COMMONWEALTH vs. ANDREW ROSSETTI

CYPHER, J. This case requires us to determine whether G. L. c. 6, § 178H (a) (2) (§ 178H [a] [2]), permits an individual convicted of failure to register as a sex offender, subsequent offense, to be sentenced to a term of incarceration in State prison of less than five years. We hold that it does not.

Background. We briefly recite the undisputed facts. Following a 2008 rape conviction, the defendant, Andrew Rossetti, was required to register as a sex offender. Since that time, the defendant already had been twice convicted of failure to register as a sex offender in two unrelated actions when, in 2017, a grand jury indicted him on two counts of failure to register as a sex offender, subsequent offense, under § 178H (a) (2). [Note 1] In 2019, the defendant pleaded guilty on both counts and the subsequent offense enhancements. On count 1, the judge imposed a sentence of two years of probation, with the condition that the defendant comply with sex offender registration requirements. On count 2, the judge announced that he intended to sentence the defendant "to one to two years in the state prison," but that he was staying the sentence pending his report of the questions now before this court. With the consent of the parties, the judge then reported the following two questions to the Appeals Court, pursuant to Mass. R. Crim. P. 34, as amended, 442 Mass. 1501 (2004), and Mass. R. A. P. 5, as appearing in 481 Mass. 1608 (2019):

"1. Whether G. L. c. 6, [§ 178H (a) (2),] permits a state prison sentence for a period of less than five years.

"2. Whether the court's proposed sentence of one to two

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years committed to state prison is lawful under G. L. c. 6, [§ 178H (a) (2)]."

We subsequently granted the defendant's application for direct appellate review. Based on the plain language of the statute, we answer both reported questions, "No."

Discussion. 1. Minimum terms and mandatory minimum sentences. The parties' reliance on this court's varied opinions related to criminal sentencing has revealed that, over the years, our sentencing jurisprudence has become less than clear. [Note 2] Thus, we must make plain the meaning of certain language in our sentencing jurisprudence before turning to the reported questions. [Note 3]

The parties' citations to, among others, Commonwealth v. Montarvo, 486 Mass. 535 (2020); Commonwealth v. Rodriguez, 482 Mass. 366 (2019); Commonwealth v. Wimer, 480 Mass. 1 (2018); Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297 (2015); Commonwealth v. Zapata, 455 Mass. 530 (2009); Commonwealth v. Hines, 449 Mass. 183 (2007); Commonwealth v. Brown, 431 Mass. 772 (2000); Commonwealth v. Claudio, 418 Mass. 103 (1994), overruled on other grounds by Commonwealth v. Britt, 465 Mass. 87 (2013); and Commonwealth v. Lightfoot, 391 Mass. 718 (1984), have revealed specifically that this court has not been as precise as is necessary in its use of the phrases "mandatory minimum sentence" and "minimum term." It also is clear from the parties' briefs that there is no clear understanding of where a minimum term ends and a mandatory minimum sentence begins.

The questions reported to this court surround whether the sentencing judge is bound by the minimum term presented in § 178H (a) (2). The defendant argues that the statute does not create a "mandatory minimum sentence," whereas the Commonwealth

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argues that the statute imposes a "minimum term." Because this court's "[i]nherent powers" include "among other things, those 'whose exercise is essential to . . . [the court's] capacity to decide cases,'" Commonwealth v. Teixeira, 475 Mass. 482, 490 (2016), quoting Brach v. Chief Justice of the Dist. Court Dep't, 386 Mass. 528, 535 (1982), and because this court possesses the "inherent authority to interpret the law," Sullivan v. Chief Justice for Admin. & Mgt. of the Trial Court, 448 Mass. 15, 24 (2006), we take this opportunity to delineate the differences between a "minimum term" and a "mandatory minimum term of imprisonment" or "mandatory minimum sentence" [Note 4] in order to guide our decision-making in this case and ensure that the lower courts have coherent principles to guide decisions related to sentencing, see Commonwealth v. Preston P., 483 Mass. 759, 762 (2020) (recognizing confusion created by past jurisprudence and taking opportunity to delineate distinction between "pretrial probation" and "pretrial conditions of release" before answering reported questions); Commonwealth v. Martinez, 480 Mass. 777, 783 (2018) (reformulating reported questions to "provid[e] clear and simple guidance to trial courts and litigants"). See also Commonwealth v. Claudio, 484 Mass. 203, 205 (2020) (broadening reported

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question).

"As with all matters of statutory construction, our goal in construing [a] . . . statute is to ascertain and effectuate the intent of the Legislature." Commonwealth v. Newberry, 483 Mass. 186, 192 (2019), citing Commonwealth v. Curran, 478 Mass. 630, 633 (2018). "[T]he language of the statute . . . is 'the principal source of insight' into the intent of the Legislature." Newberry, supra, quoting Sisson v. Lhowe, 460 Mass. 705, 708 (2011). Therefore, "we start 'with the language of the statute itself and presume, as we must, that the Legislature intended what the words of the statute say'" (quotation omitted). Commonwealth v. Williamson, 462 Mass. 676, 679 (2012), quoting Commonwealth v. Young, 453 Mass. 707, 713 (2009). "[S]tatutory language should be given effect consistent with its plain meaning and in light of the aim of the Legislature unless to do so would achieve an illogical result." Randolph v. Commonwealth, 488 Mass. 1, 5 (2021), quoting Commonwealth v. Wassilie, 482 Mass. 562, 573 (2019). See G. L. c. 4, § 6, Third ("Words and phrases shall be construed according to the common and approved usage of the language"). When necessary, "[w]e derive the words' usual and accepted meaning from sources presumably known to the statute's enactors, such as their use in other legal contexts and dictionary definitions." Commonwealth v. Vigiani, 488 Mass. 34, 36 (2021), quoting Montarvo, 486 Mass. at 536. See G. L. c. 4, § 6, Third. "Where the language of a statute is clear, [however,] courts must give effect to its plain and ordinary meaning and . . . need not look beyond the words of the statute itself." Commonwealth v. Mendes, 457 Mass. 805, 810-811 (2010), quoting Massachusetts Broken Stone Co. v. Weston, 430 Mass. 637, 640 (2000).

We reaffirm the long-held principle of statutory interpretation that we interpret a statute to effectuate the Legislature's intent, looking at words' "plain meaning" in light of "sources presumably known to the statute's enactors, such as their use in other legal contexts and dictionary definitions," and we further note that legal terms must be defined with precision. Randolph, 488 Mass. at 5, quoting Wassilie, 482 Mass. at 573. Vigiani, 488 Mass. at 36, quoting Montarvo, 486 Mass. at 536.

We previously have not distinguished clearly between the terms "minimum term" and "mandatory minimum" sentence, [Note 5] although, for the reasons discussed infra, it is clear that the Legislature

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conceives of the two concepts as separate and distinct. The terms must be distinguished, then, if we are to give meaning to the varied language the Legislature has employed in our sentencing statutes and effectuate legislative intent to develop minimum terms and mandatory minimum sentences as distinct sentencing concepts.

a. Minimum term. This court understands that when the Legislature prescribes in an offense-specific statute that a defendant shall be incarcerated for "not less than" a certain number of years, such language generally defines the "minimum term" permitted under the statute, according to the plain meaning of such phrase. "Minimum" is defined as "[o]f, relating to, or constituting the smallest acceptable or possible quantity in a given case." Black's Law Dictionary 1192 (11th ed. 2019). "Term," as relevant here, is defined as a "fixed period of time." Id. at 1773. Thus, a minimum term as defined in an offense-specific sentencing statute generally refers to the shortest length of time to which a judge may sentence a defendant if the judge chooses to impose a sentence of incarceration. [Note 6] In other words, if a judge sentences a defendant to a term of incarceration, the judge has no discretion to sentence the defendant to less than the minimum term provided by the Legislature. [Note 7] See, e.g., Brown, 431 Mass. at 779 ("not less than"

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number in offense-specific statute "is always the shortest sentence that can be imposed").

