense
and in these circumstances, the common law definition
fills in unless it is contrary to the statute's purpose.
This court recently in Wallace W., 2019 case,
discussed offense in a very different context as used
with respect to offenses that are excluded
from the juvenile court's jurisdiction.
But it's def-, it's discussion
of offense in that context is helpful.
Particularly its statement that offense as used
in sentencing statutes is typically synonymous
with conviction or adjudication,
citing explicitly the shoplifting statute.
So I believe it's fair even though that statement
isn't directly part of its holding,
I think it's a fair
and very recent pronounced by this court.
-: Can we look at, I think the only case
on this is that Simon's case, Judge Spina's case.
-: Yes. Yes.
-: So he lays out the commonwealth roots as you talk about.
In basically says that as I read it, he said the purpose
of a guilty file would be to suspend a sentence.
It was in lieu of before they had probation, correct?
So a judge could find, adjudicate someone guilty,
but I'm not gonna suspend you.
Keep your nose clean and we'll just keep it in in abeyance.
That was... -: Yes, that was.
-: That's why we're here, right?
That's what a guilty file does.
-: Yes. Its active proceedings are suspended indefinitely
until either party can seek to remove it.
-: That was a problem that Justice Spina indicated in Simons
'cause people wouldn't do anything with them,
they would just leave them hanging.
-: Right. And, you know, as, and interestingly
am doing the research for this because, you know, you think
oh, it's gotta be an easy answer and there never is.
It's always like, and the courts that have wrestled
with this question are the federal courts
because they're constantly, you know, being asked-
-: And that goes against you,
what the federal courts have done.
-: Well not one, actually, it's a district court case
that called Carrie, it's cited in my brief
and it's the one case I brought because I think it
is the very no, it was very well reasoned.
It is seven 16 F subsecond 56.
It's a main.
-: But isn't that interpreting the federal?
It, it's, 'cause I read it too
it's Judge Woodlock and it's very well reasoned,
but it really is interpreting federal language
not the meaning of offense or-
-: True, but under the ACA they have to follow Massachusetts.
It's the Massachusetts,
whether Massachusetts designates the offense
as a conviction.
So then he had to go at the latter part of the opinion
discuss well what if Massachusetts Court said,
and as Justice Gaziano's pointed out.
-: And what I'm struggling with is, is this is
the Simon's logic where it is an adjudication of guilt.
That's what troubles me as to whether or not
that's an offense because it's an adjudication
that you committed the offense.
-: Right. It's a-
-: Like you committed a crime alleged.
-: Yeah, I kept trying to think of it as kind of
the flip of a quaff, but it doesn't really (indistinct).
-: I did the same thing.
I was trying to think of it's because it's before
it exists in the common law and a quaff is different
because there's no adjudication.
-: Right. You have just sort of a...
-: In a dismissal
-: Right. -: Later on.
And you do have, well, here you have the entry of
a guilty fi-, there's an actual entry.
-: Right. So I think it's actually more.
-: So there is a finding of guilt either after a plea
or a guilty verdict, but we have no sentence.
Whereas a quaff, there is the admission,
but it's never entered.
Which is of course the entry is critical, I think,
for our purposes.
And also a potential for dismissal, but also
a potential for, you know, a violation.
And then, you know, it could turn, it could ripen into
something.
-: But then you're found guilty if it's, right?
Valerie: Right. And then it becomes a, right.
But there's but until anything's, until either that period
it's open until something happens, it's still not an entry
and not a sentence.
It's open.
So they're not quite. Yes?
-: I'm sort of I'm sort of jumping ahead here.
I realize it, but I sort of wanna cut to the issue.
So it, it seems clear
that chapter 266, they're using offense and conviction,
you know, it's interchangeable.
On the other hand,
the there is no disposition in a guilty file.
And we have cases that you could look at
in both directions.
And so skipping ahead
why isn't the resolution here, the rule entity?
-: Because as you, your Honor, mentioned there was, you know
the cases are, can basically be grouped into two.
