author: BUDD, J.

text:
    COMMONWEALTH v. Bernie RUIZ.
    SJC-12404
    Supreme Judicial Court of Massachusetts, Suffolk..
    Argued May 7, 2018 Decided October 11, 2018
    David L. Sheppard-Brick, Assistant District Attorney, for the Commonwealth.
    Patrick A. Michaud for the respondent.
    Present: Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ.
   BUDD, J.

Once again we have occasion to interpret G. L. c. 279, § 25 (a ) ( § 25 [a ] ), which requires that a "habitual criminal" -- a defendant who has been convicted of a felony and has two prior convictions resulting in State or Federal prison sentences of three years or more -- be sentenced to the maximum term provided by law on the underlying conviction. We conclude that, although the predicate convictions must arise from separate incidents or episodes, Commonwealth v. Garvey, 477 Mass. 59, 66, 76 N.E.3d 987 (2017), the offenses need not be separately prosecuted. We further conclude that Mass. R. Crim. P. 15 (a) (1), as appearing in 474 Mass. 1501 (2016) ( rule 15 [a] [1] ), and G. L. c. 278, § 28E ( § 28E ), grant the Commonwealth a right to appeal from the dismissal of the sentence enhancement portion of an indictment, and thus we overrule in part Commonwealth v. Pelletier, 449 Mass. 392, 395-396, 868 N.E.2d 613 (2007).

Background. In March, 2016, a grand jury returned eleven indictments against the defendant for a variety of charges, including armed assault with intent to murder, in connection with an incident alleged to have occurred on February 17, 2016. All but two of these indictments carried sentencing enhancements under § 25 (a ).

The predicate convictions supporting the habitual criminal portions of the indictments were the result of guilty pleas tendered by the defendant in 2008. The defendant pleaded guilty to separate charges of assault and battery by means of a dangerous weapon arising from two separate criminal episodes, which occurred in August and September of 2006.

In 2008, the defendant was indicted for both offenses by the same grand jury and pleaded guilty to both charges in one proceeding. The defendant was sentenced to a term of from four to six years in State prison on each charge of assault and battery by means of a dangerous weapon, each sentence set to run concurrently.

Because the judge below concluded that the defendant's predicate convictions represented a single "incident" under § 25 (a ), he allowed the defendant's motion to dismiss the § 25 (a ) sentence enhancement charges associated with the March, 2016, indictments. The Commonwealth filed a timely notice of appeal in the Superior Court, but the Superior Court clerk's office would not compile a record for appeal under rule 15 (a) (1) in light of our decision in Pelletier, 449 Mass. at 396, 868 N.E.2d 613, in which we held that the Commonwealth may not take an interlocutory appeal from the dismissal of only the sentence enhancement portion of a complaint. Thereafter, the Commonwealth filed a petition for relief pursuant to G. L. c. 211, § 3. A single justice of this court denied the Commonwealth's petition, and the Commonwealth appealed to the full court.

Discussion. 1. Applicability of G. L. c. 279, § 25 (a). In reviewing the single justice's determination to deny the Commonwealth's petition brought under G. L. c. 211, § 3, this court looks to whether "the single justice abused his or her discretion or made a clear error of law." Rogan v. Commonwealth, 415 Mass. 376, 378, 613 N.E.2d 920 (1993). Here, the Commonwealth asserts an error of law.

Matter of a Grand Jury Subpoena, 447 Mass. 88, 90, 849 N.E.2d 797 (2006). Because the question for review is a matter of statutory interpretation, we review it de novo. Garvey, 477 Mass. at 61, 76 N.E.3d 987.

General Laws c. 279, § 25 (a ), provides:

"Whoever is convicted of a felony and has been previously twice convicted and sentenced to [S]tate prison or [S]tate correctional facility or a [F]ederal corrections facility for a term not less than [three] years ... shall be considered a habitual criminal and shall be punished ... for such felony for the maximum term provided by law."

The statute requires that a defendant be sentenced to the maximum sentence if found guilty of the underlying felony provided that he or she has at least two qualifying prior convictions; however, § 25 (a ) does not indicate whether those predicate convictions must have stemmed from separate prosecutions and sentencings.

The defendant argues that the judge properly dismissed the sentence enhancements because, as he pleaded guilty to a set of charges that were combined and prosecuted together, the convictions cannot be counted separately for the purposes of § 25 (a ). Conversely, the Commonwealth contends that § 25 (a ) does not require that the predicate convictions arise from charges separately prosecuted. See Commonwealth v. Hall, 397 Mass. 466, 468-469, 492 N.E.2d 84 (1986) (defendant may be convicted under statute where two predicate convictions arise out of unrelated incidents disposed of on same date with identical concurrent sentences).

As the statute is "simply silent" on this matter, "we consider that section in the context of the over-all objective the Legislature sought to accomplish." National Lumber Co. v. LeFrancois Constr. Corp., 430 Mass. 663, 667, 723 N.E.2d 10 (2000). Our review of § 25 (a )'s historical development supports the conclusion that the legislative objective of § 25 (a ) is to punish all offenders who have prior convictions stemming from two or more separate and distinct criminal episodes, and that the Legislature specifically rejected the requirement of separate and sequential prosecutions for predicate offenses.

The "Legislature developed a series of incarnations of repeat offender statutes, beginning in 1818, before enacting what is now § 25 (a )." Garvey, 477 Mass. at 62, 76 N.E.3d 987. In Commonwealth v. Phillips, 11 Pick. 28, 34, 28 Mass. 28 (1831), this court concluded that, under the 1818 incarnation of the statute (which was also silent as to whether charges or indictments must have been separately prosecuted to count as individual convictions), two predicate convictions associated with two prior distinct criminal episodes that were brought and tried during the same term of the same court were "two convictions, within the meaning of the statute." See Ex Parte Seymour, 14 Pick. 40, 40-41, 31 Mass. 40 (1833) (period of liberty between predicate convictions not required).

In the following year, the Legislature amended the statute, superseding this court's opinion in Phillips by expressly requiring that there should be two separate convictions and sentences, and two distinct discharges from prison, to bring a defendant within the scope of the statute. See St. 1832, c. 73, § 1. See also St. 1833, c. 85, §§ 1-2 (reenacting statute with substantiality of 1832 requirements); Phillips v. Commonwealth, 3 Met. 588, 591, 44 Mass. 588 (1842) (1831 interpretation "probably gave rise to the statute passed at the next session of the legislature"); Commonwealth v. Mott, 21 Pick. 492, 500, 38 Mass. 492 (1839) ("One great object of the [1832] statute undoubtedly was, to declare that by two convictions, should thereafter be understood, sentences and commitments at two distinct times and discharges therefrom ... instead of two sentences at the same term of a court"); Ex Parte Stevens, 14 Pick. 94, 96, 31 Mass. 94 (1833) (explaining intent and purpose of 1832 statute); Ex Parte Seymour, 14 Pick. at 41 note (noting that statutory revision added requirement that charges be sequential).

In 1836, however, the Legislature again amended the repeat offender statute, eliminating the requirements that had been added in 1832 requiring separate convictions and a period of liberty between the imprisonment for one offense and the commission of the next. St. 1836, c. 4, §§ 17, 20. Although the Legislature repealed the repeat offender statute in 1853, see St. 1853, c. 375, it enacted a version substantially similar to the earliest version of the statute in 1887, again omitting the 1832 requirements that predicate offenses occur as a result of separate convictions and occur with a period of liberty between them. St. 1887, c. 435, § 1.

We have concluded that the Legislature's modifications to the statutory requirements of what is now § 25 (a ) in light of our decisions are highly germane to determining its intent. See Commonwealth v. Richardson, 175 Mass. 202, 207, 55 N.E. 988 (1900).

The Legislature's decision to enact a statute expressly requiring separate prosecutions of predicate offenses with a period of liberty between those prosecutions, followed by the repeal and replacement of that statute with a version that does not contain those requirements, "reflect[s] a conscious decision by the Legislature to deviate from the standard embodied in the [previous] statute." Commonwealth v. Resende, 474 Mass. 455, 466, 52 N.E.3d 1016 (2016), quoting Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 433, 446 N.E.2d 1051 (1983). Thus, here the Legislature has rejected the theory that more severe punishment is only appropriate when there have been two separate and distinct encounters with the criminal justice system that have failed to result in the theoretically beneficial effects of penal discipline. See Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S. 519, 533-535, 133 S.Ct. 1351, 185 L.Ed.2d 392 (2013) (examining statutory history to determine statute's meaning).

