ANTHONY J. BYNUM VS. COMMONWEALTH

WILKINS, C.J. We consider whether a defendant tried, convicted, and sentenced for a drug offense described in G. L. c. 94C, s. 32A (c), may properly be subjected at a later date to an enhanced penalty pursuant to G. L. c. 94C, s. 32A (d). The petitioner, whom for convenience we shall describe as the defendant, argues that the imposition of a second sentence would violate his rights under the double jeopardy clause of the Constitution of the United States. We agree that imposition of a second sentence would be unlawful but arrive at that conclusion without reaching the double jeopardy question. We, therefore, vacate the order of a single justice of this court that denied the defendant relief pursuant to G. L. c. 211, s. 3.

In August, 1993, a Plymouth County grand jury indicted the defendant alleging separate counts for (A) distribution of

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cocaine (G. L. c. 94C, s. 32A [c]), (B) a repeat offense (G. L. c. 94C, s. 32A [d]), and (C) a school zone violation (G. L. c. 94C, s. 32J). In March, 1994, a jury trial commenced on counts (A) and (C). The defendant fled during trial. The jury found the defendant guilty on both counts, but, due to the defendant's absence, the trial judge did not impose sentence or take further action on count (B). In June, 1995, the defendant was brought before the judge who imposed consecutive sentences for the convictions on counts (A) and (C). Prior to sentencing, the prosecutor advised the judge of the pendency of the repeat-offender charge. Defense counsel did not object to sentencing on the distribution charge (count [A]) before the resolution of the repeat-offender charge (count [B]).

In July, 1995, a different Superior Court judge found the defendant guilty on the repeat-offender count and sentenced him to a term of from nine to ten years in State prison to be served after the consecutive sentence imposed on the school zone count. The defendant appealed to the Appeals Court which, in August, 1997, in an unpublished memorandum and order affirmed the convictions on counts (A) and (C) but held that count (B) was fatally defective because it failed to specify the nature of the prior violation.

In October, 1997, a Plymouth County grand jury reindicted the defendant for the same three offenses. This time the repeat offender count explicitly identified the prior offense. By then, the defendant had served the sentences imposed on the convictions on counts (A) and (C) of the original indictment. He was released on personal recognizance on the charges stated in the new indictment. The defendant then moved to dismiss the second indictment on double jeopardy grounds. In March, 1998, a judge in the Superior Court denied the motion, even as to the counts that duplicated the charges on which the defendant had already been tried, convicted, and sentenced.

The defendant then unsuccessfully sought relief under G. L. c. 211, s. 3, from a single justice of this court. The single justice denied relief as to the repeat-offender count, but stated that the defendant could not be retried on the distribution and school zone counts. The single justice concluded that the repeat offender count alleged a crime that differed from the crimes for which the defendant had already been convicted. The single justice stayed proceedings in the Superior Court on the new indictment pending an appeal from his decision. We conclude

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that G. L. c. 94C, s. 32A (d), is a sentencing enhancement statute that calls for a longer sentence if a violation of s. 32A (c), alleged and proved, is shown to have followed a prior conviction of certain drug offenses. It does not state a separate crime.

1. In its August, 1997, unpublished memorandum and order, already referred to, the Appeals Court accepted the defendant's argument that the repeat-offender count in the original indictment should be dismissed because it was defective. The Appeals Court Justices who participated in that decision considered the repeat-offender count to be a nullity. Their memorandum of decision states that "jeopardy never attached, and the defendant may be retried upon a proper indictment." Neither the Commonwealth nor the defendant sought further appellate review [Note 1].

The defendant asserts that the Appeals Court's volunteered comment on the Commonwealth's right to retry him was wrong because principles of double jeopardy bar any such action. The Commonwealth counters that the defendant waived his double jeopardy claim because he did not seek further appellate review challenging the court's dictum that he could be tried again as a repeat offender. It is a curious argument that says that a party who has prevailed on a point in the Appeals Court and does not seek further review is bound by a statement of law in the Appeals Court opinion that is not essential to that court's conclusion in his favor. The prospect of this court taking a case on further appellate review at the request of a prevailing party to respond to Appeals Court dicta, even erroneous dicta, is minimal. A rule of waiver such as that for which the Commonwealth argues would put every party to any Appeals Court opinion (in cases involving the prospect of future proceedings) at the risk of an imputed waiver unless that party were to seek further appellate review to challenge particular dicta. The Commonwealth's argument lacks a sound foundation and authority to support it. The defendant had every right to challenge his subsequent indictment as a repeat offender. The double jeopardy argument now advanced could not have been made in the

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defendant's initial appeal to the Appeals Court. Until he was again indicted, he had no obligation to raise the issue of a violation of his double jeopardy rights. See Lydon v. Commonwealth, 381 Mass. 356, 360 n.7, cert. denied, 449 U.S. 1065 (1980).

2. Before any decision as to whether double jeopardy or some other principle bars the defendant's trial on the pending indictment, we first must consider precisely what it means to be charged under G. L. c. 94C, s. 32A (d). Analysis by the single justice, the Appeals Court, and others has proceeded on the erroneous assumption that s. 32A (d) creates an independent crime. Section 32A (d), which is set forth in the margin [Note 2], provides for an enhanced sentence for a person convicted of violating G. L. c. 94C, s. 32A (c), after one or more convictions of certain drug-related crimes. The procedure for prosecuting repeat offenders is set forth in G. L. c. 278, s. 11A, which provides in part that, "[i]f a defendant pleads guilty or if there is a verdict or finding of guilty after trial, then before sentence is imposed, the defendant shall be further inquired of for a plea of guilty or not guilty to that portion of the complaint or indictment alleging that the crime charged is a second or subsequent offense [Note 3]." Section 32A (d) does not identify a crime that has a freestanding life of its own. See Commonwealth v. Murphy, 389 Mass. 316, 320-321 (1983). It concerns solely the sentence of a person convicted of a violation of s. 32A (c) who has previously

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been convicted of at least one similar drug offense [Note 4]. The prior offense is not an element of the crime for which a defendant is charged but concerns the punishment to be imposed if he is convicted under s. 32A (c) and the prior offense is proved. See Commonwealth v. Chavis, 415 Mass. 703, 706 n.5 (1993); Commonwealth v. Murphy, supra at 321. The punishment is for the second conviction and is not retroactive punishment for the first. Id. at 320. The Legislature did not intend that two sentences should be imposed, one for a violation of s. 32A (c) and another resulting from the fact that the conviction was a second offense under s. 32A (d). The Legislature called for only a single sentence to be imposed under s. 32A (c) and s. 32A (d). Compare G. L. c. 278, s. 11A, and G. L. c. 94C, s. 32J (requiring an additional consecutive sentence if defendant violates s. 32A [c] within 1,000 feet of certain schools).

We need not decide how the Supreme Court would rule on the defendant's double jeopardy claim [Note 5]. The provisions of G. L. c. 278, s. 11A, indicate that the Legislature did not intend the belated imposition of an enhanced sentence in the circumstances

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of this case. The Legislature has prescribed a procedure that does not permit the imposition of a sentence for the underlying offense and then, years later in a separate proceeding, the imposition of a harsher sentence because the offense was a repeat offense. We need not consider whether the double jeopardy clause or art. 12 of the Massachusetts Declaration of Rights would otherwise support the defendant's challenge to the second indictment. We do not reach constitutionally based issues when there is a statutory or other nonconstitutional basis on which the case can be decided. This is such a case.

The order of the single justice is vacated, and a judgment shall be entered that Plymouth Superior Court indictment no. 100006 be dismissed.

So ordered.