When sentencing a defendant to a term of incarceration in State prison, the judge must impose a sentence under the offense-specific statute and any relevant mandate of G. L. c. 279, § 24 (§ 24). With certain exceptions, § 24 mandates that an indeterminate sentence must be imposed when sentencing a defendant to incarceration in State prison. [Note 8] Id. Specifically as used in § 24, "minimum term" refers to the length of time imposed as the lower end of a sentence expressed as a range; it indicates the shortest period of time to

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which the offender is sentenced. If the minimum term defined in the offense-specific statute differs from the minimum permissible minimum term of one year provided in § 24, the higher of the two controls as the shortest minimum term that may be imposed for a State prison sentence for that offense. Thus, § 178H (a) (2), which provides that an offender "shall be punished by imprisonment in the [S]tate prison for not less than five years," defines a minimum term of five years and, as discussed infra, a presumed maximum term of life. Therefore, if a judge sentences a defendant to incarceration in State prison pursuant to § 178H (a) (2), it must be for a term ranging from, at least, five years (minimum) to, at most, life (maximum).

Because, as discussed infra, a minimum term defined in an offense-specific statute does not necessarily require a mandatory minimum sentence, where a judge is sentencing a defendant pursuant to a minimum term that does not contain additional language indicating such term to be part of a mandatory minimum sentence, the judge presumably retains discretion to order probation instead of incarceration [Note 9] or, in the case of a sentence of incarceration in a house of correction, to suspend a sentence of incarceration. [Note 10] See Montarvo, 486 Mass. at 541-542; Zapata, 455 Mass. at 531. Further, the imposition of a minimum term of incarceration presumably does not, on its own, make unavailable to the defendant various mechanisms for reducing actual time incarcerated, such as good conduct deductions. G. L. c. 127, § 129D. See Brown, 431 Mass. at 774 n.6. These mechanisms could reduce actual time incarcerated to less than the specified minimum term imposed by the sentencing judge.

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b. Mandatory minimum sentence. Although the Legislature has never officially defined "mandatory minimum sentence" or "mandatory minimum term of imprisonment," the Legislature's working definition of the terms is revealed through reported questions to this court, as well as the plain meaning of the word "mandatory." [Note 11] Black's Law Dictionary defines "mandatory" as "[o]f, relating to, or constituting a command; required; preemptory." Black's Law Dictionary, supra at 1151. In 1979, the House of Representatives reported questions of law to this court about then-proposed sentencing legislation. In its report, the House referred to one of the pending bills as imposing "a penalty of a twenty-five year mandatory imprisonment with no probation, parole, furlough, or reduction of sentence for good conduct" [Note 12] (emphasis added). Opinion of the Justices, 378 Mass. 822, 824-825 (1979). The phrase "twenty-five year mandatory imprisonment" indicates that the House understood the language of the bill to create a mandatory minimum sentence of twenty-five years. The House then described that mandatory minimum sentence to preclude the availability of "probation, parole, furlough, [and] reduction of sentence for good conduct." Id.

The plain meaning of "mandatory " [Note 13] and the definition provided to this court by the House are consistent to the extent that they reveal the Legislature's understanding and intent that a "mandatory minimum term of imprisonment" or "mandatory minimum sentence" refers to a minimum criminal penalty that (1) the sentencing judge has no discretion to lower or otherwise avoid, and (2) once imposed, must be served fully by the defendant. [Note 14]

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We also have concluded in the past that language imposing restrictions similar to those in the bills discussed in Opinion of the Justices operates to establish a mandatory minimum sentence. See, e.g., Commonwealth v. Cowan, 422 Mass. 546, 548-549 (1996) (discussing mandatory minimum sentence created by G. L. c. 269, § 10 [a], as amended through St. 1990, c. 511, §§ 2, 3 [unlawful firearms possession]); Commonwealth v. Therriault, 401 Mass. 237, 239, 241-242 (1987) (discussing mandatory minimum sentence created by G. L. c. 90, § 24G [a], as amended through St. 1982, c. 373, § 9 [vehicular homicide]). Therefore, we understand a mandatory minimum sentence both to (1) provide the minimum term to which a judge may sentence a defendant and (2) preclude judicial and executive discretion in ways that a minimum term does not. [Note 15]

If a statute imposes a mandatory minimum sentence, the judge has no discretion to sentence a defendant to less than the statutorily defined minimum term. A mandatory minimum sentence, however, further restricts judicial discretion by precluding a judge from (1) sentencing a defendant to probation instead of incarceration, (2) ordering that a sentence be suspended, (3) placing a case on file, or (4) continuing a case without a finding. A mandatory minimum sentence also requires that a defendant be incarcerated for the full length of the mandatory minimum sentence, meaning the defendant is not eligible for, among other

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things, early release, good conduct and other sentence reductions, parole, or probation, until such mandatory minimum sentence has been served.

2. Additional clarifications. [Note 16] Having defined our understanding of both "minimum term" and "mandatory minimum," we further define our understanding of the meaning of various language used by the Legislature when drafting legislation related to sentencing, none of which we conclude is sufficient, on its own, to create a mandatory minimum sentence.

Where a sentencing statute provides that a defendant "shall be punished by imprisonment for not less than" a certain length of time, according to its plain language, the statute is providing the minimum term to which a judge may sentence the defendant if the judge chooses to sentence the defendant to incarceration in the first instance. We have noted before that "[l]anguage such as this has always been interpreted in the same manner: the 'not less than' phrase denotes a minimum sentence.... It is always the shortest sentence that can be imposed, the number of years that determines parole eligibility." Brown, 431 Mass. at 777, 779. This language does not, however, create a mandatory minimum sentence because, under the rule of lenity, probation is permissible under a statute providing a minimum term but not an express prohibition on probation.

The rule of lenity requires us to give a defendant "the benefit of any rational doubt" where we conclude that a "statute is ambiguous or [we] are unable to ascertain the intent of the Legislature." Montarvo, 486 Mass. at 542, quoting Commonwealth v. Richardson, 469 Mass. 248, 254 (2014). In previous decisions interpreting sentencing statutes that are silent as to the availability of probation, we have held that such silence creates an ambiguity that must be resolved in favor of the defendant under the rule of lenity, and thus probation is available. See Montarvo, supra (where one subsection expressly prohibits probation and another does not, statute is ambiguous such that rule of lenity applies to interpret latter subsection to allow probation); Zapata, 455 Mass. at 531 (statute that does not prohibit probation expressly is ambiguous such that rule of lenity requires interpretation that probationary sentence is allowed).