In 2012, the Legislature reenacted § 25 (a ) as part of criminal justice reform legislation, also inserting new subsections removing the possibility of parole for "habitual offenders" of particular offenses enumerated in the statute. G. L. c. 279, § 25 (b ) - (d ), inserted by St. 2012, c. 192, § 47. Under those newly inserted provisions, unlike in § 25 (a ), the Legislature expressly required that predicate offenses have been "separately brought and tried." See G. L. c. 279, § 25 (b ) ( § 25 [b ] ). That the Legislature reenacted the same statute in 2012 without including the requirement that the predicate offenses be separately brought and tried under § 25 (a ), yet included that requirement under § 25 (b ), provides further support that the Legislature did not intend to modify prior assumptions about this statute to include this requirement. See People v. Braswell, 103 Cal.App. 399, 407-408, 284 P. 709 (1930) (where Legislature required predicate convictions to be "separately brought and tried" for one sentence enhancement scheme but not another, "legislature may have considered ... prior convictions [in latter scheme] to have been sufficient to have constituted a man a[ ] habitual criminal, whether or not they were upon charges separately brought and tried"). See also Commonwealth v. Wimer, 480 Mass. 1, 5, 99 N.E.3d 778 (2018) (interpreting statutory language requiring sequential convictions).

The defendant suggests that we should construe § 25 (a ) consistently with our interpretation of G. L. c. 269, § 10G ( § 10G ), the armed career criminal act. That statute also requires sentence enhancements under particular conditions, and is similarly silent as to whether the prior convictions must have stemmed from separate prosecutions and sentences. In Resende, 474 Mass. at 469, 52 N.E.3d 1016, we concluded that § 10G requires separate and sequential prosecutions in order to count prior convictions individually; however, § 25 (a ) and § 10G stand on very different footing.

Section 10G, the Massachusetts analog to the Federal armed career criminal act, 18 U.S.C. § 924(e), was enacted relatively recently (in 1998), and its legislative roots are not nearly as extensive as those of § 25 (a ). See St. 1998, c. 180, § 71, inserting G. L. c. 269, § 10G. As we noted in Resende, the legislative history of § 10G is not particularly helpful on the issue whether the statute requires each previous conviction to be separately prosecuted to count as a predicate offense. Id. at 463-464, 52 N.E.3d 1016. Instead we looked to "the Legislature's departure from the language used in the Federal [statute],[ ] the analysis of cases from other jurisdictions, and the rule of lenity" to determine that § 10G requires separate and sequential prosecutions of predicate offenses. Id. at 464, 52 N.E.3d 1016.

In contrast, the purpose of § 25 (a ), as made clear from the statutory history, is to punish all repeat offenders, and to require prior convictions merely as proof of guilt of prior crimes rather than proof that a defendant's prior penal treatment has not been effective at reforming a criminal offender. See Richardson, 175 Mass. at 207, 55 N.E. 988 (describing statute's purpose); Ex Parte Seymour, 14 Pick. at 41-42 (same). See also Mott, 21 Pick. at 498 (purpose of period of liberty in 1833 statute was to ensure sentence enhancement occurs only "after the salutatory and reforming influence of two separate commitments to the penitentiary, and two discharges therefrom by pardon or execution of the whole sentence, had been tried in vain").

The Commonwealth's sentence enhancement statutes vary in language, structure, and intent. Here, a review of the statutory history of what is now § 25 (a ) confirms that predicate convictions arising from separate qualifying criminal incidents or episodes need not be separately prosecuted in order for a person to be considered a habitual criminal pursuant to § 25 (a ). Hall, 397 Mass. at 468-469, 492 N.E.2d 84.

2. Right of appeal. As discussed supra, when the Commonwealth sought to appeal from the dismissal of the sentence enhancement portions of the indictments, the Superior Court clerk's office indicated that it would take no action without an order from the county court.

Together, § 28E and rule 15 (a) (1) establish the right of the Commonwealth to appeal from the decision of a judge granting a motion to dismiss an indictment or complaint (among other things). However, neither the statute nor the rule specifies whether the Commonwealth may appeal from the dismissal of a portion of an indictment (e.g., a sentence enhancement) as opposed to the dismissal of an indictment in its entirety.

In Pelletier, 449 Mass. at 395-396, 868 N.E.2d 613, we determined that the Commonwealth may not proceed as a matter of right under § 28E and rule 15 (a) (1) where it seeks to appeal from only the dismissal of subsequent offense charges. Pelletier involved a charge of operating a motor vehicle while under the influence of intoxicating liquor, third offense, under G. L. c. 90, § 24 (1) (a ) (1). Pelletier, supra at 393, 868 N.E.2d 613. The Commonwealth filed a petition pursuant to G. L. c. 211, § 3, seeking review of a judge's decision to sentence the defendant as a first-time offender despite the subsequent offense portion of the indictment. Id. at 394, 868 N.E.2d 613.

In concluding that the G. L. c. 211, § 3, petition was proper, we stated that it was "uncertain" whether the Commonwealth could have appealed the trial judge's ruling pursuant to § 28E and rule 15 (a) (1). Id. at 395, 868 N.E.2d 613. Next, we noted that the subsequent offense portion of a charge "does not create an independent crime," that it "concerns only the punishment to be imposed if a defendant is convicted of the underlying crime and the prior offenses are proved," and that "[t]he defendant's sentence on the underlying charge in the complaint is ... 'inextricably bound' with the plea judge's treatment of the subsequent offense portion of the complaint" (citations omitted). Id. at 395-396, 868 N.E.2d 613. We then concluded that "an appeal from a 'dismissal' of only that portion of the complaint charging a subsequent offense may not lie." Id. at 396, 868 N.E.2d 613.

The Commonwealth argues that this holding is incorrect. It contends that, because rule 15 (a) (1) is the only procedural mechanism by which the Commonwealth may appeal from a dismissal, prohibiting the appeal from the dismissal of subsequent offense charges undermines the purpose of § 28E. In revisiting the matter, we agree with the Commonwealth and conclude that, notwithstanding the reasoning in Pelletier, the Commonwealth may take an appeal from the dismissal of the sentence enhancement portion of an indictment pursuant to § 28E by way of rule 15 (a) (1).

We have highlighted the important jurisprudential interests served generally by a right to appeal, including consistent treatment of similar cases and the orderly development of a body of law. See Burke v. Commonwealth, 373 Mass. 157, 160, 365 N.E.2d 811 (1977). Appellate review also ensures the proper administration of justice in individual cases. See, e.g., Swift v. American Mut. Ins. Co. of Boston, 399 Mass. 373, 375 n.5, 504 N.E.2d 621 (1987).

These interests apply with equal force not only to a review of the proceedings once a trial has concluded, but also to the review of pretrial decisions that terminate criminal proceedings prior to a trial being held. An appeal from a trial judge's dismissal of an indictment pursuant to § 28E and rule 15 (a) (1)"allow[s] the Commonwealth to reinstitute proceedings terminated because of an incorrect ruling in the trial court, ... but, on the other hand, ... allow[s] [appellate courts] to affirm preliminary rulings which, in effect, put an end to a particular prosecution."

Burke, 373 Mass. at 160, 365 N.E.2d 811. The absence of a mechanism to appeal from a decision that terminates a criminal proceeding could "leave a class of cases, many of which involve serious crimes, lost either to further prosecution or any appellate review." Id.