One is as conviction triggering a disqualification
forfeiture or other such,
you know, a penalty of sometimes civil.
Typically those cases interpret conviction to mean
that they must imply, conviction implies a judgment
IE, a guilty finding plus a imposition of a sentence.
And then there's other cases that have interpreted
conviction in the context of other statutes where
the word conviction is really describing a stage
of the proceeding.
And in those cases, conviction has been interpreted to mean
a, just a finding of guilt.
So where I, my argument and the amicus
also that was submitted,
argues that this is obviously
a statute that is triggers a penalty,
and add a sentencing enhancement.
And that, from that point of view,
it should follow the cases that interpret conviction
to mean a implying a judgment.
And the other reason is the rule of lenity, which is-
-: Have you already gotten your lenity?
You got the lenity the first time around when
they filed the guilt, the, I mean,
it's a little difficult to argue, oh,
I gave you a break so that you would behave.
But you know, if you misbehave
I'm gonna reimpose that and then say, well,
the rule of lenity now applies on the second one.
You gave me a break the first time, you shouldn't have.
Now I'm gonna pose, I find that a double lenity.
I'm not sure I've ever seen anything like that before.
-: Well, I mean, I think the rule, I mean it's a rule
of statutory construction and as the court knows
it's implied when a statute is ambiguous
and because it's a criminal statute, the defendant
gets the benefit of the ambiguity.
But, and yes, my client had, you know,
he received a guilty filed in his past and the question is
can that be used to enhance his sentence pursuant
to the repeat offenders of the shoplifting statute?
And I would argue that this is really, I mean,
if the prosecution had wanted him to be fi-, to be sentenced
as a third offender, they could have removed the filing,
imposed, you know, and for a second it's still a fine
and turned this into a conviction if they had wanted to
before this proceeding or, you know, I mean, I think.
-: Have to be before the crime.
But what about-
-: Well, it would have to be, he'd have to be
convicted before, I mean I think they do (indistinct).
-: So what about the issue
though that isn't it just obvious
in the two, chapter 266 that offense means conviction?
-: I think, yeah, I think it means conviction.
And then the question is it conviction meaning plus sentence
or does it is it conviction meaning just entry
of a guilty finding?
-: Well, if it's a conviction
why wouldn't it count as a predicate?
-: Well, I think it, if it's a conviction,
if it's a conviction in the sense of
a guilty finding plus a sentence, then it should count.
But if, and as footnote two in Simmons says, you know
Justice Spina made, I mean I think the footnote is
serves as a clarification that there was
the case is referred to guilty filings as convictions
and he was sort of making the point that they're not,
they're something different.
They're, because convictions, as he says.
-: Isn't he saying, I thought he was saying
they re it's a misnomer to say they're-
Valerie: Convictions.
-: Well, it's a little unclear what he's saying on that.
I thought he was making the opposite point
that we shouldn't call it.
Well if you, where's the exact language he uses?
I'm trying to.
-: It's in footnote two and it, he says
"We note that our jurisprudence commonly has referred
to this practice as placing convictions on file.
It is well established that a judgment
of conviction does not enter unless a sentence is imposed."
So meaning because a guilty file
means there's no sentence imposed.
-: Then he goes on to say, so, "To place a conviction
on file is internally contradictory," suggesting
I thought he was making the opposite point.
Okay, it is clearly a conviction
so we shouldn't use this.
I don't know, it's.
-: I thought he meant you can't,
if you have a conviction, you can't file it.
-: I thought he was just talking about the nomenclature.
(indistinct overlap)
-: Multiple readings are
and then although this is an error, you know, we will.
-: It doesn't make me feel good
'cause he's a better writer than me.
-: Always the footnotes. -: Words are always,
if, you know
ambiguity cannot be avoided.
Speaker: It's always the dicta.
-: So I think, you know, at least in my view, you know, this
and again, this is also dicta, but it's not obiter dicta.
I guess this would be that, you know, it wasn't necessary
to the case's holding, but it certainly wasn't
a non-sequitur or just a throwaway comment.
