COMMONWEALTH vs. Michael A. MARCAVAGE

Discuss the case.

NOTICE: The slip opinions and orders posted on this Web site are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. This preliminary material will be removed from the Web site once the advance sheets of the Official Reports are published. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; [email protected]

COMMONWEALTH vs. Michael A. MARCAVAGE.

No. 08-P-1294.

May 8, 2009. - December 23, 2009.

Practice, Criminal, Findings by judge. Idle and Disorderly Person. Constitutional Law, Freedom of speech and press, Freedom of religion. Words, "Tumultuous behavior."

COMPLAINT received and sworn to in the Salem Division of the District Court Department on November 1, 2007.

The case was heard by Michael A. Uhlarik, J.

Benjamin D. DuPré, of Alabama, for the defendant.

Catherine Langevin Semel, Assistant District Attorney, for the Commonwealth.

Present: Berry, Mills, & Wolohojian, JJ.

MILLS, J.

The defendant, a street evangelist, was arrested on Halloween night, 2007, in the city of Salem and charged with disorderly conduct, G.L. c. 272, § 53. He was convicted following a bench trial in the District Court, and argues on appeal that (a) the evidence was insufficient; (b) he received inadequate notice of the Commonwealth's theory of the case; and (c) the confiscation of a megaphone by police violated various State and Federal constitutional protections. We affirm.

Background. [FN1] The defendant is the director of a proselytizing group that visits Salem each Halloween to preach to the crowds. Late in the afternoon, the defendant and his group stationed themselves in the Townhouse Square section of Salem. [FN2] The area was extremely congested (most people stood "elbow-to-elbow") and contained a dry fountain with an exterior wall comprised of three steps. Some group members took turns preaching with a megaphone from atop the fountain wall, while other members moved among the crowd gathered at its base. This was a visit that the defendant and his group made annually to Salem. They were well aware of the Halloween event and the crowd and conditions during the evening of Halloween.

The defendant's interactions with the crowd generated many complaints to police. He blocked the path of some people and encroached upon the personal space of others with his megaphone. Some people were frightened by him. The defendant waved a Bible "within inches" of people's faces. Some people became upset and backed away, while others walked around him. Other times, the defendant prompted complaints by using his megaphone within a foot of the faces of people passing by. His voice "tower[ed] over most," notwithstanding that it was an extremely loud night. On three or four occasions between 7:30 and 8:30 P.M., the defendant accosted people by approaching them and yelling, at times within inches of their faces, and he created more of a disturbance than any other person in the area. A police officer relayed complaints he had received about the defendant to his supervisor, who also had received complaints regarding the defendant's behavior.

Meanwhile, as the night progressed, more people entered Salem and the earlier family atmosphere began to disappear. The crowd became more hostile with the addition of intoxicated individuals. It became a younger crowd with a "lot of college students." At around 8:00 P.M., the supervising police officer approached the defendant and one of his colleagues. The latter, standing atop the fountain wall, was preaching with a megaphone while the defendant stood nearby. The supervising officer ordered that the defendant's colleague cease use of the megaphone. [FN3] The colleague complied, and the officer left the area.

At approximately 8:20 P.M., the defendant resumed use of the megaphone, at which point the police officers promptly reiterated the order and warned that confiscation of the megaphone or arrest might result if the defendant refused to cooperate. The defendant temporarily complied with the order.

Around 8:35 P.M., the defendant, contrary to the police orders, persisted in using the megaphone. The supervising police offficer approached the defendant once more, reiterated the earlier orders, and after issuing another warning, attempted to confiscate the megaphone. The defendant held tightly to the megaphone and verbally protested the confiscation. Two officers assisted the supervisor, and pushing and shoving between the defendant and the officers resulted. Then, the defendant "went limp," which caused him to fall into the fountain, bringing the officers to the ground with him. Immediately thereafter, the officers stood up and arrested the defendant. The crowd was noisy and raucous, and the area was congested and became dangerous. The defendant, by refusing police orders and resisting the confiscation of the megaphone, drew a hostile crowd that was out of control. The police were concerned for their own safety as well as the safety of the crowd. [FN4]