A sentence enhancement charge cannot be brought alone; instead, it must accompany a substantive criminal charge. See Bynum v. Commonwealth, 429 Mass. 705, 709-710, 711 N.E.2d 138 (1999). However, like the underlying felony charges they accompany, sentence enhancements must be included in charging documents and voted on by a grand jury. See G. L. c. 278, § 11A. See also Commonwealth v. Miranda, 441 Mass. 783, 789, 809 N.E.2d 487 (2004) (indictments including repeat offender charges must adequately notify defendant of crime charged and jeopardy faced); Commonwealth v. Fernandes, 430 Mass. 517, 521-522, 722 N.E.2d 406 (1999), cert. denied, 530 U.S. 1281, 120 S.Ct. 2755, 147 L.Ed.2d 1017 (2000) (repeat offender component should appear in indictment). Subsequent offense charges are prosecuted in a separate proceeding, only if and after the defendant has been convicted of the underlying substantive offense. G. L. c. 278, § 11A. Thus, when a judge dismisses the sentence enhancement portion of an indictment, he or she is terminating that particular proceeding. See Pelletier, 449 Mass. at 396, 868 N.E.2d 613 ( G. L. c. 278, § 11A, requires defendants charged with sentence enhancements "to be tried in a two-step, bifurcated procedure"). See also Miranda, 441 Mass. at 788, 809 N.E.2d 487 ( § 11A requires defendant "to be tried ... first, on the underlying substantive crime and, then, in a separate proceeding, on that component of the charge referring to the crime as a second or subsequent offense"). Because an unrestrained right to pretrial appeals by the Commonwealth may be burdensome on defendants (and the courts), G. L. c. 278, § 28E, limits such appeals to circumstances in which the trial judge's decision forecloses the Commonwealth's opportunity to go forward with the prosecution altogether. Burke, 373 Mass. at 160, 365 N.E.2d 811. See Commonwealth v. Cavanaugh, 366 Mass. 277, 279, 317 N.E.2d 480 (1974) ("interlocutory appeals and reports should not be permitted to become additional causes of the delays in criminal trials which are already too prevalent"). As a motion judge who grants a motion dismissing the subsequent offense portion of a charge terminates a separate proceeding adjudicating the issue of conviction of prior offenses that was included in an indictment, there is no reason that an appeal should not lie under § 28E. See G. L. c. 278, §§ 11A, 28E. If the Commonwealth is denied the ability to seek an appeal from the dismissal of subsequent offense charges, those charges might be "lost either to further prosecution or any appellate review." Burke, 373 Mass. at 160, 365 N.E.2d 811.

Finally, the right to appeal from decisions interpreting these statutes helps to ensure that they are enforced uniformly, and that the Legislature's penological goals are realized.

"Adherence to the principle of stare decisis provides continuity and predictability in the law, but the principle is not absolute. No court is infallible, and this court is not barred from departing from previous pronouncements if the benefits of so doing outweigh the values underlying stare decisis." Stonehill College v. Massachusetts Comm'n Against Discrimination, 441 Mass. 549, 562, 808 N.E.2d 205, cert. denied sub nom. Wilfert Bros. Realty Co. v. Massachusetts Comm'n Against Discrimination, 543 U.S. 979, 125 S.Ct. 481, 160 L.Ed.2d 356 (2004). See Pearson v. Callahan, 555 U.S. 223, 233, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (considerations in favor of stare decisis are at nadir in cases involving procedural rules). Although we concluded otherwise in Pelletier, we now conclude that § 28E and rule 15 (a) (1) permit an appeal as of right from a dismissal of sentence enhancement charges.

One additional consideration merits discussion. The Commonwealth's inability to review the dismissal of habitual criminal portions of indictments under Mass. R. Crim. P. 15, yet ability to obtain review under G. L. c. 211, § 3, as in this case, undermines the intent of Mass. R. Crim. P. 15 (d), which "authorize[s] awards of appellate fees and costs to defendants in those situations where the Commonwealth is entitled to appeal, or seek leave to appeal, from trial court rulings in a defendant's favor." Commonwealth v. Augustine, 470 Mass. 837, 840, 26 N.E.3d 709 (2015), quoting Commonwealth v. Phinney, 448 Mass. 621, 622, 863 N.E.2d 496 (2007). The purpose of this rule is " 'to equalize the resources of the defendant with those of the Commonwealth' in cases where a defendant does not have court-appointed counsel but is forced to defend against a Commonwealth appeal; and to prevent a defendant's privately retained counsel from being placed 'in the untenable position of either volunteering his services on appeal or abandoning the defendant.' " Augustine, supra, quoting Phinney, supra at 622 n.2, 863 N.E.2d 496. See Commonwealth v. Gonsalves, 432 Mass. 613, 616-617, 739 N.E.2d 1100 (2000) (discussing at length origin and purposes of rule 15 [d] ). Where the Commonwealth seeks review under G. L. c. 211, § 3, there is no appeal under rule 15, but instead a collateral proceeding in the county court. Therefore, the defendant is not entitled to reimbursement for costs and attorney's fees associated with defending the Commonwealth's claim. See Commonwealth v. Shaughessy, 455 Mass. 346, 353, 916 N.E.2d 980 (2009). In cases involving the dismissal of sentence enhancement charges, we do not believe that this result is consistent with the intent of rule 15 (d).

3. Timeliness of Commonwealth's G. L. c. 211, § 3, petition. The defendant contends that the single justice abused her discretion by failing to deny the Commonwealth's motion to enlarge the time to file a petition under G. L. c. 211, § 3. This argument has no merit. The Commonwealth's application was based on the erroneous concern that the time limits of Mass. R. A. P. 4, as amended, 430 Mass. 1603 (1999), apply generally to superintendence petitions filed before a single justice of this court under G. L. c. 211, § 3. Because such a petition is not an appeal governed by the rules of appellate procedure, the time limits set forth in rule 4 of those rules do not apply. See Mass. R. A. P. 1 (a), 365 Mass. 844 (1974) (defining scope of rules as applying to "procedure in appeals to an appellate court"). Although there may be circumstances in which a single justice might deny such a petition as untimely, the decision would not be governed by rule 4. The single justice did not abuse her discretion in considering the Commonwealth's petition in this case.

Conclusion. For the foregoing reasons, the judgment of the single justice is vacated, and the case is remanded to the county court for entry of an appropriate order by the single justice consistent with this opinion.

So ordered.

GANTS, C.J. (concurring, with whom Lowy, J., joins).

I agree with the court that, given the legislative evolution of the habitual criminal statute, G. L. c. 279, § 25 (a ), we can discern that the Legislature did not intend to require the separate prosecution of predicate offenses, and that we must respect that legislative intent. I write separately only to make a few observations that suggest that § 25 (a ) warrants revisiting by the Legislature.

First, the legislative intent that we effectuate today is that of the Legislature in 1887. As the court explains, the Legislature that year chose to reenact a version of the habitual criminal statute that did not require the separate prosecution of predicate offenses, as opposed to an earlier version that did include that requirement, thus reflecting a "conscious decision" not to require separate prosecutions. Ante at 451, quoting Commonwealth v. Resende, 474 Mass. 455, 466, 52 N.E.3d 1016 (2016). This decision has remained undisturbed since then, even though our understanding of what is wise and just in a criminal justice system has changed dramatically in the past 131 years. In 1887, the punishment for a capital offense entailed "hanging the convict by the neck until he is dead." Pub. St. 1882, c. 215, § 37. Those convicted of an offense punishable by imprisonment could be sentenced to solitary confinement -- in which case they would be fed "bread and water only" -- and hard labor. See Pub. St. 1882, c. 215, § 3; Pub. St. 1882, c. 220, § 39; Pub. St. 1882, c. 221, § 29. Needless to say, attitudes about crime and punishment have changed significantly since then.

Second, the sanction imposed by the habitual criminal statute has become considerably more severe: whereas the 1887 statute provided that habitual criminals "shall be punished by imprisonment ... for twenty-five years," St. 1887, c. 435, § 1, the current statute provides that they "shall be punished by imprisonment ... for the maximum term provided by law." G. L. c. 279, § 25 (a ). For many offenses, the maximum term provided by law is life. See, e.g., G. L. c. 265, § 17 (armed robbery); G. L. c. 265, § 18A (armed assault in dwelling); G. L. c. 265, § 18C (armed home invasion); G. L. c. 266, § 14 (armed or assaultive burglary). This means that a habitual criminal who in 1887 would have faced twenty-five years of imprisonment could today face the far harsher punishment of imprisonment for life.

