COMMONWEALTH vs. JOHN SILMAN (and companion cases).

Prior to trial a Superior Court judge reported two questions to this court under Mass.R.Crim.P. 34, 378 Mass. 905 (1979): (1) whether the penalty provisions of G. L. c. 94C, Section 32E (a) (4), as appearing in St. 1982, c. 650, Section 11, and which pertain to possession of marihuana in excess of 10,000 pounds, are unconstitutionally vague; and (2) whether there is conflict between these provisions and those found in G. L. c. 279, Section 24, governing sentences to State prison, assuming the former provisions to be constitutionally valid.

The answers to the questions reported are controlled by our decision in Commonwealth v. Maracic, 18 Mass. App. Ct. 722 (1984), in which we held that substantially identical provisions of G. L. c. 94C, Section 32E(b) (3), as appearing in St. 1982, c. 650, Section 11, prescribing penalties for trafficking in cocaine, were unambiguous and withstood constitutional scrutiny. There we found that the mandatory minimum term of imprisonment under Section 32E(b) (3) was "not less than ten" years and pointed out that the express reference in Section 32E(a) (1) to a "mandatory minimum one year term of imprisonment," for marihuana trafficking involving fifty to one hundred pounds, represented a separate scheme and was required because "that subsection provides for sentences of different lengths either to the State prison or to a jail or house of correction." Id. at 725. We find nothing in the language of G. L. c. 94C, Section 32E(a) (4), that would lead us to a different conclusion. It is clear that a mandatory minimum term of "not less than ten" years is also established by that provision.

With respect to the second question reported by the judge, we noted in Maracic that G. L. c. 279, Section 24, merely "place[s] violators on notice that their crimes are felonies." Maracic, supra at 726 n.3. There is no conflict with the provisions of Section 32E.

To both questions reported our answer is no.