Discussion. Ordinarily, in assessing whether the evidence adduced at trial is sufficient to meet the government's threshold burden of proof, all evidence presented to the fact-finder is considered. Moreover, the evidence is, according to the familiar formulation, "viewed in the light most favorable to the Commonwealth." See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). Here, however, there are strong indications in the record that the fact finder--in this case the trial judge--expressly discredited at least some of the government's proof; viz., evidence that the defendant had engaged in violent or tumultuous conduct apart from his refusal to obey a police order to stop using the megaphone. Consistent with these findings, the judge apparently premised the defendant's conviction solely on his defiance of the order to stop using the megaphone and the direct consequences of his refusal to do so.

[FN5] In these circumstances, our inquiry is limited to the question of whether those actions, in context, amounted to disorderly conduct as contemplated by G.L. c. 272, § 53. [FN6]

General Laws c. 272, § 53, proscribes, inter alia, engaging in "tumultuous behavior." Commonwealth v. Feigenbaum, 404 Mass. 471, 474 (1989). While susceptible to multiple meanings, see Commonwealth v. Sholley, 432 Mass. 721, 727-728 (2000), "tumultuous behavior," for the purposes of § 53, includes the refusal to obey a police order. See Commonwealth v. Sinai, 47 Mass.App.Ct. 544, 548-549 (1999). There, the defendant, angry at being forced to pay a parking fee, refused a police order to leave the area; pounded the steering wheel of his car and shouted obscenities; attracted a large crowd of onlookers; forced traffic to be rerouted; and resisted attempts by police to take him into custody. This behavior, the court concluded, amounted to "tumultuous conduct." Id. at 549.

The facts of the present case require a consistent result. The evidence supports the inference that the defendant, by refusing the police order to stop using the megaphone, created the same sort of threat to public safety occasioned by the defendant's conduct in Commonwealth v. Sinai, supra. Indeed, if anything, the danger was far greater here in view of the very large crowds involved, the likely widespread public intoxication, the history of criminal conduct on Halloween in Salem, and the intensity of the physical altercation between the defendant and police.

Bolstering our conclusion that the defendant's conduct amounted to tumultuous behavior is the fact that there was evidence that the defendant, by disobeying the order to stop using the megaphone, had engendered hostility toward police and disrespect for their authority among the crowd. Precisely the same factors were cited in Commonwealth v. Richards, 369 Mass. 443, 446-448 (1976), in concluding that the defendant had engaged in tumultuous behavior. Likewise, in Commonwealth v. Carson, 10 Mass.App.Ct. 920, 921 (1980), we relied upon the fact that the defendant's conduct "attracted approximately 50 people, some of them laughing or yelling abuse at the police," in concluding that the defendant properly had been convicted of being a disorderly person under § 53. The defendant's actions here, like those of the defendants in Richards and Carson, exposed both the police and the public to danger by reducing the ability of police to maintain order. See Commonwealth v. Mulero, 38 Mass.App.Ct. 963, 965 (1995) (defendant engaged in tumultuous behavior when he flailed his hands "in an agitated and belligerent manner while berating [the officer] with loud profanities").

Finally, while the defendant argues otherwise, we conclude that the police had ample authority to order the defendant to stop using the megaphone once they determined that such conduct posed a public safety risk. Within the scope of their community caretaker function, and under the general power of arrest conferred on police by G.L. c. 41, § 98, [FN7] police have authority to take reasonable protective measures whenever public safety is threatened by acts that are dangerous, even if not expressly unlawful. See, e.g., Commonwealth v. Bates, 28 Mass.App.Ct. 217, 219 & n. 2 (1990) (emergency or "community caretaker" exception authorizes police to make otherwise unlawful entries or searches in certain emergencies "to protect or preserve life or avoid serious injury"). As the judge specifically found, the police exercised that power with admirable restraint on the night of the defendant's arrest. Several government witnesses testified that the defendant's use of the megaphone cultivated both fear and anger in the very large crowd, which implicated legitimate safety concerns.