Third, significant changes in other sentencing laws have caused the habitual criminal statute to operate more harshly today than it has in the past. For example, in 1993 the Legislature enacted the so-called Truth in Sentencing Act, St. 1993, c. 432, which modified sentencing laws in Massachusetts such that, among other things, prisoners could no longer obtain early release as a result of statutory good time, St. 1993, c. 432, § 10, and judges no longer had the option of imposing "reformatory" sentences (commonly referred to as "Concord" sentences). St. 1993, c. 432, §§ 14-15, 17-20. See Commonwealth v. Russo, 421 Mass. 317, 319 n.2, 656 N.E.2d 904 (1995). In addition, in 2012 the Legislature amended the law governing parole eligibility for habitual criminals; habitual criminals are now eligible for parole only upon serving two-thirds of their maximum sentence, G. L. c. 127, § 133B, as opposed to one-half of their maximum sentence, as had been the case under prior law. Compare St. 2012, c. 192, § 40, with St. 1955, c. 770, § 70. As a result of these changes, habitual criminals who may in the past have had an opportunity to obtain early release through statutory good time or to become eligible for parole at an earlier time are no longer able to do so.

Fourth, while I agree with the court's interpretation of the habitual criminal statute because it comports with the Legislature's intent, I also note that this interpretation does not comport with the common understanding of what constitutes a "habitual criminal." A "habitual criminal" is commonly understood to be someone who has engaged in recidivism -- that is, an individual who, after having been punished for his or her crimes, nevertheless goes on to commit further crimes. See Black's Law Dictionary 827 (10th ed. 2014) (referencing definition of "recidivist" under definition of "habitual criminal"); id. at 1461 (defining "recidivist," also termed "habitual criminal," as "[a] criminal who, having been punished for illegal activities, resumes those activities after the punishment has been completed"). Under this common understanding of the term, an individual is considered a habitual criminal only if he or she continues to commit serious crimes after repeatedly being punished for those crimes. Generally, habitual criminal statutes, such as G. L. c. 279, § 25 (b ), impose severe punishment only after it is apparent that repeated sentences to prison failed to deter or rehabilitate the defendant, because the defendant continued to commit serious crimes after having twice served prison time for earlier crimes. The habitual criminal statute in § 25 (a ) is at odds with this common understanding. Because it does not require the separate and sequential prosecution of predicate offenses, it applies even where the predicate offenses both occurred before any punishment. Thus, for instance, if an individual struggling with drug addiction and desperate for money to purchase oxycodone robs one convenience store in August and another in September, serves a concurrent three-year prison sentence for each of those robberies, and then commits a new felony after his or her release from custody, he or she would be considered a habitual criminal under § 25 (a ) -- even though we generally would not label this individual as such -- and would have to receive the maximum sentence permitted by law for the new offense.

For these reasons, I believe that it is time to reconsider the wisdom and fairness of the habitual criminal statute. I encourage the Legislature to do so.

      The details regarding the basis of the defendant's indictments are contained in grand jury testimony filed and maintained under seal pursuant to G. L. c. 268, § 13D (e ). The defendant was charged on two indictments of armed assault with intent to murder, G. L. c. 265, § 18 (b ) ; three indictments of assault by means of a dangerous weapon, G. L. c. 265, § 15B ; one indictment of unlawful possession of a firearm, G. L. c. 269, § 10 (a ) ; one indictment of unlawful possession of a loaded firearm, sawed off shotgun, or machine gun, G. L. c. 269, § 10 (n ) ; one indictment of unlawful possession of ammunition without a firearm identification card, G. L. c. 269, § 10 (h ) ; one indictment of discharging a firearm within 500 feet of a dwelling, G. L. c. 269, § 12E ; one indictment of possession of a firearm during the commission of a felony, G. L. c. 265, § 18B ; and one indictment of malicious damage to a motor vehicle, G. L. c. 266, § 28 (a ).

      The defendant also pleaded guilty to other charges during the aforementioned 2008 proceeding that are not relevant to our analysis in this case.

      The defendant also was indicted in October, 2014, for a number of other criminal offenses. Several of the 2014 and 2016 charges carried sentence enhancements pursuant to the armed career criminal act, G. L. c. 269, § 10G (c ). The motion judge granted the defendant's motion to dismiss these sentence enhancement charges; the Commonwealth did not appeal from those dismissals. See Commonwealth v. Resende, 474 Mass. 455, 470, 52 N.E.3d 1016 (2016). The Commonwealth exercised its authority to enter a nolle prosequi on the 2014 charges in May, 2017.

      See St. 1817, c. 176, §§ 5-6; St. 1827, c. 118, §§ 19-20; St. 1832, c. 73, § 1; St. 1833, c. 85, §§ 1-2; St. 1836, c. 4, §§ 17, 20-22; St. 1843, c. 80; St. 1853, c. 375 (repealing statute); St. 1887, c. 435, § 1; St. 2012, c. 192, § 47.

      The 1832 statute specifically required proof that a convict subject to the statute "has at two several times before been sentenced by competent authority to [prison]." (emphasis added). St. 1832, c. 73, § 1. At the time, "several" was defined as "[a] state of separation or partition. A several agreement or covenant, is one entered into by two or more persons separately, each binding himself for the whole; a several action is one in which two or more persons are separately charged; a several inheritance, is one conveyed so as to descend, or come to two persons separately by moieties. Several is usually opposed to joint." 2 Bouvier's Law Dictionary 394 (1st. ed. 1839).

      The 1833 statute was reenacted with the express requirement of two distinct discharges from prison for predicate offenses, but without the express requirement of two several convictions contained in the 1832 statute. See St. 1832, c. 73, § 1; St. 1833, c. 85, §§ 1-2.

      Although the 1833 statute appears to have eliminated the express requirement of separate convictions and sentences for predicate offenses, separate convictions would have still been implicit in the requirement that there be two discharges from prison. The express requirement of separate convictions was nonetheless included in the codification of the statute in 1835. See St. 1833, c. 85, §§ 1-2; R.S. c. 133, § 13; R.S. c. 144, § 34. In any case, the 1836 statute expressly repealed the requirement of separate convictions and two discharges from prison that were included in the revised statutes. See St. 1836, c. 4, §§ 17, 20.

      After the 2012 amendments, certain individuals statutorily identified as "habitual criminals" are subject to the provisions of subsection (a ) and certain individuals statutorily identified as "habitual offenders" are subject to the provisions of subsection (b ). See G. L. c. 289, § 25, as appearing in St. 2012, c. 192, § 47.

      In Commonwealth v. Garvey, 477 Mass. 59, 65-66, 76 N.E.3d 987 (2017), we rejected the Commonwealth's argument that the Legislature's decision to include an express "separate and distinct incident" element in G. L. c. 279, § 25 (b ), implied its exclusion in G. L. c. 279, § 25 (a ) (§ 25 [a ] ). However, our conclusions both here and in Garvey contemplate that by reenacting § 25 (a ) without making any significant modifications, the Legislature did not intend to "negate this court's ... prior assumptions about § 25 (a )." Id. at 66, 76 N.E.3d 987. Based on the statutory history and our case law, the prior assumption here is that the Legislature did not require predicate offenses to be separately brought and tried.

      General Laws c. 269, § 10G, provides in relevant part:
      "(a ) Whoever, having been previously convicted of a violent crime or of a serious drug offense, both as defined herein, violates the provisions of paragraph (a ), (c ) or (h ) of [§] 10 shall be punished by imprisonment in the [S]tate prison for not less than three years nor more than [fifteen] years.
      "(b ) Whoever, having been previously convicted of two violent crimes, or two serious drug offenses or one violent crime and one serious drug offense, arising from separate incidences, violates the provisions of said paragraph (a ), (c ) or (h ) of said [§] 10 shall be punished by imprisonment in the [S]tate prison for not less than ten years nor more than [fifteen] years.
      "(c ) Whoever, having been previously convicted of three violent crimes or three serious drug offenses, or any combination thereof totaling three, arising from separate incidences, violates the provisions of said paragraph (a ), (c ) or (h ) of said [§] 10 shall be punished by imprisonment in the [S]tate prison for not less than [fifteen] years nor more than [twenty] years."

