ENRIGUE CEDENO vs. COMMONWEALTH.

WILKINS, J. The Legislature has enacted two statutory provisions making the possession of cocaine with intent to distribute it unlawful. The two provisions set forth somewhat inconsistent potential penalties for conviction of that crime. See G. L. c. 94C, Section 32A (a), as amended through St. 1982, c. 650, Section 7, [Note 1] and G. L. c. 94C, Section 32A (c), as amended by St. 1988,

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c. 125. [Note 2] Although there are considerable similarities in the sentencing options available to a judge under the two statutes, Section 32A (c) requires the imposition on conviction of "a mandatory minimum term of imprisonment of one year," whereas Section 32A (a) contains no mandatory minimum prison term. Relying solely on the due process of law provisions of the Constitution of the Commonwealth, the plaintiff, Cedeno, argues that the two sections are void for unconstitutional vagueness and that as a result he may not properly be convicted under either section. We reject the argument. [Note 3]

The case is before us on a reservation and report by a single justice of this court on the pleadings and an "Agreed Statement of Facts." In September, 1988, a complaint was brought under G. L. c. 94C, Section 32E (1986 ed.), in the Dorchester District Court charging Cedeno with trafficking in cocaine. Counsel was appointed. In October, 1988, after a bench trial, a judge found Cedeno guilty of the lesser-included offense of possession

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of a Class B substance (cocaine) with intent to distribute it in violation of Section 32A (a). The judge sentenced Cedeno to two years in a house of correction, service of one year of which he suspended. The judge did not impose a mandatory minimum sentence, and appropriately so, because Section 32A (a) does not call for a mandatory minimum sentence. Cedeno appealed to the six-person jury session of the Boston Municipal Court.

On October 21, 1988, the day set for trial, Cedeno's attorney requested leave to withdraw, and a judge of the Boston Municipal Court remanded the case to the Dorchester District Court "as this court lacks jurisdiction. See Chap. 94C, sec. 32A." A judge in the Dorchester District Court thereafter assigned the Committee for Public Counsel Services as new counsel, and Cedeno subsequently was released on bail.

Promptly on its appointment, the Committee for Public Counsel Services commenced this action on behalf of Cedeno under G. L. c. 211, Section 3 (1986 ed.), in the Supreme Judicial Court for Suffolk County, asserting the constitutional challenge we have described earlier. Although that constitutional issue was not raised in the Dorchester District Court at any time, the question presented by Cedeno's petition in the county court is one of Statewide significance and should be answered in the exercise of our statutory power of general superintendence. [Note 4]

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The governing principles of Federal due process protection against vague criminal statutes are well established. As to allegedly inconsistent criminal penalties, we recently summarized the application and rationale of that Federal due process concept in Commonwealth v. John G. Grant & Sons, 403 Mass. 151 (1988). "The principle that no one may be required at his peril to speculate as to the meaning of a criminal statute applies to sentencing as well as to substantive provisions. See Commonwealth v. Gagnon, 387 Mass. 567, 569 (1982), citing United States v. Batchelder, 442 U.S. 114 (1979), and United States v. Evans, 333 U.S. 483 (1948) . . . ." Id. at 155. "The concept that a criminal statute may be void for vagueness is based in part on the principle that a person should be able to know what conduct is criminal and what will be the consequences to him of a violation of that statute. See United States v. Harriss, 347 U.S. 612, 617 (1954); Commonwealth v. Jasmin, 396 Mass. 653, 655 (1986). The concept is also founded in part on the principle that the statute should provide sufficient standards to control prosecutorial and judicial discretion. See Grayned v. Rockford, 408 U.S. 104, 108-109 (1972); Commonwealth v. Williams, 395 Mass. 302, 304-305 (1985)." Id. at 153-154.

Cedeno argues first that Section 32A (a) and Section 32A (c) are void for vagueness because a person could not tell until charged under one or the other subsection whether he was risking a mandatory minimum prison term. His second void for vagueness argument challenges the discretion that a prosecutor has to proceed under one or the other subsection.

There is no significant doubt about what the Supreme Court of the United States would do if Cedeno's notice argument were presented to it under the Fourteenth Amendment to the

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United States Constitution. In United States v. Batchelder, supra, two statutes made the same conduct criminal and prescribed different maximum penalties. The defendant was found guilty and sentenced under the statute having the higher maximum penalty. The Supreme Court upheld the sentence. The Court said: "Although the statutes create uncertainty as to which crime may be charged and therefore what penalties may be imposed, they do so to no greater extent than would a single statute authorizing various alternative punishments. So long as overlapping criminal provisions clearly define the conduct prohibited and the punishment authorized, the notice requirements of the Due Process Clause are satisfied." United States v. Batchelder, supra, at 123. The Batchelder opinion presents a view substantially on point on these facts, but, of course, based on Federal due process of law principles rather than on the State due process of law provisions relied on in this case.