Additionally, where our sentencing statutes all relate to the

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same subject matter, the sentencing of criminal defendants, "they should be construed together so as to constitute a harmonious whole consistent with the legislative purpose." Commonwealth v. Donohue, 452 Mass. 256, 266-267 (2008), quoting Board of Educ. v. Assessor of Worcester, 368 Mass. 511, 513-514 (1975). See Commonwealth v. Alfonso, 449 Mass. 738, 744-745 (2007). General Laws c. 276, § 87, provides that, with some exceptions, probation is available "in any case after a finding or verdict of guilty." Our sentencing statutes also reveal that "when the Legislature intends to bar probation, it knows how to say so explicitly." Montarvo, 486 Mass. at 540, quoting Zapata, 455 Mass. at 534. For example, G. L. c. 265, § 18B, expressly provides that no person convicted under the statute "shall . . . be eligible for probation." Other statutes include similarly express prohibitions. See, e.g., G. L. c. 90, § 24G (a) (vehicular homicide); G. L. c. 266, § 14 (burglary and related offenses); G. L. c. 269, § 10 (a), (d), (m) (firearms possession offenses); G. L. c. 272, § 7 (deriving support from prostitute). Thus, the absence of express language prohibiting probation in a statute creates an ambiguity that must be resolved in favor of the defendant under the rule of lenity, and probation is available. [Note 17]

As a result, "not less than" language, on its own, does nothing more or less than create a minimum term, as defined above. [Note 18] This language has the same effect where the statute also defines a maximum term of incarceration. We do not distinguish between

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statutes that define both a maximum and a minimum term of incarceration and those that define only a minimum because, where only a minimum is expressly imposed, we presume that the maximum term of incarceration permitted under the statute is life. Commonwealth v. Logan, 367 Mass. 655, 657 (1975), citing Binkley v. Hunter, 170 F.2d 848, 849-850 (10th Cir. 1948), cert. denied, 336 U.S. 926 (1949), and People v. McNabb, 3 Cal. 2d 441, 444-445 (1935). See Commonwealth v. Crayton, 93 Mass. App. Ct. 251, 251-252 (2018); Commonwealth v. Berardi, 88 Mass. App. Ct. 466, 466-467 (2015). Moreover, by its plain language, a maximum term simply places a limit on judicial discretion at the upper end of a sentencing range; it has no relevance to the construction of a minimum term or mandatory minimum sentence.

As such, when determining whether a statute imposes a minimum term of incarceration or a mandatory minimum sentence, language that purports to create a penalty of incarceration "for life or a term of not less than X years" or "for a term of not less than X years nor more than Y years" is functionally equivalent to "not less than" language appearing on its own and, rather than establishing a mandatory minimum sentence, simply establishes the minimum term of incarceration to be imposed if a defendant is sentenced to incarceration. "Not less than" language, on its own or in conjunction with maximum term language such as that just discussed, does not establish a mandatory minimum sentence because it does not restrict mechanisms such as probation and sentence reductions that could result in a defendant being incarcerated for a shorter term than the minimum term imposed by the judge. [Note 19]

Turning to maximum term language, where a sentencing statute provides that a defendant "shall be punished by imprisonment for not more than" a certain length of time, such language, according to its plain meaning, prohibits a judge from sentencing a defendant to a term of incarceration for more than that length of time. Thus, it creates the maximum term of incarceration that a sentencing judge may impose on a defendant and, therefore, "the

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maximum amount of time that the prisoner will serve in prison if he . . . is not granted parole." Brown, 431 Mass. at 774, quoting Connery v. Commissioner of Correction, 33 Mass. App. Ct. 253, 254 (1992), overruled on other grounds by Buffalo-Water 1, LLC v. Fidelity Real Estate Co., 481 Mass. 13 (2018). This definition applies whether the statute also defines a minimum term of incarceration or not. [Note 20] As discussed supra, the presence or absence of a maximum term is irrelevant to the analysis surrounding whether a statute creates a minimum term or mandatory minimum sentence. The inverse is also true; the presence or absence of minimum term or mandatory minimum sentence language is irrelevant to the analysis surrounding whether a statute creates a maximum term.

Where a sentencing statute includes language such as "no person convicted under this section shall be eligible for probation," the plain meaning of such language is that the imposition of probation is prohibited. Such language, therefore, restricts judicial discretion such that a judge may not sentence a defendant to probation and must, instead, impose a sentence of incarceration if one is specified in the statute. This language does not, however, on its own, or in conjunction with a minimum term, create a mandatory minimum sentence because, without additional restrictive language, a convicted person potentially could be eligible for good conduct and other deductions that would result in a period of incarceration of less than the term imposed by the sentencing judge.

Where a sentencing statute prohibits sentence reductions or deductions through language such as "no person convicted under this section shall receive any deductions from his sentence for good conduct," the plain meaning is that the enumerated deductions are not available to a defendant sentenced under such a statute. Such language is insufficient on its own, or in combination with a minimum term, however, to create a mandatory minimum sentence because, if probation is not likewise prohibited, a defendant could be sentenced to a term of probation rather

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than incarceration, or, if sentenced to incarceration in a house of correction, could have such sentence suspended.

In sum, we will not construe a sentencing statute to contain a mandatory minimum sentence where there is only one of the following provisions: "not less than" language, "not more than" language, a prohibition on probation, or a prohibition on sentence deductions. We further will not find a mandatory minimum sentence where "not less than" language is combined only with maximum term language, a prohibition on probation, or a prohibition on sentence deductions. Each of these provisions standing alone, or in the combinations just discussed, is insufficient to unambiguously convey the Legislature's intent to create a mandatory minimum sentence. [Note 21]

3. Reported questions. Before we reach the first reported question, we must address, in light of the definitions and clarifications provided above, whether § 178H (a) (2) creates a mandatory minimum sentence requiring incarceration in State prison for not less than five years. [Note 22] We conclude that it does not.

Section 178H (a) (2) provides in relevant part that a defendant who is convicted of failure to register as a sex offender, subsequent offense, "shall be punished by imprisonment in the [S]tate prison for not less than five years." This language constitutes the full scope of sentencing guidance provided by the Legislature to the judge when sentencing an individual convicted under § 178H (a) (2). [Note 23] The statute does not include language concerning a maximum term, and it is silent as to the availability of probation as an alternative to incarceration and as to sentence-reducing mechanisms, such as good conduct deductions.

As discussed supra, where a statute is silent as to the availability of probation, it is ambiguous such that the rule of lenity applies and leads us to conclude that the statute allows for a sentence of probation. We therefore conclude that the absence of express language prohibiting probation in § 178H (a) (2) creates

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an ambiguity in the statute and, thus, probation is presumably available as an alternative sentence to incarceration. Because probation is presumably allowed as a sentencing option under § 178H (a) (2), that section does not impose a true "mandatory minimum" pursuant to which a judge would have no discretion to sentence a defendant to probation. [Note 24]

Having concluded that § 178H (a) (2) does not impose a mandatory minimum sentence, we must determine next the import of the phrase, "not less than five years." By its plain language, and pursuant to the definitions and clarifications provided supra, "not less than five years" means precisely what it appears to say: a sentence of incarceration imposed under § 178H (a) (2) must be for "not less than five years." [Note 25] Thus, if a judge chooses to sentence a defendant to incarceration under § 178H (a) (2), the minimum term of such sentence must be at least five years. [Note 26]

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Because § 178H (a) (2) provides for "imprisonment in the [S]tate prison," the indeterminate sentencing statute, G. L. c. 279, § 24, also applies, requiring any State prison sentence imposed under § 178H (a) (2) to be indeterminate. In reading the indeterminate sentencing statute together with an offense-specific statute such as § 178H (a) (2), where the minimum term or mandatory minimum sentence provided in the offense-specific statute exceeds that provided in § 24, the two statutes facially may be applied together, and the offense-specific statute determines the minimum term to which a judge may sentence a defendant. [Note 27]

Applied here, the five-year minimum term in § 178H (a) (2), read together with § 24, requires a judge who chooses to sentence a defendant to incarceration in State prison to impose an indeterminate sentence, the minimum term of which may not be less than five years. We therefore answer the first reported question, whether § 178H (a) (2) permits a judge to impose a sentence of incarceration in State prison for a term of less than five years, "No." If a judge chooses to sentence an offender to incarceration pursuant to § 178H (a) (2), the minimum term imposed must be "not less than five years." Because a term of incarceration in State prison for less than five years is prohibited under § 178H (a) (2), we also must answer the second reported question, whether the judge's proposed sentence of from one to two years committed to State prison is lawful under § 178H (a) (2), "No."