Contrary to the defendant's claims, we find nothing in the record to support the inference that the decision to curtail the defendant's use of the megaphone was in any way connected with the content of his speech. See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). Indeed, as the defendant concedes, similar limits were imposed on at least one other nearby group. It is also significant to note that the police order by no means prevented the defendant from disseminating his message; rather, it was directed only at the manner of the defendant's delivery. See Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984) (manner restrictions in public spaces permissible provided they are content neutral, serve a significant government interest, and leave open alternative channels of communication). Moreover, the restriction was imposed in direct response to the changing conditions during the evening. See Freedman v. Maryland, 380 U.S. 51, 58-59 (1965) (describing procedural safeguards required to justify any prior restraint on potentially protected speech). Both of these factors militate in favor of finding the police action lawful as a measured and appropriate response to a bona fide public safety threat.

In view of the foregoing, we conclude that the defendant's failure to obey the police command to stop using the megaphone, in the particular context of Halloween night in Salem, ultimately created the kind of "hazardous or physically offensive condition affecting the public," Commonwealth v. Molligi, 70 Mass.App.Ct. 108, 111 (2007), cognizable by § 53. While his underlying conduct, particularly dissemination of his religious message, may have enjoyed First Amendment protection, that protection did not entitle him to disregard police commands reasonably calculated at ensuring public safety amid potentially dangerous circumstances. Moreover, the police-imposed limits were content neutral, and no more restrictive than necessary to protect the public. The defendant's conviction, therefore, transgressed no constitutional limits, and was otherwise proper in all respects. The defendant's motion for a required finding of not guilty was properly denied.

Judgment affirmed.

FN1. We recite the evidence in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979), for purposes of evaluating the sufficiency of the evidence. To the extent that our recitation is inappropriate for evaluating other arguments, we so specify.

FN2. As many as 100,000 people were present in Salem on that Halloween night. Of those, as many as 20,000 were present in the immediate area surrounding Townhouse Square, which is the center of the Halloween activity and the principal pedestrian route for the crowds.

FN3. In the interests of public safety, police supervisors instructed

officers that all megaphone use should be stopped at 8:00 P.M. on Halloween. The order was only a small measure the police undertook to ensure public safety during what is Salem's most notorious night. The parties have argued extensively in their briefs and at oral argument about the Salem sound ordinance, which prohibits the use of megaphones after 10:00 P.M. The ordinance is irrelevant here. The supervising police officers had made a decision, in the interests of public safety and order, to curtail behavior they reasonably believed to threaten the safety of the public.

FN4. Approximately 200 police officers were on duty that night assigned to maintain order and assure public safety. In an earlier year, on Halloween evening in Salem, there were two shootings, several stabbings, and sixty arrests, with many more individuals taken into protective custody. Each year, intoxication among the crowd was a major issue, and increased as the evening progressed. In 2007, the Salem police force was augmented by police officers from surrounding communities as well as some members of the sheriff's department and mounted officers from the Boston police department. There were approximately six officers specifically assigned to monitor the Townhouse Square area.

FN5. The judge's findings may well have reflected his legitimate concern

that, to the extent that the record left open the possibility that the defendant's conviction was premised, even in part, on conduct shielded by the First Amendment (e.g., the defendant's missionary appeals and preaching), it might have been susceptible to reversal on appeal. See Commonwealth v. Richards, 369 Mass. 443, 446-448 (1976). The judge indicated that the defendant's conviction rested solely on the evidence of his refusal to obey the police command to stop using the megaphone, and the consequences therefrom, and that the defendant had not been convicted on the basis of any protected conduct.

