COMMONWEALTH vs. DENNIS A. CORBETT

GREANEY, J. The defendant, Dennis A. Corbett, was convicted of operating a motor vehicle while under the influ-

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ence of intoxicating liquor, third offense, in violation of G.L.c. 90, s. 24 (1) (a) (1), as amended through St. 1994, c. 25, s. 3, effective May 27, 1994 (1994 amendment), and he was sentenced to a term of imprisonment. The defendant appealed to the Appeals Court, contending that his conviction was unconstitutional insofar as he was convicted of a third offense. We transferred the case to this court on our motion. We reject the defendant's arguments and affirm his conviction.

The background of the case is as follows. On January 22, 1986, the defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor, based on an incident which occurred on November 18, 1985. On July 14, 1994, the defendant was convicted again of operating a motor vehicle while under the influence of intoxicating liquor in violation of G.L.c. 90, s. 24 (1) (a) (1) (1992 ed.), prior to the 1994 amendment, based on an incident which had occurred on May 10, 1994. Although this was the second time the defendant had been convicted of operating a motor vehicle while under the influence of intoxicating liquor, he was not charged as a second offender because, as of May 10, 1994, G.L.c. 90, s. 24 (1) (a) (1) (1992 ed.), provided that a defendant only could be charged under its second offense provision if a previous conviction or assignment to an alcohol education program had occurred within six years of the current offense.

In relevant part, the 1994 amendment provided as follows: "If the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth, or any other jurisdiction because of a like offense [of operating a motor vehicle while under the influence of intoxicating liquor] two times within ten years preceding the date of the commission of the offense for which he has been convicted, the defendant shall be punished" by a sentence which may include a term of imprisonment in a State prison. By this language, the amendment increased the reach-back period for the two prior offenses from six to ten years, and it changed the character of a third offense from a misdemeanor to a felony.

On September 17, 1994, the defendant once again was arrested for operating a motor vehicle while under the influence

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of intoxicating liquor. [Note 1] The defendant was charged under the 1994 amendment with operating a motor vehicle while under the influence of intoxicating liquor, third offense, with his January, 1986, and July, 1994, convictions serving as the two previous offenses.

The defendant filed a motion to dismiss the third offense portion of the charge, contending that "[i]f the defendant's first offense was time-barred to serve as a predicate for the second offense, it is axiomatic that it cannot serve as a predicate for a now alleged third offense." The motion was denied. After trial, the defendant was convicted as a third-time offender, and this appeal ensued.

The defendant argues that using his 1986 conviction as a prior offense under the 1994 amendment for a third offense charge acts to revive a previously time-barred offense, in violation of the ex post facto provisions of the United States Constitution and the Massachusetts Declaration of Rights, as well as being fundamentally unfair, in violation of his due process rights under both Constitutions. See art. 1, s. 9, of the United States Constitution; Fourteenth Amendment to the United States Constitution; arts. 12 and 24 of the Declaration of Rights of the Massachusetts Constitution. The defendant also argues that the 1994 amendment is unconstitutional as applied, because the two previous offenses are not "like offense[s]" to the present offense because the prior offenses were misdemeanors and the present offense is a felony.

1. Based on well-established case law, we conclude that the defendant's conviction as a third-time offender did not violate constitutional protections against ex post facto laws.

In Commonwealth v. Murphy, 389 Mass. 316 (1983), we considered G.L.c. 90, s. 24 (1) (a) (1), as appearing in St. 1982, c. 373, s. 2, and held that ex post facto principles are not violated when a person convicted of operating while under the influence of intoxicating liquor, second offense, receives an enhanced penalty for previously having been convicted of a like offense, even though the prior offense occurred before the effective date of the law mandating an enhanced penalty. In rejecting an ex post facto challenge, we explained that "[t]he enhanced punishment is imposed for a subsequent