The defendant cites to Rodriguez, 482 Mass. 366; Hines,

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449 Mass. 183; and Lightfoot, 391 Mass. 718, for the proposition that although § 178H (a) (2) calls for a sentence of "not less than five years," it does not actually require a sentence with a minimum term of "not less than five years." Lightfoot and Rodriguez are inapplicable here, and therefore do not support the defendant's assertion. While Hines arguably supports the defendant's position, we conclude today that it was wrongly decided and, therefore, is overruled. Thus, none of these cases leads us to conclude that a judge may sentence a defendant to less than a statutorily required minimum term.

The defendant's reliance on Lightfoot, 391 Mass. 718, is misplaced. The statute at issue in Lightfoot and the interplay between that statute and the version of the indeterminate sentencing statute in effect at the time bear little resemblance to the case before us. See id. at 719-720. The offense-specific statute at issue in Lightfoot provided for a determinate State prison sentence, in clear violation of the mandate of the indeterminate sentencing statute, G. L. c. 279, § 24, inserted by St. 1924, c. 152. Lightfoot, supra at 718 n.1, 719, citing G. L. c. 272, § 7, as amended through St. 1980, c. 409. As the statute at issue here imposes an indeterminate sentence that facially can be construed in harmony with § 24, Lightfoot is inapplicable to our analysis.

The dilemma the court faced in Lightfoot was that the apparently determinate sentence provided for in the offense-specific statute at issue was made somewhat less determinate by the inclusion of language providing that a sentence imposed under the statute "shall not be reduced to less than two years." Lightfoot, 391 Mass. at 718 n.1, quoting G. L. c. 272, § 7, as amended through St. 1980, c. 409. Because we generally seek to effectuate legislative intent rather than invalidate it, where possible, the Lightfoot court interpreted this language in conjunction with the specified five-year term as creating a two-year mandatory minimum sentence and a five-year maximum term, bringing the statute in compliance with the mandate of § 24. [Note 28] Lightfoot, supra at 721. However, where, as here, the offense-specific statute provides clear minimum term language (i.e., "not less than") that

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facially complies with the mandate of § 24, the offense-specific and indeterminate sentencing statutes facially may be applied together, and there is no ambiguity that we must resolve.

Additionally, the indeterminate sentencing statute in effect when Lightfoot was before this court required a minimum term of at least two and one-half years in State prison, whereas the current version of the statute requires a minimum term of at least one year, with exceptions. Compare G. L. c. 279, § 24, inserted by St. 1924, c. 152, with G. L. c. 279, § 24, as amended through St. 2014, c. 189, § 6. Thus, a sentence that comported with the two-year mandatory minimum set forth in the offense-specific statute at issue in Lightfoot may have failed to comply with the two and one-half year minimum then required by § 24. This conflict between the statutes, which does not exist here, created potential ambiguity that, pursuant to the rule of lenity, was to be resolved in favor of the defendant. Lightfoot, 391 Mass. at 720. Thus, it was in that context that the Lightfoot court concluded that the reference to State prison was meant to render the offense a felony. Id. at 721-722. Such context does not exist here, where the minimum term provided for in § 178H (a) (2), the sex offender registration statute, exceeds the one-year minimum term now required by the indeterminate sentencing statute, § 24, such that the two statutes can be read together according to their plain meanings. Thus, the defendant's reliance on Lightfoot is inapt.

In Rodriguez, this court attempted to harmonize three less than harmonious provisions of G. L. c. 269, § 10 (m) (§ 10 [m]). [Note 29] In so doing, we held that § 10 (m) permits a State prison sentence of

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less than two and one-half years although the first provision of § 10 (m) states that offenders "shall be punished by imprisonment in a [S]tate prison for not less than two and one-half years nor more than ten years." Rodriguez, 482 Mass. at 373-374. G. L. c. 269, § 10 (m). The court's decision to depart from a plain language interpretation in Rodriguez, however, was required because other language in § 10 (m) rendered unclear the meaning of the above-quoted provision. See Rodriguez, supra at 368 ("if the paragraph ended there, the two provisions might be readily reconciled . . . . Of course, the paragraph has three, not two provisions").

The statutory structure present in G. L. c. 269, § 10 (m), is uniquely "vexing." Rodriguez, 482 Mass. at 368. It creates two classes of offenders, firearm identification (FID) card holders, and non-FID-cardholders, and calls for two different minimum terms of imprisonment [Note 30] -- one of one year and another of two and one-half years -- applicable to non-FID-card holders. Id. at 369-370. This conflict led the court to interpret § 10 (m), in light of legislative history surrounding the "truth-in-sentencing" act and the rule of lenity, as creating, "for non-FID-card holders, a lower end of the sentencing range of from one to two and one-half years, with at least one year to serve, in State prison." Id. at 373.

The language we interpret in § 178H (a) (2) is nearly identical in structure to the first provision of § 10 (m), with both statutes providing that an offender "shall be punished by imprisonment in . . . [S]tate prison for not less than" a certain number of years.

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As the Rodriguez court concluded, the import of such language, without more, is clear. Rodriguez, 482 Mass. at 368. Unlike in G. L. c. 269, § 10 (m), and Rodriguez, in § 178H (a) (2), there is no additional statutory language rendering the five-year minimum term ambiguous or in need of any interpretation beyond the plain language of the statute. As such, Rodriguez is inapplicable. [Note 31]

The defendant's reliance on Hines, 449 Mass. 183, likewise does not preclude the answers we provide today, as the case was decided wrongly and now is overruled. The principle of stare decisis does not prevent us from overruling Hines for having been wrongly decided. "The principle of stare decisis is not absolute." Shiel v. Rowell, 480 Mass. 106, 108 (2018), citing Stonehill College v. Massachusetts Comm'n Against Discrimination, 441 Mass. 549, 562, cert. denied sub nom. Wilfert Bros. Realty Co. v. Massachusetts Comm'n Against Discrimination, 543 U.S. 979 (2004). "[W]hether it shall be followed or departed from is a question entirely within the discretion of the court." Shiel, supra, quoting Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 405-406 (1932) (Brandeis, J., dissenting), overruled on other grounds by Helvering v. Mountain Producers Corp., 303 U.S. 376 (1938). Where our sentencing jurisprudence does not currently reveal any settled or consistent legal principles surrounding minimum term language (as evidenced by the reported questions in this case), we view our decision today as departing only minimally from the principle of stare decisis. See Knick v. Scott, 139 S. Ct. 2162, 2177-2179 (2019). Courts must construe statutory language to effectuate legislative intent, in part, to respect the separation of powers inherent in our governmental structure, and to avoid rewriting the Legislature's statutes in a constitutionally impermissible way. See art. 30 of the Massachusetts Declaration of Rights ("the judicial [department] shall never exercise the legislative . . . powers"). Any departure from this principle of statutory construction, therefore, is not the kind of inconsistency that must be followed in the name of stare decisis. Where the reasons for departing from precedent outweigh the factors that favor adherence to it, we can and should acknowledge our past

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mistakes and cease perpetuating them. Shiel, supra at 109, citing Franklin v. Albert, 381 Mass. 611, 617 (1980).

"Respecting stare decisis means sticking to some wrong decisions." Kimble v. Marvel Entertainment LLC, 576 U.S. 446, 455 (2015). But it does not dictate that we do so here. When a court of last resort contemplates whether to overrule a past decision, it considers factors such as the quality of that decision's reasoning, whether the rule it established is workable, whether it is consistent with other related decisions, and whether there has been reliance on the decision. See Knick, 139 S. Ct. at 2178. See also Shiel, 480 Mass. at 108, quoting Payne v. Tennessee, 501 U.S. 808, 827 (1991) ("adhering to precedent is our 'preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process'").

