373 Mass. 856

September 28, 1977

A single justice of this court correctly allowed the Commonwealth's motion to dismiss the petition for a writ of error and entered a judgment accordingly. The plaintiff was convicted of the offense of unlawfully carrying a firearm in 1972 and pleaded guilty to the further allegation in the indictment that the offense was a second or subsequent offense. See G. L. c. 278, Section 11A. Although the allegations of the petition, prepared pro se, are obscure, it seems to be agreed that the plaintiff had been convicted in 1961 of unlawfully carrying a firearm in violation of G. L. c. 269, Section 10. During the time between the plaintiff's two offenses, G. L. c. 269, Section 10, was amended to require a greater sentence for a second offense than Section 10 required in 1961. See G. L. c. 269, Section 10, as amended through St. 1971, c. 456, Sections 5 and 6, and St. 1972, c. 312, Section 5, for the statutory provisions in effect during 1972 and, for earlier provisions, G. L. c. 269, Section 10, as amended through St. 1957, c. 688, Section 23.

1. The plaintiff claims that the imposition of a sentence for a second offense based on Section 10 as amended subsequent to his conviction of the first offense is unconstitutional as an ex post facto law. The claim is meritless. Commonwealth v. Graves, 155 Mass. 163, 164-165 (1892). Ross's Case, 2 Pick. 165, 169-170 (1824). Spencer v. Texas, 385 U.S. 554, 559-560 (1967). Graham v. West Virginia, 224 U.S. 616, 623-624 (1912). McDonald v. Massachusetts, 180 U.S. 311, 312-313 (1901). Price v. Allgood, 369 F.2d 376 (5th Cir. 1966). The statutory change required the imposition of a greater penalty for any relevant future crime. In its application here, Section 10 does not involve a greater or second penalty for the earlier offense.

2. The plaintiff further claims he was advised neither of his right to a jury trial nor that a consequence of his guilty plea was a mandatory five year sentence "without parole." This question need not be considered on a writ of error and may be presented in the Superior Court by a motion for a new trial. Commonwealth v. Penrose, 363 Mass. 677, 680-681 (1973). Earl v. Commonwealth, 356 Mass. 181, 183 (1969).

Judgment affirmed.


373 Mass. 856

September 28, 1977

The assessors of Westborough appeal under G. L. c. 58A, Section 13, from a decision of the Appellate Tax Board granting an abatement of real estate taxes for the year 1973 on refrigeration equipment installed in a frozen food storage warehouse. The taxpayer leased the land and building to a domestic business corporation, and during construction of the building the lessee purchased the refrigeration equipment from a company which installed it. The board took a view and found that the equipment was personal property and should not have been included in the valuation of the real estate under G. L. c. 59, Section 3. The rule that land and buildings are properly taxed as a unit "does not apply to machinery used in manufacture, which, if it is not real estate, may be exempt from taxation as personal property under G. L. c. 59,

Page 857

Section 5, Sixteenth (3)." Assessors of Dartmouth v. B.A. Simeone, Inc., 359 Mass. 756 (1971), and cases cited. See Assessors of Swampscott v. Lynn Sand & Stone Co., 360 Mass. 595, 597-599 (1971). We think the rule is likewise inapplicable to refrigeration equipment which may be exempt under G. L. c. 59, Section 5, Sixteenth (2). Cf. Hopkinton LNG Corp. v. State Tax Comm'n, 372 Mass. 286 (1977) (issue not properly raised). So far as the question whether the equipment was erected on or affixed to the real estate or building is a question of fact, the decision of the board is final. Coomey v. Assessors of Sandwich, 367 Mass. 836, 839 (1975).

Decision affirmed.