      We noted that the Legislature chose to depart from language in the Federal statute in its description of what makes a violent crime a predicate offense. Resende, 474 Mass. at 464-465, 52 N.E.3d 1016 (comparing "incidences" in Massachusetts statute with "committed on occasions different from one another" in Federal statute).

      A similar understanding of this statute, and how its purposes may differ from other repeat offender statutes with sentence enhancements in this and other States may be found in Note, Habitual Criminal Statutes: The Requirement of Prior Convictions, 51 Harv. L. Rev. 345, 345-346 (1937).

      There are many sentence enhancement statutes. See, e.g., G. L. c. 279, § 8B (commission of crime while released on personal recognizance); G. L. c. 269, § 10 (firearm offenses); G. L. c. 266, § 40 (common and notorious thief); G. L. c. 94C, §§ 32 -32E (drug offenses); G. L. c. 90, § 24 (driving while under influence).

      General Laws c. 278, § 28E (§ 28E ), permits the Commonwealth to appeal from "a decision, order or judgment" of a judge in the Superior Court to the Appeals Court in three circumstances: (1) where the judge "allow[s] a motion to dismiss an indictment or complaint," (2) where the judge "allow[s] a motion for appropriate relief under the Massachusetts Rules of Criminal Procedure," and (3) provided that a single justice of this court grants an application for leave to appeal, where the judge "determine[s] a motion to suppress evidence prior to trial." See Commonwealth v. Friend, 393 Mass. 310, 314, 470 N.E.2d 788 (1984) (notwithstanding text in § 28E, "an appeal by the Commonwealth from an order or decision dismissing an indictment in the Superior Court must first be entered in the Appeals Court").

      Rule 15 (a) (1) of the Massachusetts Rules of Criminal Procedure (rule 15 [a] [1] ), which implements § 28E, provides: "The Commonwealth shall have the right to appeal to the Appeals Court a decision by a judge granting a motion to dismiss a complaint or indictment ...."

      "Relief under G. L. c. 211, § 3, is available only in extraordinary circumstances." Jaynes v. Commonwealth, 436 Mass. 1010, 1011, 768 N.E.2d 1053 (2002), quoting Victory Distribs., Inc. v. Ayer Div. of the Dist. Court Dep't, 435 Mass. 136, 137, 755 N.E.2d 273 (2001). "It is not available where the petitioning party has or had 'adequate and effective avenues other than G. L. c. 211, § 3, by which to seek and obtain the requested relief.' " Jaynes, supra, quoting Lanoue v. Commonwealth, 427 Mass. 1014, 1015, 696 N.E.2d 518 (1998).

      Because the Commonwealth is able to obtain relief under G. L. c. 211, § 3, in this case, the question whether it should be allowed to proceed pursuant to rule 15 (a) (1) is moot. Nevertheless, we address the question because "the situation presented is 'capable of repetition, yet evading review.' " Boelter v. Selectmen of Wayland, 479 Mass. 233, 238, 93 N.E.3d 1163 (2018), quoting Seney v. Morhy, 467 Mass. 58, 61, 3 N.E.3d 577 (2014).

      General Laws c. 278, § 11A, provides that when a defendant is charged with being a repeat offender, his or her guilt as to the underlying charge is first determined,
      "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. If he pleads guilty thereto, sentence shall be imposed; if he pleads not guilty thereto, he shall be entitled to a trial by jury of the issue of conviction of a prior offense, subject to all of the provisions of law governing criminal trials.... The court may, in its discretion, either hold the jury which returned the verdict of guilty of the crime, the trial of which was just completed, or it may order the impanelling of a new jury to try the issue of conviction of one or more prior offenses. Upon the return of a verdict, after the separate trial of the issue of conviction of one or more prior offenses, the court shall impose the sentence appropriate to said verdict."

      Section 28E expressly authorizes the Commonwealth to appeal from certain interlocutory decisions granting motions to suppress, as such decisions "so often ... in practical effect, terminate the proceedings." Commonwealth v. Yelle, 390 Mass. 678, 685, 459 N.E.2d 461 (1984). See Commonwealth v. Anderson, 401 Mass. 133, 135, 514 N.E.2d 1094 (1987) (decisions excluding Commonwealth's evidence only appealable under Mass. R. Crim. P. 15"if, as a practical matter, that ruling [if permitted to stand] would terminate the prosecution").

      The Commonwealth has sometimes been successful obtaining review of the dismissal of sentence enhancement portions of indictments under G. L. c. 211, § 3, as in this case. We note, however, that "[o]ur general superintendence power under G. L. c. 211, § 3, is extraordinary and to be exercised sparingly, not as a substitute for the normal appellate process or merely to provide an additional layer of appellate review after the normal process has run its course." Scott v. Attorney Gen., 448 Mass. 1002, 1003, 858 N.E.2d 1089 (2006), quoting Scott v. District Attorney for the Norfolk Dist., 445 Mass. 1022, 1022, 839 N.E.2d 282 (2005). For that reason, it does not provide the right of appeal that the Commonwealth is entitled to under § 28E and rule 15 (a) (1).

      As pointed out in the concurrence, many sentence enhancement statutes, such as this one, are indeed harsh; but, unless constitutionally infirm, it is the duty of the judicial branch to interpret statutes passed by the Legislature, no more and no less.

      Because we conclude that a motion to dismiss an indictment or complaint includes the portion of the indictment related to a sentence enhancement, we need not consider the scope of the meaning of the words "allowing a motion for appropriate relief under the Massachusetts Rules of Criminal Procedure" in G. L. c. 278, § 28E. See Commonwealth v. Therrien, 383 Mass. 529, 533, 420 N.E.2d 897 (1981).

      Prior to its abolition, the "Concord" sentence was "a sentencing option widely used by Superior Court judges in the 1980's." Commonwealth v. Thurston, 53 Mass.App.Ct. 548, 554, 760 N.E.2d 774 (2002). Defendants who received Concord sentences -- typically those who were "deemed capable of rehabilitation" -- would be sentenced not to State prison at the Massachusetts Correctional Institution (M.C.I.) at Walpole (now M.C.I., Cedar Junction) but to M.C.I., Concord (for male defendants) or M.C.I., Framingham (for female defendants). Id. at 555, 760 N.E.2d 774. These defendants would receive apparently long sentences, ranging up to the maximum term provided by law, but would become eligible for parole after serving only "a small fraction ... of the stated sentence." Id. See Massachusetts Sentencing Commission, Survey of Sentencing Practices: Truth-in-Sentencing Reform in Massachusetts 6 (Oct. 2000). The Concord sentence was available as a sentencing option even where the defendant was convicted of an offense with a mandatory minimum sentence. See Commonwealth v. Brown, 431 Mass. 772, 778, 730 N.E.2d 297 (2000) (Concord sentence "was a general sentencing option" that was "not incompatible" with mandatory minimum sentence).

      General Laws c. 279, § 25 (b ), imposes the maximum sentence without the possibility of probation or parole for "habitual offenders." In order to be considered a habitual offender, an individual must have been convicted two times previously of certain enumerated violent offenses, "arising out of charges separately brought and tried, and arising out of separate and distinct incidents that occurred at different times, where the second offense occurred subsequent to the first conviction."


source: Caselaw Access Project

license: Public Domain

text:
    Eladio SANTOS v. COMMONWEALTH.
    SJC-12524
    Supreme Judicial Court of Massachusetts.
    October 15, 2018
    The case was submitted on the papers filed, accompanied by a memorandum of law.
    Eladio Santos, pro se.
    RESCRIPT
    The petitioner, Eladio Santos, appeals from a judgment of a single justice of this court denying his petition pursuant to G. L. c. 211, § 3. We affirm.
    Santos was convicted in 2003 on one indictment charging rape of a child and eight indictments charging indecent assault and battery on a child under fourteen years of age. The Appeals Court affirmed the convictions, and this court denied Santos's subsequent application for further appellate review. See Commonwealth v. Santos, 66 Mass. App. Ct. 1116, 850 N.E.2d 619, S.C., 447 Mass. 1109, 853 N.E.2d 1060 (2006). In 2011, Santos filed his first motion for a new trial, which was denied. The Appeals Court affirmed the ruling, and we again denied Santos's application for further appellate review. See Commonwealth v. Santos, 83 Mass. App. Ct. 1126, 986 N.E.2d 895, S.C., 465 Mass. 1109, 990 N.E.2d 562 (2013). The same result ensued in response to Santos's second motion for a new trial, which he filed in 2014. See Commonwealth v. Santos, 88 Mass. App. Ct. 1117, 42 N.E.3d 210 (2015), S.C., 473 Mass. 1109, 44 N.E.3d 861 (2016).
    In 2018, Santos filed his G. L. c. 211, § 3, petition in the county court. In the petition he alleged that in October, 2017, he "presented" two "structural defects in the trial process" to the trial court. He included with the petition a copy of a motion to vacate, set aside, or correct sentence that, it appears, he claims to have filed in the trial court. He argued that the trial court "ignored" the motion, and he asked the single justice either to rule on the merits of the motion or to remand the matter to the trial court for a ruling. The single justice denied the petition without a hearing.