None of these factors favors our continued adherence to Hines. First, as explained infra, the reasoning in Hines was flawed and the outcomes unjustified. Continuing to adhere to decisions in which we did not faithfully interpret a statute consistently with legislative intent does not promote "the actual [or] perceived integrity of the judicial process." Cf. Shiel, 480 Mass. at 108, quoting Payne, 501 U.S. at 827. Second, the problematic portions of Hines establish no clear interpretive principles to apply to similar language in other statutes. [Note 32] Third, Hines is inconsistent with Brown, 431 Mass. at 776-779, which, as explained infra, we did not reasonably distinguish in Hines. Finally, reliance interests are relatively low and arguably illegitimate. Parties are unlikely to have "order[ed] their affairs" in reliance on the minimum sentence they believe they could receive for a crime they might commit, and it is unclear whether we ought to recognize such reliance even if it existed. Contrast Kimble, 576 U.S. at 457 (adhering to precedent is most favored when precedent concerns

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property or contract law).

In Hines, this court vacated a sentence of five years of probation imposed pursuant to G. L. c. 265, § 18B, because the statute expressly prohibits probationary sentences. Hines, 449 Mass. at 190. This court also concluded that the statutory language providing that a person "shall" be sentenced to a term of incarceration of "not less than five years" did not create a "mandatory minimum State prison sentence of five years" where the statute did not include the word "mandatory," despite the statute's prohibition of "probation, parole, furlough, ... work release[, and] deduction[s] . . . for good conduct." Id. at 190-191, quoting G. L. c. 265, § 18B. The court then instructed the sentencing judge, on remand, to "'fix a maximum and minimum term' [of incarceration] in accordance with [the indeterminate sentencing statute,] G. L. c. 279, § 24." Hines, supra at 191-192. In so instructing, the Hines court appeared to allow the sentencing judge discretion to impose a sentence of less than five years. This was error.

First, the court's attempt to distinguish Brown is not compelling. In a footnote, the Hines court rejected an argument that Brown was dispositive, reasoning that the language of § 18B (which calls for "imprisonment . . . for not less than five years") was not similar enough to G. L. c. 265, § 18C (which calls for "imprisonment . . . for life or for any term of not less than twenty years") for our previous interpretation of § 18C to control our interpretation of § 18B. See Hines, 449 Mass. at 191 n.4. We did not explain in Hines the significance of the inclusion of a maximum term in § 18C and the lack thereof in § 18B. Nor has the defendant provided us with an explanation. We conclude that there is no significant difference as related to any defined minimum term, as both statutes include the relevant phrase "not less than," which, as discussed supra, operates to create a minimum term.

Thus, Brown ought to have controlled the outcome in Hines. But even setting Brown aside, the reasoning in Hines does not withstand scrutiny. The Legislature need not use the word "mandatory" to render its clear commands operative. See Brown, 431 Mass. at 776 ("The Legislature . . . is not restricted to one means of expression; and in actual practice it has not so restricted itself"). The Hines court did not explain why the absence of the word "mandatory" was significant. Section 18B plainly restricts the minimum term of a sentence imposed consistently with § 24, and further provides that such minimum term must be served as

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a mandatory minimum sentence by prohibiting "probation, parole, furlough, ... work release[, and] deduction[s] . . . for good conduct." Hines, 449 Mass. at 190-191, quoting G. L. c. 265, § 18B. There was no reason in Hines to interpret § 18B other than in accordance with its plain meaning. The absence of the word "mandatory" is irrelevant.

The fatal problem with the portion of Hines interpreting the phrase "for not less than five years" is that it renders that phrase meaningless. We are obligated to avoid such constructions. See Montarvo, 486 Mass. at 538, quoting Ropes & Gray LLP v. Jalbert, 454 Mass. 407, 412 (2009) ("A statute should be construed so as to give effect to each word ..."); Commonwealth v. Vega, 449 Mass. 227, 231 (2007), citing Wolfe v. Gormally, 440 Mass. 699, 704 (2004). We attempted to address this deficiency in Hines by reasoning that the language in § 18B that we had determined not to have the effect of requiring a five-year minimum State prison sentence instead had the effect of marking the underlying offense as a felony. See Hines, 449 Mass. at 191; G. L. c. 274, § 1 ("A crime punishable by . . . imprisonment in the state prison is a felony"). Such a construction, however, would still render the five-year minimum inoperative in a way our rules of statutory construction do not permit and risks rendering language contained across a wide range of our sentencing statutes obsolete.

For example, the statute at issue in Hines, G. L. c. 265, § 18B, provided that an individual convicted of an offense under the statute "shall . . . be punished by imprisonment in the state prison for not less than five years; provided, however, that [if certain conditions are met], such person shall be punished by imprisonment in the state prison for not less than ten years" (emphasis added). If the only meaning of language imposing a State prison sentence for not less than a certain number of years is to designate an offense as a felony punishable by incarceration in State prison for at least one year under § 24, there could be no discernible reason for the Legislature to provide for two separate and distinct minimum terms in State prison under a single statute. After all, the import of both the "not less than five years" and "not less than ten years" language would only require a judge to sentence a defendant to a term of incarceration of not less than one year.

Further, the Legislature could have marked the underlying offense in § 18B as a felony by mandating only that persons convicted thereunder "shall be punished by imprisonment in the State prison" (omitting "for not less than five years"). The Legislature

Page 613

knows how to do this. See, e.g., G. L. c. 265, § 19 (a) (persons convicted of unarmed robbery "shall be punished by imprisonment in the [S]tate prison for life or for any term of years" [emphasis added]). Thus, this interpretation of what the Legislature sought to accomplish with these provisions still problematically leaves their crucial language ("for not less than five years") meaningless and risks similarly invalidating all offense-specific minimum terms of more than one year in State prison. [Note 33] We must avoid this interpretation. See Montarvo, 486 Mass. at 538, citing Ropes & Gray LLP, 454 Mass. at 412.

In Commonwealth v. Thomas, 484 Mass. 1024, 1026 n.8 (2020), we relied on Hines to conclude that § 18B did not impose a "mandatory minimum sentence of five years for a first offense," but instead should be read to impose a two-year minimum term and at least a five-year maximum term. As in Hines, the Thomas court failed to reconcile that conclusion with our rejection in Brown, 431 Mass. at 773, 775, of the argument that "not less than" language "establishes the minimum number of years the judge could impose as the higher (maximum) number of years of the sentence" because such an interpretation would be "in direct conflict with the plain language of the statute." [Note 34] As in Hines, Brown should have controlled in Thomas.

In short, to the extent that we held in Hines and concluded in Thomas that statutory language providing that a State prison sentence must be "for not less than X years" may be ignored if

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neither the word "mandatory" nor an upper limit on the length of the sentence also appears in the provision, that holding is erroneous, for it is contrary to our obligation to construe statutes in line with their plain meaning and so as to effectuate faithfully Legislative intent. See Sharris v. Commonwealth, 480 Mass. 586, 594 (2018).

As the court did in Hines, the defendant erroneously distinguishes Brown to argue that we should not read § 178H (a) (2) to impose a minimum term of incarceration of five years where the statute does not provide a maximum term of incarceration. [Note 35] The defendant notes that a maximum term was included in the statute at issue in Brown, which we determined to impose a mandatory minimum sentence. [Note 36] Setting aside Hines, this argument is unavailing. The meaning of the phrase "not less than" is unaffected by whether it is followed by "or more than" language.

