WILLIAM P. YOUNGWORTH, THIRD vs. COMMONWEALTH.

MARSHALL, C.J. General Laws c. 279, § 25, the habitual criminal statute, sets forth the elements required to trigger the imposition of the maximum statutory sentence for the felony on which a defendant is to be sentenced. [Note 1] We are asked to determine the validity of a habitual criminal indictment under

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the statute -- which requires proof of two prior convictions "in this or another state" -- where the indictment rested on one conviction in a State court and one conviction in a Federal court. A single justice of this court concluded that, because a conviction in a Federal court is not a conviction "in this or another state," the indictment must be dismissed. The Commonwealth appealed. We now affirm.

In March, 1996, a grand jury returned three indictments against William P. Youngworth, III (defendant), charging him with receiving a stolen motor vehicle, G. L. c. 266, § 28; unlawful possession of ammunition, G. L. c. 269, § 10 (h); and being a habitual criminal in violation of G. L. c. 279, § 25. The habitual criminal indictment was based on a prior State conviction in Massachusetts for armed robbery, and a prior Federal conviction in North Carolina for failure to appear before a court. Following a jury trial on the first two indictments, the defendant was convicted of receiving a stolen motor vehicle and acquitted of unlawful possession of ammunition. He then filed a motion to dismiss the still untried habitual offender indictment, based on insufficiency of the evidence before the grand jury of his actual incarceration for the two prior convictions, one of the statutory elements. See G. L. c. 279, § 25 ("Whoever has been twice . . . committed to prison in this or another state. . . for terms of not less than three years each . . ."). A Superior Court judge, who was not the trial judge, allowed the motion on that ground, Commonwealth v. Youngworth, 48 Mass. App. Ct. 249, 250 (1999), and the Commonwealth appealed. During the pendency of the appeal, the Commonwealth requested a stay of sentencing on the receipt of a stolen motor vehicle conviction. The trial judge denied the Commonwealth's request and sentenced the defendant to from two to three years at the Massachusetts Correctional Institution at Cedar Junction. [Note 2]

The Appeals Court reversed the dismissal of the habitual

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criminal indictment, holding that the evidence was "sufficient to establish probable cause to conclude that the defendant had been committed to prison for terms of not less than three years on two or more prior offenses." Commonwealth v. Youngworth, 48 Mass. App. Ct. 249, 252 (1999). This was the "sole issue," id. at 250, considered by the Appeals Court; the court did not address the question, not yet raised by the defendant, whether a Federal conviction and incarceration may support an indictment under the statute. We denied the defendant's petition for further appellate review. Commonwealth v. Youngworth, 432 Mass. 1102 (2000).

The defendant then filed a second motion to dismiss the habitual criminal indictment, this time on the ground that the statute requires two "state" convictions, and that a conviction in a Federal court will not suffice. [Note 3] After a hearing, a Superior Court judge denied the motion, holding, inter alia, [Note 4] that the defendant had waived this claim when he failed to raise it in his first motion to dismiss. The defendant filed a petition for relief pursuant to G. L. c. 211, § 3, arguing, inter alia, that the habitual criminal statute cannot be satisfied by a conviction in a Federal court. [Note 5] The single justice agreed, and on that ground remanded the case to the Superior Court for entry of a judgment dismissing the indictment.

As a threshold matter, we comment on the Commonwealth's

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contention, raised here for the first time, that the doctrine of "claim preclusion" bars the defendant from obtaining relief. By earlier challenging the sufficiency of the evidence to support the indictment in one regard, the Commonwealth argues, the defendant foreclosed any subsequent opportunity to argue other potential evidentiary insufficiencies, i.e., to make the same legal claim on different grounds.

Stripped of its civil practice trappings, the Commonwealth's argument is one of waiver, an argument summarily rejected by the single justice. Her ruling was correct. The defendant is protected from conviction except on proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. In re Winship, 397 U.S. 358, 364 (1970). The defendant has not yet been convicted under the habitual criminal statute, and he attacks the ability of the Commonwealth to prove an essential element of the offense on a ground not previously addressed. We consider the merits of the question presented.

We will not reverse an order of a single justice in a proceeding brought pursuant to G. L. c. 211, § 3, absent an abuse of discretion or other clear error of law. Thus, we review independently the single justice's legal rulings to determine whether it is erroneous. See Boston Herald, Inc. v. Sharpe, 432 Mass. 593, 602-603 (2000). There was no error.

In considering whether the phrase "in this or another state" in the habitual criminal statute encompasses Federal convictions and incarcerations, we are bound by two fundamental principles of statutory construction: (1) criminal statutes are strictly construed against the Commonwealth, and (2) any plausible ambiguity must be resolved in favor of the defendant. Commonwealth v. Wotan, 422 Mass. 740, 742 (1996), and cases cited. The statute makes no mention of Federal convictions, sentences, or incarceration in Federal prisons. It specifies only that the required convictions and incarcerations must be "in this or another state." This language is, at a minimum, ambiguous as to the question by whom the defendant must have been

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convicted and incarcerated. [Note 6] The Commonwealth argues that the term "in" merely connotes geographic location, not jurisdiction, and, because the Federal court that convicted him and the Federal prison he was sentenced to are physically located "in . . . another state," that conviction and sentence may be used to form the predicate for an habitual criminal conviction. The Commonwealth also urges us to resolve the ambiguity of the statute by reference to its history and purpose. However, dictates of criminal law require resolution of any ambiguity in favor of the defendant. See Commonwealth v. Maxim, 429 Mass. 287, 291-292 (1999).

In any event, as the single justice pointed out, there is nothing in the legislative history or our prior cases to indicate that the Legislature contemplated the use of Federal convictions to support indictments under the statute. See, e.g., Commonwealth v. Richardson, 175 Mass. 202 (1900) (summarizing history of habitual criminal statute with no reference to Federal convictions). The infancy of Federal criminal law in 1904, when the statute was last amended, St. 1904, c. 303, suggests that the Legislature most likely did not give any consideration to the use of Federal convictions. See L. Friedman, Crime and Punishment in American History 262 (1993)("[T]he federal contribution [to criminal justice in the Nineteenth Century] was a drop in the bucket"). See also Brickey, Criminal Mischief: The Federalization of American Criminal Law, 46 Hastings L.J. 1135, 1138-1142, 1147 (1995). If there was a failure by the Legislature to draft a statute to include Federal convictions (and there is nothing to suggest that the statute does not fully reflect what the Legislature intended), the remedy lies with the

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Legislature, not the courts. Commonwealth v. Richards, 426 Mass. 689, 691 (1998).

Order allowing motion to dismiss indictment affirmed.