COMMONWEALTH vs. CHRISTOPHER MARACIC (and three companion cases [Note 1])

ROSE, J. Maracic and Hibbits were indicted for trafficking in 200 or more grams of cocaine in violation of G. L. c. 94C, Section 32E(b)(3), as appearing in St. 1982, c. 650, Section 11. The defendants moved to dismiss the indictments, arguing that the 1982 amendments to this statute were unconstitutionally vague because the Legislature had failed to clarify unclear language in the penalty section of the statute as inserted by St. 1980, c. 436, Section 4. The Supreme Judicial Court struck down similar provisions as impermissibly vague in Commonwealth v. Gagnon, 387 Mass. 567 (1982), Commonwealth v. Marrone, 387 Mass. 702 (1982), and Commonwealth v. Bongarzone, 390 Mass. 326 (1983). The Superior Court judge reported two questions to this court. The reported questions are (1) whether the penalty provisions of the 1982 version [Note 2] of Section 32E(b)(3) are unconstitutionally vague, or, (2) if not, whether they are ambiguous when read with G. L. c. 279, Section 24, which sets forth general standards for indeterminate sentencing. We conclude that the statute is not vulnerable in either posture.

In relevant part, Section 32E(b)(3), as appearing in St. 1982, c. 650, Section 11, reads: "[Violators shall] be punished by a term of imprisonment in the state prison for not less than ten nor more than fifteen years . . . . [Fines may not be imposed] in lieu of the mandatory minimum term of imprisonment, as established herein." Section 32E(a)(1) reads in part: "[Violators shall] be punished by a term of imprisonment in the state prison for not less than two and one-half nor more than fifteen years or by imprisonment in a jail or house of correction for not less than one nor more than two and one-half years. No sentence imposed under the provisions of this section shall be for less than a mandatory minimum term of imprisonment of one year. . . ."

"A statute is plain and unambiguous if `virtually anyone competent to understand it, and desiring fairly and impartially to ascertain its signification, would attribute to the expression

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in its context a meaning such as the one we derive, rather than any other; and would consider any different meaning, by comparison, strained, or far-fetched, or unusual or unlikely.'" New England Medical Center Hosp., Inc. v. Commissioner of Revenue, 381 Mass. 748, 750 (1980), quoting from Hutton v. Phillips, 45 Del. 156, 160 (1949).

Section 32E is divided into three subsections. These subsections begin, respectively, with the phrases: "Any person who trafficks in marihuana," "Any person who trafficks in cocaine," and "Any person who trafficks in heroin." Manifestly, each subsection applies exclusively to traffickers in the identified narcotic. Within each subsection the penalties for trafficking in large quantities are greater than the penalties for trafficking in small quantities. The mandatory minimum penalties for trafficking in heroin are on average greater than those for trafficking in cocaine. The mandatory minimum penalties for cocaine trafficking are on average greater than those for trafficking in marihuana. The logic of Section 32E, considered in its entirety, is one of increasing penalties for increasing quantities of increasingly dangerous drugs. The defendants would have us check the ballooning of these penalties with a pointedly illogical reading of Section 32E(a)(1). "It has been called a golden rule of statutory interpretation that unreasonableness of the result produced by one among alternative possible interpretations of a statute is reason for rejecting that interpretation in favor of another which would produce a reasonable result." 2A Sands, Sutherland Statutory Construction Section 45.12 (4th ed. 1973).

Viewing Section 32E(b)(3) standing alone, we think it plain that the mandatory minimum term of imprisonment is "not less than ten" years. However, the defendants argue that confusion arises when this subsection is read in conjunction with Section 32E(a)(1). Section 32E(a) is introduced by the phrase "Any person who trafficks in marihuana." This section does not apply to defendants, whose trafficking, if any, has been in cocaine. The defendants assert that the "section" to which Section 32E(a)(1) refers could be all of Section 32E. They argue, therefore, that it is unclear whether the one year term in Section 32E(a)(1) applies only to Section 32E(a)(1) or to all of Section 32E. Further, they suggest that

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the word "herein" in Section 32E(b)(3) could refer to either Section 32E(b)(3) alone or all of Section 32E. Therefore, the defendants conclude, the statute is unconstitutionally vague.

The defendants' reading is contrived. "It is a fundamental tenet of due process that `[n]o one may be required at peril of life, liberty of property to speculate as to the meaning of penal statutes,'" Commonwealth v. Gagnon, 387 Mass. at 569, quoting from Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939). Due process does not require, however, that a Legislature enact laws immune to disingenuous constructions.

The Legislature plainly included an express reference to a mandatory minimum term of imprisonment of one year in Section 32E(a)(1) because that subsection provides for sentences of different lengths either to the State prison or to a jail or house of correction. Articulation of the length of the mandatory minimum sentence is necessary in this subsection, but is unnecessary where only a State prison sentence is imposed, as in Section 32E(b)(3) and the other subsections of Section 32E as well. Moreover, the Legislature's use of the phrase "a mandatory minimum" in Section 32E(a)(1) would serve no purpose if Section 32E set forth only one mandatory minimum sentence, which would naturally be "the" mandatory minimum sentence to which all the clauses make reference.

In Section 32E(a)(1) "herein" must refer only to Section 32E(a)(1); if it does not, the Legislature's distinction between "a" and "the" in the subsection would be pointless. The same is true of the word "section." There is nothing in the canons of statutory construction or the common dictionary definition of "section" that requires us to give it an expansive meaning. A section is a "distinct part or portion of something written." Webster's Ninth New Collegiate Dictionary 1061 (1983). The word section does not appear in more than one context in Section 32E; its logical meaning in Section 32E(a)(1) and the other subsections is narrow.

The unconstitutional ambiguity in Gagnon, Marrone, and Bongarzone, supra, not only appeared within various clauses, but also created a situation in which no reasonable person could

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have chosen among several possible constructions of the penalty provisions. This is not the case here. [Note 3]

To both questions reported by the Superior Court our answer is no.