      The petitioner named the Superior Court Department as the respondent. The court is a nominal party only. See S.J.C. Rule 2:22, 422 Mass. 1302 (1996).

   Santos has now filed a memorandum and appendix pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001). Technically speaking, that rule does not apply here because Santos is not seeking relief from any interlocutory ruling of the trial court. Rather, he is asking us to act on, or to direct the trial court to act on, a motion that purportedly has been filed and is pending in that court. It is unclear from the record, however, whether the motion was actually ever received by and filed in the trial court. Nothing on the trial court docket shows that such a motion was received and filed, and there is no indication on the copy of the motion included in the record before us (e.g., a date stamp indicating receipt) that the motion was ever received by the trial court. Any question concerning the actual receipt and filing of the motion is something that should itself be resolved in the trial court in the first instance. See Matthews v. D'Arcy, 425 Mass. 1021, 1022, 681 N.E.2d 815 (1997). If Santos did in fact file the motion, there is no reason why it should not be docketed and acted on accordingly. Alternatively, if the motion was never in fact filed in the trial court, Santos should file it there now, rather than filing a G. L. c. 211, § 3, petition in this court.

On the basis of the record before her, the single justice did not err or abuse her discretion in denying relief under G. L. c. 211, § 3.

Judgment affirmed.


text:
    Enrique PEREZ-ACEVEDO v. COMMONWEALTH.
    SJC-12576
    Supreme Judicial Court of Massachusetts.
    October 15, 2018
    Enrique Perez-Acevedo, pro se.
    RESCRIPT
    The petitioner, Enrique Perez-Acevedo, appeals from a judgment of a single justice of this court denying his petition pursuant to G. L. c. 211, § 3. We affirm.
    Perez-Acevedo pleaded guilty, in May, 2016, on one indictment charging trafficking in a class A substance, in violation of G. L. c. 94C, § 32E (c ) ; and five indictments charging distribution of a class A substance, in violation of G. L. c. 94C, § 32 (a ). In December, 2017, he filed a motion to withdraw his guilty pleas and for a new trial, which was denied. He appealed from the denial of that motion, but, on his own motion, the appeal was subsequently dismissed. He also filed, in June, 2018, a motion for release from unlawful restraint pursuant to Mass. R. Crim. P. 30 (a), as appearing in 435 Mass. 1501 (2001). After that motion was denied, he filed, in this court, an "application for writ of mandamus pursuant to ch. 211, sec. 3 by a single justice." In the petition he argued that he had not received a fair hearing in the trial court on his motion for release from unlawful restraint, as well as that he had received ineffective assistance of counsel. (Although it is not entirely clear from the record, this appears to be in reference to Perez-Acevedo's plea counsel.) The single justice treated the application as a petition pursuant to G. L. c. 211, § 3, and denied it without a hearing.
    Perez-Acevedo has now filed a memorandum and appendix pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001). Even though rule 2:21 does not apply in this situation, because he is not challenging any interlocutory ruling of the trial court, it is clear that he is not entitled to review pursuant to G. L. c. 211, § 3. Relief under G. L. c. 211, § 3, is properly denied where, as here, "there are other routes by which the petitioning party may adequately seek relief." Sabree v. Commonwealth, 432 Mass. 1003, 1003, 732 N.E.2d 275 (2000). Perez-Acevedo appears to be arguing that because of the magnitude of the purported errors, only this court can properly review the circumstances and provide relief. His arguments to the contrary notwithstanding, this case does not present the type of exceptional circumstance that requires the exercise of this court's extraordinary power of general superintendence pursuant to G. L. c. 211, § 3. There is no reason why he cannot seek relief in the Appeals Court in an appeal from the denial of his motion for release from unlawful restraint. Indeed, as the single justice himself noted, Perez-Acevedo has already commenced just this process by filing a notice of appeal in the trial court.

      Prior to the dismissal of his appeal, he also filed an application for direct appellate review, which this court denied in May, 2018.

   The single justice did not err or abuse his discretion in denying relief under G. L. c. 211, § 3.

Judgment affirmed.

The case was submitted on the papers filed, accompanied by a memorandum of law.


text:
    Owen MCCANTS v. COMMONWEALTH.
    SJC-12553
    Supreme Judicial Court of Massachusetts.
    October 15, 2018
    The case was submitted on the papers filed, accompanied by a memorandum of law.
    Owen McCants, pro se.
    RESCRIPT
    The petitioner, Owen McCants, appeals from a judgment of a single justice of this court denying his petition pursuant to G. L. c. 211, § 3. We affirm.
    In 1974, McCants was convicted of several crimes, including rape and armed robbery, in two different cases. In 2014, he filed a motion for a new trial in each of the two cases. A judge in the trial court consolidated the motions and denied them. The Appeals Court affirmed the denial of the motions, and we subsequently denied McCants's application for further appellate review. See Commonwealth v. McCants, 92 Mass.App.Ct. 1116, 94 N.E.3d 881 (2017), S.C., 478 Mass. 1109, 102 N.E.3d 424 (2018). McCants then filed his G. L. c. 211, § 3, petition in the county court, raising essentially the same issues that he had raised in the Appeals Court. The single justice denied the petition without a hearing.
    McCants has now filed a memorandum and appendix pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001). Even though rule 2:21 does not apply in this situation, because McCants is not challenging any interlocutory ruling of the trial court, it is clear that he is not entitled to review pursuant to G. L. c. 211, § 3. He has already obtained appellate review of the denial of his consolidated motions for a new trial. To the extent that he raises certain additional issues in the G. L. c. 211, § 3, petition that he did not raise in any of the earlier proceedings in the trial court or the Appeals Court, there is no reason why he could not have done so in those proceedings. "Our general superintendence power under G. L. c. 211, § 3, is extraordinary and to be exercised sparingly, not as a substitute for the normal appellate process or merely to provide an additional layer of appellate review after the normal process has run its course." Votta v. Police Dep't of Billerica, 444 Mass. 1001, 1001, 826 N.E.2d 199 (2005).
    The single justice did not err or abuse his discretion in denying relief under G. L. c. 211, § 3.
    Judgment affirmed.

      The petitioner named the Superior Court Department as the respondent. The court is a nominal party only. See S.J.C. Rule 2:22, 422 Mass. 1302 (1996).


text:
    Manas Ranjan PANDA v. Moushmita PANDA.
    SJC-12541
    Supreme Judicial Court of Massachusetts.
    October 15, 2018
    The case was submitted on the papers filed, accompanied by a memorandum of law.
    Manas Ranjan Panda, pro se.
    RESCRIPT
    The petitioner, Manas Ranjan Panda, appeals from a judgment of a single justice of this court denying his petition pursuant to G. L. c. 211, § 3. We affirm.
    The petitioner (father) and the respondent, Moushmita Panda (mother), were divorced in April, 2016. They have two minor children. In September, 2017, the father filed an amended complaint for modification. After a trial, a judge in the Probate and Family Court made certain modifications to the parties' separation agreement, but declined, among other things, to modify that part of the agreement that allowed for the mother's travel to India with the children for up to four weeks. On January 26, 2018, one day after the trial had concluded, and before the judge issued her decision on February 5, 2018, the father filed a motion to prohibit the mother from traveling to India with the children. That motion was denied on March 19, 2018. The father filed a notice of appeal from both that ruling and the February 5 judgment to the extent that the latter concerned travel to India. The father also filed a motion to stay, in an effort to preclude the mother from traveling to India with the children, which the probate judge denied. The father then sought a stay from a single justice of the Appeals Court. The single justice denied the motion as well as the father's subsequent motion for reconsideration. The father has appealed from the single justice's decision, and that appeal remains pending in the Appeals Court.
    On the same date that the father's appeal was entered in the Appeals Court, he filed his G. L. c. 211, § 3, petition in the county court. In the petition, he sought relief from both the original April, 2016, divorce judgment as well as the February, 2018, modification, to the extent that they both allowed for travel to India. In particular, the father appeared to be seeking a stay to prevent a trip to India that the mother was scheduled to take with the children commencing on or about June 21, 2018. The single justice denied the petition without a hearing on June 8, 2018. On June 19, 2018, the father filed, in this court, a memorandum and appendix pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001). He also filed an "emergency motion to expedite," on the basis of the mother's imminent travel plans.