FN6. The defendant alleges that this conduct--continuing to use the megaphone after being requested to stop by police--is not encompassed by the bill of particulars. However, the bill of particulars put the defendant on notice that it was the loud disturbance created by his "yelling [and] screaming," together with the resulting "public ... alarm" that was the basis of the disorderly conduct charge. While the megaphone is not mentioned specifically, the focus in the bill of particulars nonetheless was on the high noise level associated with the defendant's activities and the effects of same. The bill of particulars also incorporated by reference documents that the Commonwealth had previously provided to defense counsel, including a police report that contained a description of the defendant's megaphone use.

FN7. General Laws c. 41, § 98, as amended by St.1967, 368, §§ 1, 2, provides, in relevant part:

"The chief and other police officers of all cities and towns ... may disperse any assembly of three or more persons, and may enter any building to suppress a riot or breach of peace therein. Persons so suspected who do not give a satisfactory account of themselves, persons so assembled and who do not disperse when ordered, and persons making, aiding and abetting in a riot or disturbance may be arrested by the police, and may thereafter be safely kept by imprisonment or otherwise unless released in the manner provided by law, and taken before a district court to be examined and prosecuted.

"...

"If a police officer stops a person for questioning pursuant to this section and reasonably suspects that he is in danger of life or limb, he may search such person for a dangerous weapon. If he finds such weapon or any other thing the possession of which may constitute a crime, he may take and keep it until the completion of the questioning, at which time he shall return it, if lawfully possessed, or he shall arrest such person."

END OF DOCUMENT

Link to previous locate term Term

Adobe Reader is required to view PDF images.
Get Adobe Reader

[FN7] Cf. Commonwealth v. Roucoulet, 413 Mass. 647, 652-653 (1992).

He was sentenced to five years in prison for attempted murder

attempted murder, G.L. c. 265, § 16 (count one); armed home invasion, G.L. c. 265, § 18C (count two); and five related crimes

NOTICE: The slip opinions and orders posted on this Web site are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. This preliminary material will be removed from the Web site once the advance sheets of the Official Reports are published. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; [email protected]

COMMONWEALTH vs. Jacob ZAPATA.

SJC-10396

October 6, 2009. - December 23, 2009.

Supreme Judicial Court, Superintendence of inferior courts. Armed Home Invasion. Practice, Criminal, Sentence, Probation. Statute, Construction.

CIVIL ACTION commenced in the Supreme Judicial Court for the county of Suffolk on January 29, 2009.

The case was reported by Spina, J.

Anne C. Pogue, Assistant District Attorney, for the Commonwealth.

Dana Alan Curhan (Arthur L. Kelly with him) for the defendant.

Present: Marshall, C.J., Ireland, Spina, Cowin, Cordy, Botsford, & Gants, JJ.

BOTSFORD, J.

On June 12, 2007, a grand jury indicted the defendant for attempted murder, G.L. c. 265, § 16 (count one); armed home invasion, G.L. c. 265, § 18C (count two); and five related crimes. [FN1] On January 6, 2009, he pleaded guilty to all charges. On count one, the attempted murder charge, the judge imposed a sentence of from five years to five years and one day in State prison. On count two, the armed home invasion charge, she sentenced the defendant to five years' probation with conditions, to follow the sentence imposed on the attempted murder charge. On the remaining counts, she imposed five-year terms of probation, each to run concurrently with the probationary term imposed on count two.

The Commonwealth petitioned for relief in the county court pursuant to G.L. c. 211, § 3, arguing that the sentence imposed on the armed home invasion conviction contravened the provisions of G.L. c. 265, § 18C, as amended through St.2004, c. 150, § 17 (§ 18C), which the Commonwealth contends does not permit a probationary sentence in lieu of a mandatory minimum twenty-year term of incarceration. A single justice of this court reserved and reported the case without decision to the full court. In light of the successive changes the Legislature has made to § 18C since 1998, we find the statute ambiguous with respect to whether it currently permits a sentence of probation. The rule of lenity, see Commonwealth v. Crosscup, 369 Mass. 228, 234 (1975), therefore comes into play, and we are constrained to conclude that § 18C in its present form does allow a judge to impose a probationary sentence.