Cedeno does not urge that different underlying reasons for the void for vagueness doctrine apply in making a due process of law analysis under the Constitution of the Commonwealth. He argues in effect that State due process of law principles should be less tolerant of confusion in a criminal statute. We need not decide whether the State standard is stricter than the Federal standard. We simply see no significant ambiguity in the legislative intent expressed in Section 32A (a) and Section 32A (c). The only question, one which we address later in this opinion, is whether there is any constitutional weakness because the prosecutor can elect whether to proceed against a defendant under Section 32A (a) in the District Court or under Section 32A (c) in the Superior Court (perhaps after a probable cause hearing in the District Court). [Note 5]

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Cedeno relies heavily on our opinion in Commonwealth v. Gagnon, 387 Mass. 567 (1982), in which we struck down as unconstitutionally vague a drug control statute that contained both a mandatory term of imprisonment and an optional penalty of a fine or imprisonment, or both, for violation of the statute. The Gagnon case, which was argued solely on Federal constitutional grounds, involved a special situation not present in this case. "[T]he conflict between legislative directions was substantial and irreconcilable. . . . There was no basis on which the inconsistency could be resolved." Commonwealth v. John G. Grant & Sons, 403 Mass. 151, 156 (1988) (applying only Federal due process principles. Id. at 154). The void for vagueness argument disappears, however, when there is no fundamental inconsistency in the expressed legislative intent. Id.

The Appeals Court has appropriately distinguished the Gagnon case from other situations in which claims of unconstitutional vagueness have been asserted. In one instance, it commented that the unconstitutional ambiguity in the Gagnon case appeared in clauses in the same section of a statute and "created a situation in which no reasonable person could have chosen among several possible constructions of the penalty provisions." Commonwealth v. Maracic, 18 Mass. App. Ct. 722, 725-726 (1984). In another case, the Appeals Court characterized the circumstances of the Gagnon case as one in which "the core concept [was] indecipherable" and "one could only speculate as to the punishment the Legislature may have intended by the impenetrable language employed to express it." Fogelman v. Chatham, 15 Mass. App. Ct. 585, 589 (1983).

In the Gagnon case, this court tried to resolve the statutory inconsistency by looking to the legislative history of the section but found it to be inconclusive. Commonwealth v. Gagnon, supra at 572. Confronted with a statute containing an ambiguity similar to that in the Gagnon case, a Federal Court judge in this State did not follow the Gagnon result, however, because he was able to resolve the "inconsistency" by looking at the accompanying statutory provisions and legislative history. United States v. Restrepo. 676 F. Supp. 368, 375 (D. Mass. 1987) ("Where Congress' intent has been expressed so clearly,

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I will not construe the statute in a way that will frustrate that intent").

As we have said, there is no uncertainty about what the Legislature has provided in Section 32A. Section 32A (a) proscribes certain conduct and prescribes a range of penalties for its violation. Section 32A (c) proscribes certain conduct which also falls within the conduct proscribed by Section 32A (a) and prescribes a range of penalties. No one can be confused about what the Legislature intended. If a person possesses cocaine with the intent to distribute it, that conduct is criminal. That point is clear. The Legislature has said it twice in Section 32A. It is equally apparent that, if a defendant is convicted under Section 32A (a), a particular set of consequences stated in that subsection can follow. Similarly, if a defendant is convicted under Section 32A (c), a particular set of consequences stated in that subsection can follow (and a mandatory one-year sentence will follow). If there is a problem in a constitutional sense in the coexistence of Section 32A (a) and Section 32A (c), it does not lie in any uncertainty about what those sections mean.

Cedeno's second argument is that Section 32A (a) and Section 32A (c) are void for vagueness because they vest excessive discretion in prosecutors and judges to decide the penalty to which an accused will be exposed. The sentencing discretion granted by Section 32A (a) or by Section 32A (c) to judges is no greater than that granted by many criminal statutes. The prosecutor, not the judge, decides whether a person is to be charged under Section 32A (a) or under Section 32A (c). We shall decide this question of prosecutorial discretion even though Cedeno was a beneficiary of prosecutorial discretion and was only charged under the subsection providing no mandatory minimum one-year sentence.

As we noted earlier, the range of prosecutorial discretion offered by Section 32A (a) and Section 32A (c) would not be an unconstitutional grant of authority under Federal due process principles. United States v. Batchelder, 442 U.S. 114, 123 (1979). See Commonwealth v. Gallant, 373 Mass. 577, 586-587 n.11 (1977) ("Arguments about incremental deterrence from varying potential punishments have no place in analyzing the vagueness of a statute"). Prosecutors have wide ranges of discretion in

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deciding whether to bring criminal charges and in deciding what specific charges to bring. The policy choice the Legislature granted to prosecutors in Section 32A is not inappropriately wide in range. In the absence of any showing that individual prosecutors have acted arbitrarily or unfairly in exercising their discretion, we see no violation of State due process principles resulting from the coexistence of Section 32A (a) and Section 32A (c). See Robinson v. Berman, 594 F.2d 1, 3 (1st Cir. 1979).

We conclude that the Dorchester District Court had jurisdiction over the complaint under G. L. c. 94C, Section 32A (a), charging Cedeno with possession of cocaine with intent to distribute it. In turn, the Boston Municipal Court had jurisdiction of Cedeno's appeal to it for a jury trial (Commonwealth vs. Cedeno, Municipal Court of the City of Boston, Suffolk Co., # 886775 [1988]]). Judgment shall be entered in the county court ordering that the case of Commonwealth vs. Cedeno, District Court Dept., Dorchester Div., # 8807 CR 8750 (1988), be transferred to the Boston Municipal Court jury session for disposition.

So ordered.