      On that same date, January 26, 2018, the father also filed another complaint for modification, which remains pending in the Probate and Family Court.

      The emergency petition to expedite was denied.

   To the extent that the father continues to seek a stay to prevent the mother's June, 2018, trip to India with the children, that issue is now moot, as it appears, as best we can tell from the record, that the trip has occurred and the mother has returned with the children. See Rasten v. Northeastern Univ., 432 Mass. 1003, 1003, 731 N.E.2d 1074 (2000), cert. denied, 531 U.S. 1168, 121 S.Ct. 1133, 148 L.Ed.2d 998 (2001). To the extent that he seeks to preclude any and all future travel, by seeking relief from the April, 2016, judgment, and the February, 2018, modification, his remedy does not lie with this court. He can obtain adequate appellate review in the regular course of a direct appeal from the rulings and judgments of the trial court. Relief under G. L. c. 211, § 3, is properly denied where, as here, "there are other routes by which the petitioning party may adequately seek relief." Sabree v. Commonwealth, 432 Mass. 1003, 1003-1004, 732 N.E.2d 275 (2000), and cases cited.

The single justice did not err or abuse his discretion in denying relief under G. L. c. 211, § 3.

Judgment affirmed.


text:
    Thomas QUIGLEY v. COMMONWEALTH.
    SJC-12543
    Supreme Judicial Court of Massachusetts.
    October 16, 2018
    The case was submitted on the papers filed, accompanied by a memorandum of law.
    Elliot Savitz, Dedham, for the petitioner.
    Thomas Quigley appeals from a judgment of the county court denying, without a hearing, his petition for relief under G. L. c. 211, § 3. Quigley has been charged in the District Court with several motor vehicle offenses. He filed a motion to dismiss the complaint on the ground that the police failed to file the citations with the court in a timely manner, as required by G. L. c. 90C, § 2. The motion was denied after an evidentiary hearing, and Quigley's petition ensued. We affirm.
   The case is before us pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), which requires a party challenging an interlocutory ruling of the trial court to "set forth the reasons why review of the trial court decision cannot adequately be obtained on appeal from any final adverse judgment in the trial court or by other available means." S.J.C. Rule 2:21 (2). Quigley has not met his burden under the rule. "The denial of a motion to dismiss in a criminal case is not appealable until after trial, and we have indicated many times that G. L. c. 211, § 3, may not be used to circumvent that rule. Unless a single justice decides the matter on the merits or reserves and reports it to the full court, neither of which occurred here, a defendant cannot receive review under G. L. c. 211, § 3, from the denial of his motion to dismiss." Jackson v. Commonwealth, 437 Mass. 1008, 1009, 770 N.E.2d 469 (2002), and cases cited. We have recognized a limited exception to this rule in cases raising a double jeopardy claim of substantial merit, see Neverson v. Commonwealth, 406 Mass. 174, 175-176, 546 N.E.2d 876 (1989), but that exception does not apply here. If Quigley is convicted of any offense, there is no reason he cannot raise his claims on direct appeal and, if warranted, obtain relief. "The fact that ... this process might be time-consuming and the outcome uncertain does not render the remedy inadequate." Calzado v. Commonwealth, 479 Mass. 1033, 1034, 97 N.E.3d 683 (2018). The single justice did not err or abuse his discretion in denying extraordinary relief.

Judgment affirmed.

      Unlike a double jeopardy claim, Quigley's claim does not concern a right not to be tried. See Soucy v. Commonwealth, 470 Mass. 1025, 1026, 26 N.E.3d 194 (2015), and cases cited.


text:
    Jeremy P. ROBIN v. COMMONWEALTH.
    SJC-12520
    Supreme Judicial Court of Massachusetts.
    October 16, 2018
    Brian E. Murphy & Maura J. Tansley for the petitioner.
    RESCRIPT
    Jeremy P. Robin appeals from a judgment of the county court denying, without a hearing, his petition for relief under G. L. c. 211, § 3. Robin, who has been indicted on charges of manslaughter and assault and battery, moved that the Commonwealth be ordered to produce a transcript of the instructions given to the grand jury. See Commonwealth v. Grassie, 476 Mass. 202, 220, 65 N.E.3d 1199 (2017) (entire grand jury proceeding, excluding deliberations but including any legal instructions, "to be recorded in a manner that permits reproduction and transcription"). A judge in the Superior Court denied the motion, and Robin's G. L. c. 211, § 3, petition ensued. The single justice denied relief on the ground that Robin has an adequate remedy in the normal appellate process. We affirm.
   The case is before us pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), which requires a party challenging an interlocutory ruling of the trial court to "set forth the reasons why review of the trial court decision cannot adequately be obtained on appeal from any final adverse judgment in the trial court or by other available means." S.J.C. Rule 2:21 (2).

Robin has not met his burden under the rule. Robin argues that the denial of a transcript of the instructions hampers his ability to defend himself. If so, Robin can raise the denial of his motion on direct appeal from any conviction and, if warranted, obtain relief. "The fact that ... this process might be time-consuming and the outcome uncertain does not render the remedy inadequate." Calzado v. Commonwealth, 479 Mass. 1033, 1034, 97 N.E.3d 683 (2018). The single justice did not err or abuse her discretion in denying extraordinary relief.

Judgment affirmed.

The case was submitted on the papers filed, accompanied by a memorandum of law.

      The rule also provides that "[t]he appeal shall be presented ... on the papers filed in the single justice session" and that the petitioner must file a record appendix containing the relevant material. S.J.C. Rule 2:21 (2). The appendix filed by Robin is incomplete, as it omits the Commonwealth's opposition to his G. L. c. 211, § 3, petition. This presents a further reason not to disturb the single justice's decision.


text:
    Sandon GONSALVES v. COMMONWEALTH.
    SJC-12521
    Supreme Judicial Court of Massachusetts.
    October 16, 2018
    Allison J. Koury, Wayland, for the petitioner.
    Sandon Gonsalves appeals from a judgment of the county court denying, without a hearing, his petition for relief under G. L. c. 211, § 3. We affirm.
    Gonsalves was indicted for assault and battery, and he has an attorney representing him in the Superior Court on that charge. Several months later, he was indicted for witness intimidation. A second attorney represents him on that charge. On the Commonwealth's motion, and over Gonsalves's objection, a judge in the Superior Court consolidated the cases for trial. The Commonwealth then filed a motion to prohibit the two attorneys from engaging in duplicative trial procedures. Again over Gonsalves's objection, the judge allowed that motion in large part, limiting Gonsalves to one opening statement and one closing statement, and ordering that, presumptively, only one defense attorney would examine or cross-examine each witness, unless leave is granted to conduct limited additional questioning. Gonsalves's G. L. c. 211, § 3, petition challenged this order. The single justice denied relief on the ground that Gonsalves has an adequate remedy in the normal appellate process.
    The case is before us pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), which requires a party challenging an interlocutory ruling of the trial court to "set forth the reasons why review of the trial court decision cannot adequately be obtained on appeal from any final adverse judgment in the trial court or by other available means." S.J.C. Rule 2:21 (2). Gonsalves has not met his burden under the rule. He argues, as to the merits of his petition, that the judge's order violates his Sixth Amendment right to counsel, but offers no reason why he could not obtain adequate review of that claim on appeal from any conviction, or why a new trial would not be an adequate remedy if his rights were indeed violated. "The fact that ... [the ordinary appellate] process might be time-consuming and the outcome uncertain does not render the remedy inadequate." Calzado v. Commonwealth, 479 Mass. 1033, 1034, 97 N.E.3d 683 (2018). The single justice did not err or abuse his discretion in denying extraordinary relief.
    Judgment affirmed.
    The case was submitted on the papers filed, accompanied by a memorandum of law.