The unusual history of the armed home invasion statute directs our decision. The original version of G.L. 265, § 18C, inserted by St.1993, c. 333, consisted of two sentences:

"[1] Whoever knowingly enters the dwelling place of another knowing or having reason to know that one or more persons are present within or knowingly enters the dwelling place of another and remains in such dwelling place knowing or having reason to know that one or more persons are present within while armed with a dangerous weapon, uses force or threatens the imminent use of force upon any person within such dwelling place whether or not injury occurs, or intentionally causes any injury to any person within such dwelling place shall be punished by imprisonment in the state prison for life or for any term of not less than twenty years. [2] The sentence imposed upon a person who, after having been convicted of violating any provision of this section, commits a second or subsequent offense under the provisions of this section shall not be suspended or placed on probation."

In 1998, the Legislature amended § 18C by inserting, between the statute's first and second sentence, three sentences concerning the commission of the crime with specified types of firearms--thereby converting the original second sentence into the fifth sentence of the statute. [FN2]

Following this court's decision in Commonwealth v. Brown, 431 Mass. 772 (2000), [FN3] and the Appeals Court's decision in Commonwealth v. Berte, 57 Mass.App.Ct. 29 (2003), [FN4] the Legislature amended the statute again in 2004. See St.2004, c. 150, § 17. The 2004 amendment deleted the second, third, fourth, and fifth sentences of the 1998 version of the section. As a result, § 18C, which has not been amended since 2004, now consists of a single sentence and reads as follows:

"Whoever knowingly enters the dwelling place of another knowing or having reason to know that one or more persons are present within or knowingly enters the dwelling place of another and remains in such dwelling place knowing or having reason to know that one or more persons are present within while armed with a dangerous weapon, uses force or threatens the imminent use of force upon any person within such dwelling place whether or not injury occurs, or intentionally causes any injury to any person within such dwelling place shall be punished by imprisonment in the state prison for life or for any term of not less than twenty years."

G.L. c. 265, § 18C, as amended through St.2004, c. 150, § 17. Notably, the 2004 amendment removed all references to probation in the section, even the one that was in § 18C as originally enacted in 1993. See St.1993, c. 333.

In Commonwealth v. Hines, 449 Mass. 183 (2007), the court considered a provision concerning probation ineligibility in G.L. c. 265, § 18B, as amended through St.1998, c. 180, § 56, that is similar to one of the provisions inserted into § 18C in 1998, but deleted in 2004. [FN5] We held that the provision prohibited probation as a disposition for any person convicted under § 18B. Id. at 190-191. See Commonwealth v. Lightfoot, 391 Mass. 718, 721 (1984) (interpreting almost identical language about probation ineligibility in G.L. c. 272, § 7, as amended by St.1980, c. 409, as precluding defendant from receiving sentence of probation). As the statutes reviewed in these two cases illustrate, when the Legislature intends to bar probation, it knows how to say so explicitly. In this context, the Legislature's decision in 2004 to remove all language from § 18C that expressly prohibited probation leaves a question in our minds regarding its intent with respect to the availability of a probationary sentence.

The Commonwealth argues that the fact that the current version of § 18C does not contain specific language prohibiting a probationary sentence is not dispositive. It goes on to argue that even if § 18C as originally enacted in 1993 implicitly permitted probation for first-time offenders in the first sentence of the statute by expressly barring probation for subsequent offenders in the second and final sentence, because the Legislature removed that express bar in 2004, the statute should now be read to prohibit a probationary sentence for all offenders.