It was an important statement of the law.
And since this time there hasn't been any other cases that
at least directly have confronted this issue.
And so does any have any other questions?
-: I guess I only point out the obvious.
This may be the peric of all peric victories because
either way, if you come out and say that it's a conviction
without a sentence and it's not triggering
or the rule of lenity, this will be the last defendant
to get the rule of this lenity.
And, you know, that would be an important thing
in community courts where there are a whole lot
of good people who have violated a criminal statute
that this particular device has been used for a long time.
So.
-: Well I think it, I don't think it will.
Someone did raise the specter
of the destruction of the guilty filed as a possibility
as a sentencing option.
I mean, I don't think judges will not use it.
I think it's still a useful.
-: Don't the prosecutors have to agree?
That's the problem, right?
Valerie: I think they'll start objecting.
Justice Georges: Well if it's not going to serve
as a predicate particularly in these kinds of crimes,
you know, these kind of
quality of life crimes.
I mean these are the kind of crimes that drive Walgreens out
of, the Walgreens out of neighborhoods.
-: Well, I for sure it's, I mean, for sure this decision
will be of consequence not just to, you know, local courts
but to federal courts and immigration and.
-: Which it's a hard question.
That's why it was reported appropriately, so.
-: Yeah, no, it is, it's an important question.
But I also think
that yes, there will be some reconfiguring.
-: Can I ask you one sort of technical question about
that footnote for a second?
When Justice Spina writes,
"It is well established that a judgment of conviction
does not enter," is he drawing a distinction judgment
of conviction as opposed to, you know, offense
or conviction 'cause the judgment's,
you know, finality?
-: Right, yeah, my sense is a judgment is the conviction
and sentence, once the sentence is imposed and then becomes
a judgment.
-: If this person's clearly been convicted,
but they haven't been sentenced.
But is he drawing a distinction there
between a judgment of conviction, meaning that sort
of the judgment's issued so we've gone one step further
than a guilty filed.
-: Yeah. Yes, we've imposed sentence
and well it becomes final and appealable.
-: Well, we see, but that's the, that's, I'm wondering
if he's choosing his words particularly carefully
there drawing distinction between a conviction
and a judgment of conviction.
Speaker 2: Well, that will be something
we'll have to...
-: Thank you.
Okay, thank you very much.
And we, my client and I ask that you vacate the finding
or the adjudication as a third offender
and remand to the district court.
-: Okay. Thank you.
Attorney Moriarty.
-: Good morning.
May it please the court Marina Moriarty.
On behalf of the Commonwealth, your Honor,
is a Commonwealth urges this court to hold
that a guilty file constitutes a prior offense
for the purposes of the shoplifting statute.
The Commonwealth contends that the legislature was
intentional in its use of the word offense in amending
the 2018 shoplifting statute and deliberately chose the word
offense as opposed to conviction, which in suggests
that there has been both a finding or a finding of guilt
and in sentence imposed and a conviction is something
upon which a defendant can appeal without a sentence.
This, the case law has pretty continuously held
that there is no appeal.
The Commonwealth suggests that this holding would be
consistent with Wallace W.
although Wallace W. had some dicta in it that suggested
that offense is synonymous with conviction, ultimate-
-: I mean, you know, Wallace W., the issue was
whether a probable cause finding was gonna be an offense
or a conviction.
And Wallace W., points out
that we use offense and conviction interchangeably
in these statutes and it's not that clear.
So I'm not sure what was summarily done in Wallace W.
as you write, actually it was pretty carefully done.
So what's your point?
-: My point your Honor was that was simply
that it wasn't the issue in the case.
It was raising that fact
that the shoplifting statute did have the word offense
in it, just like the word disorderly conduct
has the word offense in it.
And it's the same for disorderly conduct
that a second offense, disorderly conduct now
subjects a person to possible imprisonment
with a first offense is simply a fine.
So I, my point your Honor was simply that it was not
the holding in the case.