Further, to the extent that the defendant suggests that § 178H (a) (2) may be invalid for its lack of a maximum term, it is well settled that where a sentencing statute imposes a minimum but not a maximum sentence, "the maximum sentence permitted by the Legislature is presumed to be a life term." Logan, 367 Mass. at 657. See Berardi, 88 Mass. App. Ct. at 467 (because § 178H [a] [2] is presumed to carry life term, defendant tried thereunder entitled to full number of peremptory challenges required by Mass. R. Crim. P. 20 [c] [1], 378 Mass. 890 [1979]). See also Crayton, 93 Mass. App. Ct. at 251-252 (defendant tried under statute similarly presumed to carry life term entitled to full number of peremptory challenges).

The defendant also argues that a minimum term of incarceration of five years under § 178H (a) (2) could result in the punishment of "passive" conduct and be so disproportionate to the conduct at issue as to render such sentence unconstitutional. However, because the issue is not raised by the facts presented, "we do not here decide whether in a particular case a sentence imposed pursuant to the broad" sentencing range in § 178H (a) (2) "might be so disproportionate to the offense as to constitute cruel

Page 615

[or] unusual punishment." Logan, 367 Mass. at 657, citing McDonald v. Commonwealth, 173 Mass. 322, 328 (1899), aff'd, 180 U.S. 311 (1901).

In Logan, 367 Mass. at 656-657, this court examined whether G. L. c. 269, § 10, as amended through St. 1972, c. 312, § 5 (unlawful firearms possession), was unconstitutionally vague because it failed to specify "a maximum limit on sentences thereunder." The court held that the statute was not unconstitutionally vague because, "[u]nder such a statute[,] the maximum sentence permitted by the Legislature is presumed to be a life term." Id. at 657. The defendant waived argument on the reported questions addressing whether the statute constituted cruel or unusual punishment, or cruel and unusual punishment, and the Logan court noted in passing that it did not decide whether any specific sentence imposed "pursuant to the broad authorization in G. L. c. 269, § 10, might be so disproportionate to the offense as to constitute cruel and unusual punishment." Id. at 656-657. Similarly here, although § 178H (a) (2) presumably allows for a maximum term of life, we cannot say that a life sentence imposed under § 178H (a) (2) would be constitutional.

We observe, however, that because a person only may be convicted of failure to register under G. L. c. 6, § 178H (a), if such failure is "knowing[]," the defendant's argument that a mandatory minimum would punish an offender for "passive conduct" must fail. "'Knowingly' when used in a criminal statute 'commonly imports a perception of the facts requisite to make up the crime.'" Commonwealth v. Lawson, 46 Mass. App. Ct. 627, 629-630 (1999), quoting Commonwealth v. Altenhaus, 317 Mass. 270, 273 (1944). Thus, in a prosecution for a violation of G. L. c. 6, § 178H (a), "the Commonwealth [is] required to prove that the defendant knew of the requirement that he register but did not do so despite this knowledge. . . . Absent a defendant's conscious disregard of the information necessary to provide him with the requisite knowledge, the Commonwealth cannot meet its burden merely by establishing that the knowledge was available to the defendant" (emphasis added; citation omitted). Commonwealth v. Ramirez, 69 Mass. App. Ct. 9, 12 (2007).

Conclusion. For the reasons discussed supra, we answer both reported questions, "No." Under § 178H (a) (2), a judge may sentence a defendant convicted of failure to register as a sex offender, subsequent offense, to probation or to a term of

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incarceration in State prison; if sentencing a defendant to a term of incarceration in State prison, a judge must impose an indeterminate sentence, the minimum term of which cannot be less than five years.

So ordered.

BUDD, C.J. (concurring). General Laws c. 6, § 178H (a) (2) (§ 178H [a] [2]), states in relevant part that a "second and subsequent conviction [for failure to register as a sex offender] shall be punished by imprisonment in the [S]tate prison for not less than five years." The reported questions ask, in essence, whether § 178H (a) (2) permits a State prison sentence for a period of less than five years. I agree with the court that the statutory language plainly requires that any State prison sentence imposed pursuant to this section must have a minimum term of incarceration of five years or greater. [Note Budd-1] See Sharris v. Commonwealth, 480 Mass. 586, 594 (2018). I further agree that, to reach this commonsense conclusion, Commonwealth v. Hines, 449 Mass. 183 (2007), must be overruled to the extent that it ignores the plain meaning of similar sentencing language in G. L. c. 265, § 18B.

However, the court goes beyond the reported questions to conclude that § 178H (a) (2) allows a judge to impose a sentence of probation in lieu of a sentence of incarceration. Generally, I believe the better practice is to focus on the issues reflected in the reported questions. [Note Budd-2] Here, although I do not take a position on the conclusion the court reaches regarding the availability of probation under § 178H (a) (2), I am troubled by its methodology.

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In the course of answering questions not presented, [Note Budd-3] the court creates an interpretive presumption concerning the availability of probationary sentences that departs from the plain meaning of statutory language and is not grounded in legislative intent. Ante at 596, 599-600, 601. The court then applies that presumption to § 178H (a) (2). Id. at 603-604, note 25. In so doing, the court seems to disregard basic rules of statutory interpretation, thereby risking a violation of art. 30 of the Massachusetts Declaration of Rights. I therefore cannot join those portions of the opinion.

Today, the court declares that it will interpret statutes providing that certain offenders "shall be punished by imprisonment . . . for not less than [X] years" not to require that those offenders be punished by imprisonment unless the statute additionally contains language like "nor shall any such offenders be eligible for probation." Ante at note 9, 599-600. The court reasons that, because the Legislature included express prohibitions on probation in some sentencing statutes, the absence of an express prohibition on probation in other sentencing statutes renders ambiguous whether the Legislature intended that probation be available under those statutes that do not expressly mention it. Id. at 599-600. Without considering any other sources of legislative intent, the court concludes that it must resolve this supposed ambiguity by interpreting probation to be available under all such statutes. Id.

This reasoning disregards the plain meaning of "shall be punished by imprisonment." See Commonwealth v. Newberry, 483 Mass. 186, 192 (2019), quoting Sisson v. Lhowe, 460 Mass. 705, 708 (2011) (statute's plain language is "'the principal source of insight' into the intent of the Legislature"); Commonwealth v. Williamson, 462 Mass. 676, 679 (2012), quoting Commonwealth

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v. Young, 453 Mass. 707, 713 (2009) (when interpreting statutory language, we "start 'with the language of the statute itself and presume . . . that the Legislature intended what the words of the statute say'" [quotation omitted]). Considered on its own, this phrase conveys the Legislature's intent that offenders be punished by imprisonment. See Commonwealth v. Montarvo, 486 Mass. 535, 537 (2020) (interpreting habitual offender statute, G. L. c. 279, § 25 [§ 25]); Commonwealth v. Zapata, 455 Mass. 530, 535 (2009) (interpreting armed home invasion statute, G. L. c. 265, § 18C [§ 18C]). Indeed, we previously have acknowledged that "probation appears to be unavailable" where a statute contains such language and provides for no alternative sentence. Montarvo, supra. See Zapata, supra (such language "would suggest a legislative intent that a defendant convicted under the statute could be sentenced to only a term of incarceration, not probation").

In the course of explaining its new interpretive presumption, however, the court neither considers the plain meaning of the phrase "shall be punished by imprisonment" nor addresses the fact that we previously have acknowledged that plain meaning. Rather, the court takes the position that Montarvo, supra, and Zapata, supra, stand for the proposition that, in statutes that explicitly mandate imprisonment, the absence of a prohibition on probation creates ambiguity as to whether offenders may be sentenced to probation instead of imprisonment. Ante at 599. The court misconstrues these cases.

In both Montarvo and Zapata, we interpreted the statute at issue (§ 25 [a] and § 18C, respectively) to permit probation in lieu of incarceration because either the history or the language of the statute made its facially plain command that offenders "shall be punished by imprisonment" ambiguous. See Montarvo, 486 Mass. at 537-538; Zapata, 455 Mass. at 535. We then resolved this ambiguity favorably to defendants pursuant to the rule of lenity. See Montarvo, supra at 542-543; Zapata, supra.