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violation; it is not retroactive punishment for the first. . . . The prior offense is not part of the crime charged; it relates only to punishment." Id. at 320-321. Other decisions have expressed analogous principles. See Sayles v. Commonwealth, 373 Mass. 856 (1977) (holding, in the context of an amended statute governing offense of unlawfully carrying firearm, second offense, that the "statutory change requir[ing] the imposition of a greater penalty for any relevant future crime . . . does not involve a greater or second penalty for the earlier offense"); Commonwealth v. Graves, 155 Mass. 163, 164-165 (1892) (holding that statute creating offense of "habitual criminal" for individuals who are convicted of a felony [after enactment of statute] who previously were convicted of two other crimes [either before or after enactment of statute] is not unconstitutional as an ex post facto law, since "[t]he statute relates to the judgment to be rendered and the sentence to be imposed in cases arising after it goes into effect. It is prospective and not retrospective"); Commonwealth v. Groden, 26 Mass. App. Ct. 1024, 1026 (1989) (holding that "[t]he fact that the defendant's operating under the influence conviction [which forms the predicate fact for his increased punishment under the amended G.L.c. 90, s. 23] occurred before the effective date of the Act is not material. The Act is prospective in operation. It applies to separate offenses committed after its effective date, but provides that the sentence for those separate offenses may be increased based upon a defendant's prior criminal conduct. A statute which approaches sentencing in this way is not an ex post facto law").

In this case, the defendant's punishment was not retroactive punishment for any offense he committed prior to the 1994 amendment. The defendant only was charged for his criminal conduct on September 17, 1994. His prior offenses were not part of that conduct, but related only to the punishment he received for the current offense. There is no ex post facto problem. [Note 2]

2. The defendant also asserts that using his 1986 conviction

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to serve as a previous offense was fundamentally unfair, thereby violating his due process rights under the Fourteenth Amendment and art. 12. We disagree.

In Commonwealth v. Murphy, supra at 323, we recognized that "a question of fundamental fairness in a due process sense" may arise in this type of case. We held, however, that due process principles are not violated when a statute enhances punishment for a crime committed after its enactment, based on prior offenses committed before its enactment. Id. at 324. In the Murphy decision, we also rejected the defendant's claim that G.L.c. 90 s. 24 (1) (a) (1), as appearing in St. 1982, c. 373, s. 2, subjected him to enhanced punishment without fair warning, concluding that "fair warning appears in the statute characterizing the consequences of any future violation and conviction, [and that there is] nothing in G.L.c. 90, 24 (1) (a) (1), that is vague in a due process sense as applied to this case." Id. This reasoning applies here. The extended reachback period created by the May 27, 1994, amendment did not turn any of the defendant's previous operating while under the influence convictions into punishable offenses, and the defendant had fair warning that, if he violated the statute after the 1994 amendment, his punishment could be enhanced based on his prior convictions. [Note 3]

3. Finally, the defendant asserts that it was unconstitu-

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tional to treat him as a third-time offender under the 1994 amendment, because his two prior operating while under the influence convictions were misdemeanors and, therefore, not "like offense[s]" to the present felony charge. The defendant (citing no case law) asserts that, based on "the fabric of Anglo- Saxon law," and the stigmatic and legal consequences which attend a felony conviction, a misdemeanor conviction is fundamentally unlike a felony conviction and, accordingly, that his two prior misdemeanor convictions cannot be considered "like offense[s]" under the 1994 amendment. We reject the contention.

Significantly, the crimes of operating a motor vehicle while under the influence of intoxicating liquor, and operating a motor vehicle while under the influence of intoxicating liquor, second offense, were retained as misdemeanors under the 1994 amendment. If we were to accept the defendant's interpretation of the term "like offenses," no one ever could be convicted of operating while under the influence, third offense, until the offender had committed at least a fifth offense. The Legislature obviously did not intend that the revised offense be so applied. Further, without regard to the potential punishment accompanying the defendant's three convictions, the elements of each underlying criminal act remained the same. The defendant operated a motor vehicle on a public way while he was under the influence of intoxicating liquor. Under a plain and ordinary reading of the term "like offense," the three incidents clearly were "like offense[s] . [Note 4] We conclude that it was not unconstitutional to treat the defendant's two previous convictions as "like offense[s]" to

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his present operating a motor vehicle while under the influence of intoxicating liquor, third offense, felony' charge.

Judgment affirmed.