It was pointing out that offense is used in this statute.
And I would suggest that the holding in Wallace W. where
where this court held that an offense was something more
than a finding of probable cause, but something less than
an appealable conviction was an offense
within the meaning of the juvenile justice statute
which is also part of the 2018 criminal justice reform.
I would suggest that the Commonwealth's interpretation
of the statute is also consistent with the definition used
in the 2018 criminal justice reform.
Although in a different context,
offense is used in the context of expungement where
it simply says a violation, an offense is a violation of
a criminal law for which a person has been charged
and has made a criminal court appearance
or juvenile court appearance
for which there has been a disposition
in a record.
Here pursuant to Master of Criminal procedure 28 E.
There not only is a record, but in order
for a guilty file to enter, there has to be both the consent
of both parties and a finding by the judge of guilt.
I would also suggest that this interpretation is consistent
with the intent of the legislature to offer leniency
for both the first and the second offense of shoplifting.
But at some point, there needs to be some actionable
deterrent on the part of the Commonwealth to prevent
individuals who persist in serial shoplifting for a variety
of reasons to make them appear before the court
and amenable to rehabilitation.
Finally, I would suggest that the Commonwealth
interpretation is consistent with the plain words
that the legislature used.
The legislature did not use the word conviction.
They clearly know how to use the word conviction.
They used the word conviction
in the OUI statute in the common (indistinct).
-: But the legislation, I mean they
offense and conviction are often used sort of
in an offhand way, aren't they?
We've got a lot of statutes like that.
It's not like there's a clear line
in the case law between an offense and a conviction.
Right?
-: Well, I think that's why we're here, unfortunately.
And I do think, but I do think
that this court has said that words matter.
And so where in the two six
where the common notorious thief, section 266
section 40 writes, "Whoever having been convicted
upon indictment of larceny," and goes on, I do think
that the fact that they did not use conviction should be
at least considered by this court as something less
than requiring a conviction to prove a first
and second offense larceny.
And I suggest that a guilty file
is that kind of middle ground.
-: How do you deal with the rule of lenity?
-: Well, I do think that it's consistent
with the word offense.
It's consistent with the individual has been put on notice.
They have made an admission, a judge in open court.
They have been made aware of their,
of the guilty finding they had to consent to it.
And so I think in the first and second instance,
they were granted the lenity here.
I do think that there, the legislature intended there
to be some mechanism to prevent and
punish shoplifters.
I do think that preventing guilty filings from entering
if this court were to held
that guilty files do not count as a predicate offense.
I do think that would significantly deter district
court prosecutors from entering into guilty files.
In my experience
and speaking with district court prosecutors,
these kinds of filings are very, very often used
in these kinds of low level misdemeanor cases
where individuals are not amenable for whatever reason
to pre-trial probation or to-
-: Do you think there's any ambiguity
in the shoplifting statute with using the word offense?
-: I don't think so.
I think
-: Do you think it's unambiguous
that offense includes guilty filed?
-: Yes, I do. And I think guilty-
-: So it's crystal clear in your mind that that's true
because the rule of lenity is not whether or not
he got a break the first time.
It's a rule of construction as your opposing counsel says.
-: It's a rule of statutory interpretation.
I understand, but I do think that when the,
a guilty file, just by the words of guilty file suggests
that a person has been put on notice that they have
committed an offense of shoplifting in the past.
-: Right and that in your argument is that is crystal clear?
-: Yes. -: Okay.
-: These kinds of guilty file cases are often not amenable
to pretrial probation, are often not amenable to quaffs
because individuals do not want to be subject
to probation for any period of time.
I would also suggest that there's no other disposition other
than guilty fine.
If guilty file is taken off the table for these first
and second offenses, you can't offer guilty probation.
The only disposition would be either a dismissal
or a guilty and some sort of fine associated with that
which I would suggest isn't necessarily
in effectuating the intent of the legislature with respect
to offering leniency on first and second
offense shoplifting.
If there are no further questions,
I'm happy to rest in my brief.