Contrary to the court's suggestion, in neither case was this ambiguity created by the mere absence of language prohibiting probation. Ante at 596, note 9. Rather, in Zapata, 455 Mass. at 535 n.7, the court considered the absence of such language significant only because "the unique legislative history" of § 18C made it so. Specifically, the Legislature's decision to remove such language from a previous version of § 18C created the ambiguity. See id. at 531-535. Similarly, in Montarvo, 486 Mass. at 537-538,

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the court considered significant the absence of language prohibiting probation in § 25 (a) only because such language was present in § 25 (b). It was the "juxtaposition" of § 25's simultaneously enacted subsections that made § 25 (a) ambiguous, id. at 537, not the absence of language precluding probation in § 25 (a) considered on its own.

The court suggests that Montarvo can be extended such that the Legislature's decision to include a prohibition on probation in some sentencing statutes should be considered evidence that the Legislature intended, conversely, that probation be available under any sentencing statute without a prohibition on probation. Ante at 599-600. However, the "maxim of negative implication," [Note Budd-4] relied on (properly in my view) in Montarvo, generally is applied only to simultaneously enacted provisions within a single statute, where one may assume that the Legislature considered the provisions together when it adopted the statutory language. See Montarvo, 486 Mass. at 538. See also Lindh v. Murphy, 521 U.S. 320, 330 (1997) ("negative implications raised by disparate provisions are strongest when the portions of a statute treated differently had already been joined together and were being considered simultaneously when the language raising the implication was inserted"). By contrast, little reasonably may be inferred about legislative intent from the absence of language in one sentencing statute that exists in some other sentencing statute, where the statutes were enacted at different times and concern different crimes. [Note Budd-5] Compare, e.g., Gomez-Perez v. Potter, 553 U.S. 474, 488 (2008) (rejecting reasoning from negative implication where disparate statutory provisions "were enacted separately and are couched in very different terms"); Commonwealth v.

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Garvey, 477 Mass. 59, 65 (2017) (likewise, "where the [sentencing] statutes . . . vary significantly" in "language and structure").

Notably, "[a]s with all aids for interpretation," the maxim of negative implication "is subordinate to the primary rule that legislative intent governs the interpretation of a statute." 2A N.J. Singer & J.D. Shambie Singer, Statutes and Statutory Construction ? 47:23 (7th ed. 2014 & Nov. 2021 update) (Sutherland). See Globe Newspaper Co., petitioner, 461 Mass. 113, 119 (2011) (rejecting interpretation based on negative implication given absence of "evidence that the Legislature intended this result"). Because "the language of the statute" is "'the principal source of insight' into the intent of the Legislature," Newberry, 483 Mass. at 192, quoting Sisson, 460 Mass. at 708, the plain meaning of the language in the statute ordinarily should trump "negative implications" from language not in the statute. See Sutherland, supra at § 47:25 (maxim of negative implication "is an interpretive tool useful to remind courts first to look only to a statute's literal language to determine legislative intent" [emphasis added]).

Thus, the mere absence of a prohibition on probation does not overcome our default presumption that when the Legislature directs that offenders "shall be punished by imprisonment," it means exactly what it says. See Williamson, 462 Mass. at 679. Compare Commonwealth v. Brown, 431 Mass. 772, 775-776 (2000) (interpreting statute to impose twenty-year mandatory minimum sentence as plainly required by its language, notwithstanding absence in statute of language customarily used to impose mandatory minimum sentences). Whereas Montarvo and Zapata support the proposition that such facially clear language may be rendered ambiguous on careful examination of a statute's text, purpose, and history, see Montarvo, 486 Mass. at 537-542; Zapata, 455 Mass. at 531-535, they do not support the proposition that such facially clear language presumptively is ambiguous. This presumption, announced by the court today, is patently backward. See Newberry, 483 Mass. at 192; Williamson, supra. By ignoring the plain language of these sentencing statutes in a systematic way, the court encroaches upon the Legislature's authority "to establish criminal sanctions," raising "a serious question concerning the separation of powers." Commonwealth v. Jackson, 369 Mass. 904, 922 (1976). See Ex parte Millbrook, 304 So. 3d 202, 205 (Ala. 2020) ("Adhering to the plain meaning of a statute ensures that this Court complies with its constitutional mandate . . . [to] say[] what the law is without overstepping its

Page 621

role and legislating from the bench"); Senjab v. Alhulaibi, 497 P.3d 618, 620 (Nev. 2021), quoting ASAP Storage, Inc. v. Sparks, 123 Nev. 639, 653 (2007) ("Statutes should be given their plain meaning whenever possible; otherwise . . . the constitutional separation-of-powers doctrine is implicated").

I share the concern voiced by Justice Wendlandt, post at 621-622, 627-629, and echoed by the court, ante at notes 15, 25, that mandatory minimum sentences risk unduly harsh penalties for any individual and contribute to the unjustly disproportionate rate of incarceration for Black and brown folks. But this concern no more enables this court to presume ambiguity where sentencing language is clear than it enables us to wholly ignore clear sentencing language. We are bound to interpret statutes to faithfully effectuate legislative intent, see Commonwealth v. Gomes, 483 Mass. 123, 127 (2019), even where we consider the Legislature's policy choice unwise or unjust, see Commonwealth v. Laltaprasad, 475 Mass. 692, 701-703 (2016).

Because the court's newly announced blanket presumption regarding the availability of probation results from an apparent misapplication of our case law and additionally may violate art. 30, I can endorse neither the presumption nor the application of it to § 178H (a) (2). [Note Budd-6] Accordingly, I concur in the court's answers to the reported questions, ante at 605, in its decision to overrule Hines, ante at 609-613, and in its disposal of the defendant's challenge to the constitutionality of § 178H (a) (2), ante at 614-615. I cannot, however, join the rest of the opinion.

WENDLANDT, J. (dissenting). At a time when we are beginning to understand that statutes imposing mandatory minimum sentences are resulting in the disproportionate incarceration of Black and brown defendants in our Commonwealth, we ought not to further strip judges of discretion in sentencing. There can be no doubt that the court's decision to overrule Commonwealth v. Hines, 449 Mass. 183 (2007), does just that. While making "plain the meaning

Page 622

of certain language" in our own sentencing jurisprudence is an auspicious and laudable goal, ante at 591, on balance I believe it should yield to the principle of stare decisis, especially where (as here) fidelity to that principle is consistent with both legislative inaction in the face of our prior construction of sentencing statutes and our commitment to racial justice. [Note Dissent-1] Accordingly, I dissent.

To be sure, interpreting the phrase "for not less than" a specified number of years in an offense-specific statute to be the minimum term under the indeterminate sentencing statute, G. L. c. 279, § 24, [Note Dissent-2] has an undeniable mathematical elegance. [Note Dissent-3] And, if we were writing on a tabula rasa, the court's analysis presents perfectly persuasive, plain statutory construction. The court's attempt to carve a framework to instruct the Legislature as to how to implement mandatory minimum sentences in an area that has not been the beacon of clarity perhaps is admirable. Ante at 591-603. Still, I would not depart from our previous case-by-case

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approach from which certain standards emerge. [Note Dissent-4] This has been the "settled" law to which stare decisis counsels fealty.