The Commonwealth is correct that the Legislature "is not restricted to one means of expression" in establishing a sentencing scheme, Commonwealth v. Brown, 431 Mass. at 776, and "need not, at its peril, use the exact same formula for each statutory provision in order to achieve a particular result." Commonwealth v. Vega, 449 Mass. 227, 232-233 (2007). However, while it is possible to read the Legislature's removal of the final sentence of § 18C to signify, as the Commonwealth suggests, that a disposition of probation is not available to any offender, we cannot say with certainty that the Legislature intended this result. It seems reasonable to assume that the 2004 amendment was in some respects a response to the invitations in Commonwealth v. Brown, supra at 780-781, and Commonwealth v. Berte, 57 Mass.App.Ct. at 34, to clarify the 1998 amendment. (See notes 3 & 4, supra.) As the defendant suggests, the removal of three explicit prohibitions against probationary sentences for specific categories of offenders may indicate a legislative intent to give a sentencing judge the power, in appropriate situations, to impose a term of probation in lieu of incarceration. "[A]mbiguity concerning the ambit of criminal statutes should be resolved in favor of lenity." Commonwealth v. Crosscup, 369 Mass. 228, 234 (1975), quoting Rewis v. United States, 401 U.S. 808, 812 (1971). See Commonwealth v. Donovan, 395 Mass. 20, 29 (1985). See also Commonwealth v. Burton, 450 Mass. 55, 59-60 (2007). Therefore, we hold that G.L. c. 265, § 18C, as amended through St.2004, c. 150, § 17, does not prohibit a judge from sentencing the defendant to probation.

We recognize that this result, which has the effect of offering a sentencing judge a choice between probation and a mandatory minimum prison term of twenty years, [FN6] may seem contrary to common sense. Standing alone, the statutory language in the first sentence of § 18C, "shall be punished by imprisonment ... for life or for any term of not less than twenty years," would suggest a legislative intent that a defendant convicted under the statute could be sentenced to only a term of incarceration, not probation. However, we must read this language in the context of the 1998 and 2004 amendments, and for the reasons we have discussed, they render ambiguous what might otherwise be clear. [FN7] Cf. Commonwealth v. Roucoulet, 413 Mass. 647, 652-653 (1992).

Section 18C has caused confusion in the past with respect to the penalty portion of the statute, and this is not the first time that such confusion has yielded what may appear to be an anomalous result. See Commonwealth v. Burton, 450 Mass. at 60 (reducing conviction of felony-murder in first degree to felony-murder in second degree because armed home invasion not punishable by life imprisonment under 1998 version of § 18C). [FN8] We again invite the Legislature to clarify G.L. c. 265, § 18C.

The case is remanded to the county court for the entry of a judgment dismissing the Commonwealth's petition under G.L. c. 211, § 3.

So ordered.

FN1. Assault and battery by means of a dangerous weapon, G.L. c. 265, § 15A (b ); assault and battery, G.L. c. 265, § 13A (a ); abuse prevention order violation, G.L. c. 209A, § 7.

FN2. General Laws c. 265, § 18C, as amended through St.1998, c. 180, § 57, provided:

"[1] Whoever knowingly enters the dwelling place of another knowing or having reason to know that one or more persons are present within or knowingly enters the dwelling place of another and remains in such dwelling place knowing or having reason to know that one or more persons are present within while armed with a dangerous weapon, uses force or threatens the imminent use of force upon any person within such dwelling place whether or not injury occurs, or intentionally causes any injury to any person within such dwelling place shall be punished by imprisonment in the state prison for life or for any term of not less than twenty years. [2] Whoever commits said crime while being armed with a firearm, shotgun, rifle, machine-gun, or assault weapon shall be punished by

imprisonment in the state prison for [twenty] years. [3] Said sentence shall not be reduced to less than ten years nor shall the person convicted be eligible for probation, parole, furlough, work release or receive any deduction from his sentence for good conduct; provided however, that the commissioner of correction may, on the recommendation of the warden, superintendent or other person in charge of a correctional institution, or the administrator of a county correctional institution, grant to such offender a temporary release in the custody of an officer of such institution for the following purposes only: to attend the funeral of next of kin or spouse; to visit a critically ill close relative or spouse; or to obtain emergency medical services unavailable at such institution. [4] The provisions of [G.L. c. 276, § 87,] relative to the power of the court to place certain offenders on probation shall not apply to any person [seventeen] years of age or over charged with a violation of this subsection. [5] The sentence imposed upon a person who, after having been convicted of violating any provision of this section, commits a second or subsequent offense under the provisions of this section shall not be suspended or placed on probation." (Emphases added.)