"Stare decisis -- in English, the idea that today's [c]ourt should stand by yesterday's decisions -- is 'a foundation stone of the rule of law.'" Kimble v. Marvel Entertainment, LLC, 576 U.S. 446, 455 (2015), quoting Michigan v. Bay Mills Indian Community, 572 U.S. 782, 798 (2014). It "promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process" (citation omitted). Knick v. Scott, 139 S. Ct. 2162, 2189 (2019) (Kagan, J., dissenting). To respect it "means sticking to some wrong decisions," on the justification that "it is usually 'more important that the applicable rule of law be settled than that it be settled right.'" Kimble, supra, quoting Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932) (Brandeis, J., dissenting).

Stare decisis "carries enhanced force" in connection with our construction of a statute, where a decision "effectively become[s] part of the statutory scheme." Kimble, 576 U.S. at 456. The Legislature is, of course, free to amend a statute where it concludes that our construction of its intent is wrong. Instead of taking it upon ourselves to revisit our prior jurisprudence on the basis that we now think the prior court's reasoning is no longer persuasive, we should recognize that when it comes to matters of

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statutory construction "critics of our ruling can take their objections across the street, and [the Legislature] can correct any mistake it sees." Id. Here, we are faced squarely with a situation in which the Legislature can alter our prior holding and has not done so.

This last point ought to guide our decision in this case because, nearly fifteen years ago in Hines, we specifically addressed an offense-specific statute with precisely the same language as the one at issue in the present case; it provided that the defendant shall be sentenced "for not less than" a specified number of years in State prison and did not provide in addition a maximum sentence. See Hines, 449 Mass. at 191-192. We concluded that such language is ambiguous in light of the indeterminate sentencing statute, which requires a sentencing judge to set both a maximum term and minimum term in State prison. See note 2, supra. Accordingly, we held that, absent a statutory maximum term, the language "for not less than" a specified number of years did not preclude a judge from sentencing a defendant to a number of years in State prison that was less than the number set forth in such an offense-specific statute. [Note Dissent-5] Hines, supra.

In so doing, we specifically distinguished the offense-specific statute that used the phrase "for not less than" a specified number of years but not did not specify a maximum term from the statute at issue in Commonwealth v. Brown, 431 Mass. 772, 776-777 (2000), that set forth both a minimum term and a maximum term. In other words, we rejected the very argument adopted by the court that "the presence or absence of a maximum term is irrelevant" to how we construe minimum term language. Ante at 601-602. See Hines, 449 Mass. at 191 n.4 (rejecting argument that statute that provided "for not less than" specified number of years is "essentially the same" as statute at issue in Brown, 431 Mass. at 776-777, which provided both maximum and minimum term using phrase "for not less than"). We expressly stated that

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the absence of a maximum term was dispositive. See id. (distinguishing statute in Brown, setting forth "two terms, both a maximum and a minimum term," from statute setting forth only that offender shall be punished "for not less than five years"). We also concluded that the absence of the phrase "shall not be reduced to less than" the specified number of years in the offense-specific statute bolstered our conclusion that "for not less than" the specified number of years did not strip the judge of sentencing discretion. [Note Dissent-6] See id. Indeed, just two years ago, citing to Hines, 449 Mass. at 191-192, we confirmed unanimously that "for not less than five years" permits "[a] judge, for instance, [to] sentence a defendant to not less than two years and not more than five years." Commonwealth v. Thomas, 484 Mass. 1024, 1026 n.8 (2020).

Today, the court overrules Hines, adopting the very same arguments we rejected in that precedential case. [Note Dissent-7] See ante at

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609-613. Reversing course, the court now holds that the phrase "for not less than" a specified number of years (even without a maximum term and without the additional language "shall not be reduced to less than," each of which we found so critical in Hines) sets the minimum term to which a judge, seeking to incarcerate a defendant, must sentence a defendant under the indeterminate sentencing statute. [Note Dissent-8]

Of course, "[w]hat we can decide, we can undecide," Kimble, 576 U.S. at 465; however, where "the Legislature is presumed to be aware of judicial decisions that have consistently interpreted these statutes in the traditional fashion," Brown, 431 Mass. at 777, and yet has not changed the statute to reflect an intent contrary to our construction, I would not be so quick to alter course, upsetting recent, unanimous decisions. See, e.g., Thomas, 484 Mass. at 1026 n.8; Commonwealth v. Rodriguez, 482 Mass. 366, 370 n.3. (2019).

Given the absence of legislative action in response to our case law, discussed supra, it is hardly a violation of art. 30 of the Massachusetts Declaration of Rights to refuse to abandon our jurisprudence in favor of stare decisis. See ante at note 25, 609. To the contrary, the absence of legislative action addressing our fifteen year old decision in Hines suggests the Legislature has continued to use the phrase "for not less than" a specified number of years (without additionally specifying a maximum term) to indicate precisely what we held it to mean in Hines -- neither a "minimum term" nor a "mandatory minimum term." [Note Dissent-9] See Kimble,

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576 U.S. at 456 (noting importance of stare decisis in connection with interpretation of statutes, where a decision "effectively become[s] part of the statutory scheme").

Indeed, the Legislature revisited the very same offense-specific statute at issue in Hines in 2014 (seven years after our holding), and left unchanged the relevant "for not less than" language. See 2014 House Doc. No. 4376. [Note Dissent-10] Just last year, we observed that such legislative inaction "is a strong indication that the Legislature approved of the court's statutory construction of [this] provision[]." Commonwealth v. Bohigian, 486 Mass. 209, 216 (2020). In doing so, we echoed the same observation made in 2007, the year Hines was decided. See Commonwealth v. Colturi, 448 Mass. 809, 812 (2007) (because we presume Legislature is aware of our prior decisions, "reenact[ment of] statutory language without material change" implies adoption of prior construction).

Significantly, the decision to overrule our 2007 decision in Hines, which we affirmed in 2019 in Rodriguez, and to overrule our 2020 decision in Thomas, see ante at 613-614, comes at a time when the available data show that stripping judges of discretion in sentencing has resulted in Black and brown defendants being disproportionately represented in the Commonwealth's population of incarcerated people. [Note Dissent-11] Just last term, the Criminal Justice Policy Program at Harvard Law School issued a report,

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concluding that mandatory minimum sentences are a dominate cause of the stark discrepancies between outcomes for white defendants and those for Black and brown defendants. [Note Dissent-12]

The court correctly notes that, "[w]here the reasons for departing from precedent outweigh the factors that favor adherence to it, we can and should acknowledge our past mistakes and cease perpetuating them." Ante at 609-610, citing Franklin v. Albert, 381 Mass. 611, 617 (1980). See Franklin, supra at 617-619 (overruling prior case law regarding accrual for purposes of statute of limitations applicable to medical malpractice actions). In doing so in Franklin, however, we were guided by the "manifest injustice" of continuing to abide by the prior decision. Id. at 618 (revisiting prior rule on ground that it was manifestly unjust to permit statute of limitations to run before "blameless" patient reasonably could know of injury). We stated, "This court is not barred from departing from [the prior] rule if persuaded that the values in so doing outweigh the values underlying stare decisis." Id. at 617. Here, unlike in Franklin, the value of racial justice to which we all should be committed and the value of stare decisis coincide. We need not abandon the latter to achieve the former. [Note Dissent-13]

The court's decision to overrule Hines further strips judges of sentencing discretion, requiring judges to choose between probation and a State prison term "for not less than" the prescribed number of years, "offering a sentencing judge in some cases a Hobson's choice between probation and a mandatory term of [a prescribed number of] years in prison." Commonwealth v. Montarvo, 486 Mass. 535, 542 (2020). [Note Dissent-14] The panoply of choices previously available under our sentencing jurisprudence is now

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much more constrained.

In light of the foundational significance of stare decisis in connection with our decisional law construing statutes, as well as the Legislature's inaction to correct any perceived misconstruction of its intent, and because we ought not be blind to the impact of today's "clarifications" on Black and brown defendants, I dissent.