FN3. In Commonwealth v. Brown, 431 Mass. 772, 775 (2000), we held that the language in the original (1993) version of G.L. c. 265, § 18C (§ 18C), providing for an incarcerated sentence "for life or for any term of not less

than twenty years " (emphasis added), established, with respect to a sentence of incarceration, a minimum sentence of twenty years and a maximum sentence of life imprisonment. We did not address whether the statute permitted in the alternative a sentence of probation because the issue was not raised. As for the 1998 amendment to § 18C (St.1998, c. 180, § 57), we pointed out that it was "lacking in coherence," and "problematic for several reasons." Id. at 780. We made "no attempt to interpret" the 1998 amendment but invited the Legislature to clarify its meaning. Id. at 781.

FN4. In Commonwealth v. Berte, 57 Mass.App.Ct. 29, 30-33 (2003), the Appeals Court did construe the language inserted into § 18C by the 1998 amendment, holding that § 18C, as amended by St.1998, c. 180, § 57, was not unconstitutionally vague but that it did not authorize a judge to sentence a defendant convicted of armed home invasion with a firearm to a maximum prison term of twenty years and one day, because under the terms of the 1998 amendment, the permissible maximum term for an armed home invasion with a firearm was twenty years. Id. at 32. In dicta, the court rejected the defendant's claim that § 18C as amended contained inconsistent probation provisions, stating:

"The statute begins by prohibiting probation, goes on to prohibit probation for anyone over the age of seventeen, and concludes by prohibiting probation for repeat offenders. At first glance, nothing more seems to be happening than a prohibition of probation, but the defendant claims that the additional provisos seem to allow probation in certain circumstances. We encourage the Legislature to examine this part of the statute and amend it if our interpretation does not comport with its intention, but we determine that the only rule to be gleaned from the statute as written is that probation is prohibited."

Id. at 34. The Appeals Court decided Berte prior to the 2004 amendment that removed all language in § 18C prohibiting probation, and we need not decide whether we agree with the court's analysis of those provisions.

FN5. The pertinent language in G.L. c. 265, § 18B, reads: "A sentence imposed under this section for a second or subsequent offense shall not be reduced nor suspended, nor shall any person convicted under this section be eligible for probation, parole, furlough or work release or receive any deduction from his sentence for good conduct ..." (emphasis added). The analogous language in § 18C, as amended in 1998, read: "Said sentence shall not be reduced to less than ten years nor shall the person convicted be eligible for probation, parole, furlough, work release or receive any deduction from his sentence for good conduct ..." (emphasis added). The quoted language was added to both of these statutes by the same Act of the Legislature. See St.1998, c. 180, §§ 56, 57.

FN6. The 2004 amendment does not alter our holding in the Brown case that § 18C sets "a minimum term of twenty years and a maximum term of life." Commonwealth v. Brown, 431 Mass. at 775.

FN7. It bears emphasis that we reach this result only because of the unique legislative history of § 18C. As suggested in the text, absent this particular legislative history, we might well read a statute with similar language to § 18C, as amended through St.2004, c. 150, § 17, as prohibiting a judge from imposing a probationary sentence.

FN8. In the Burton case, this court found that the plain language of G.L. 265, § 18C, as amended through St.1998, c. 180, § 57, created "the anomalous situation in which armed home invasion committed by means of a dangerous weapon such as a knife was punishable by life imprisonment, but the same crime committed with a far more dangerous weapon, such as a firearm or machine gun, could not be." Commonwealth v. Burton, 450 Mass. 55, 58 (2007). However, because we were "unable to discern what the Legislature intended by the 1998 amendment" and unable to "resolve uncertainties in criminal statutes in favor of the Commonwealth," we were "thus left to apply the statute as written" despite the seemingly incongruous result. Id. at 59, 60.

Discuss the case.