text:
    Jack SAADE v. Matthew PRICE.
    SJC-12513
    Supreme Judicial Court of Massachusetts.
    October 16, 2018
    The case was submitted on the papers filed, accompanied by a memorandum of law.
    Jack Saade, pro se.
    Jack Saade appeals from a judgment of the county court denying, without a hearing, his petition for relief under G. L. c. 211, § 3, in which he sought the dissolution of a memorandum of lis pendens. Saade was a defendant in an action in the Superior Court concerning certain real property in Somerville. On the motion of the plaintiff in that case, a judge endorsed the memorandum of lis pendens at issue here. The parties reached an agreement in principle to settle the case. After a dispute arose regarding that agreement, a judge in the Superior Court issued a judgment enforcing it. Saade appealed from that judgment, challenging not only the enforcement of the settlement agreement, but also the endorsement of the memorandum of lis pendens. A panel of the Appeals Court affirmed the judgment in an unpublished decision. Price v. Saade, 93 Mass. App. Ct. 1114, 104 N.E.3d 683 (2018). Saade filed his G. L. c. 211, § 3, petition while the appeal was pending.
    Saade has filed a memorandum and appendix pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), which requires a party challenging an interlocutory ruling of the trial court to "set forth the reasons why review of the trial court decision cannot adequately be obtained on appeal from any final adverse judgment in the trial court or by other available means." S.J.C. Rule 2:21 (2). The rule does not apply here, as the case in the Superior Court has gone to final judgment. See Carrington v. Commonwealth, 473 Mass. 1015, 1015, 41 N.E.3d 746 (2015). Nevertheless, it is clear that Saade had, and to some extent pursued, an avenue for relief in the ordinary appellate process. He appealed to the Appeals Court from the judgment of the Superior Court, raising his claims concerning the memorandum of lis pendens, and he may yet seek further appellate review in this court. The fact that, thus far, Saade has not received the relief he seeks does not render the ordinary appellate process an inadequate means of obtaining review of the Superior Court's decision. "The court's extraordinary power of general superintendence under c. 211, § 3, is 'exercised sparingly, not as a substitute for the normal appellate process or merely to provide an additional layer of appellate review after the normal process has run its course.' " Carrington, supra, quoting Doyle v. Commonwealth, 472 Mass. 1002, 1003, 32 N.E.3d 1256 (2015). See Votta v. Police Dep't of Billerica, 444 Mass. 1001, 1001, 826 N.E.2d 199 (2005). The single justice did not err or abuse his discretion in denying extraordinary relief.
    Judgment affirmed.

      Doing business as Starlab Recording Company.

      The rule also provides that "[t]he appeal shall be presented ... on the papers filed in the single justice session" and that the petitioner must file a record appendix containing the relevant material. S.J.C. Rule 2:21 (2). The appendix filed by Saade is incomplete, as it omits several papers filed in the single justice session, including an opposition filed by the plaintiff in the underlying Superior Court case. This presents a further reason not to disturb the single justice's decision.

      We allowed Saade's motions for an enlargement of time to file an application for further appellate review. We express no view at this time on the merits of Saade's case.


text:
    Mark A. STACY v. SUPERIOR COURT DEPARTMENT.
    SJC-12577
    Supreme Judicial Court of Massachusetts.
    October 17, 2018
    The case was submitted on the papers filed, accompanied by a memorandum of law.
    Mark A. Stacy, pro se.
    Anna Lumelsky, Assistant Attorney General, for the Commonwealth.
    Mark A. Stacy appeals from a judgment of the county court dismissing as moot his complaint for relief in the nature of mandamus. In 1986 and 1989, Stacy pleaded guilty in the Superior Court to various offenses. In 2016, he filed two motions pursuant to Mass. R. Crim. P. 30, as appearing in 435 Mass. 1501 (2001), seeking to withdraw those guilty pleas. In April, 2018, Stacy filed his complaint in the county court, seeking an order directing the Superior Court to take action on his motions. While the complaint was pending, a judge in the Superior Court issued a decision denying both motions. A single justice of this court accordingly dismissed the complaint as moot.
    Stacy has filed what was intended as a memorandum and appendix pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001). That rule does not apply, as Stacy "was not challenging any interlocutory ruling of the trial court, but rather the inaction of the court." Santiago v. Young, 446 Mass. 1006, 1006, 844 N.E.2d 610 (2006). Nevertheless, it is clear on the record that Stacy has received the specific relief sought in his complaint, namely, a ruling on his motion. The complaint was properly dismissed as moot. See Rasten v. Northeastern Univ., 432 Mass. 1003, 1003, 731 N.E.2d 1074 (2000), cert. denied, 531 U.S. 1168, 121 S.Ct. 1133, 148 L.Ed.2d 998 (2001).
    Judgment affirmed.

      Stacy asserts that no such decision has been made. We have, however, been provided with a copy of the decision in question, and the Superior Court dockets plainly show that the motions have been denied. We express no view as to the merits of that decision. To the extent that Stacy is aggrieved by the denial of his motions, he has not shown that he lacks an adequate remedy in the ordinary appellate process.


text:
    Mary COSTELLO & another v. MERRILL LYNCH CREDIT CORPORATION. ,
    SJC-12522
    Supreme Judicial Court of Massachusetts.
    October 17, 2018
    The case was submitted on the papers filed, accompanied by a memorandum of law.
    Mary Costello, Boston, pro se.
    Bahig Bishay, pro se.
    RESCRIPT
    Mary Costello and Bahig Bishay (Bishays) appeal from a judgment of the county court denying their petition for relief under G. L. c. 211, § 3. The Bishays were the defendants in a summary process action commenced in the District Court by Merrill Lynch Credit Corporation, whose successor in interest is Bank of America, N.A. (bank). The Bishays filed an answer and counterclaim and, several months later, filed a motion to amend their answer to assert new defenses and counterclaims and, for the first time, to request a jury trial. That motion was denied. After a bench trial, a judge in the District Court found for the bank and awarded it possession but no damages. The Appellate Division of the District Court affirmed the judgment, including the order denying the motion to amend, as did a panel of the Appeals Court, and we denied further appellate review. Merrill Lynch Credit Corp. v. Costello, 92 Mass. App. Ct. 1113, 94 N.E.3d 879 (2017), S.C., 479 Mass. 1107, 103 N.E.3d 1229 (2018). While the Bishays' application for further appellate review was pending, they filed their G. L. c. 211, § 3, petition, seeking relief from the denial of their motion to amend. A single justice of this court denied relief on the ground that the Bishays had, and were pursuing, an avenue of relief in the ordinary appellate process.
    The Bishays have filed a memorandum and appendix pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), which requires a party challenging an interlocutory ruling of the trial court to "set forth the reasons why review of the trial court decision cannot adequately be obtained on appeal from any final adverse judgment in the trial court or by other available means." S.J.C. Rule 2:21 (2). That rule does not apply here, as the case in the District Court has gone to final judgment. See Carrington v. Commonwealth, 473 Mass. 1015, 1015, 41 N.E.3d 746 (2015). Nevertheless, it is clear that the Bishays' claims could be and were raised in the ordinary appellate process. Contrary to the Bishays' suggestion, the fact that further appellate review is granted only in our discretion does not render the appellate process inadequate. "The court's extraordinary power of general superintendence under c. 211, § 3, is 'exercised sparingly, not as a substitute for the normal appellate process or merely to provide an additional layer of appellate review after the normal process has run its course.' " Id., quoting Doyle v. Commonwealth, 472 Mass. 1002, 1003, 32 N.E.3d 1256 (2015). See Votta v. Police Dep't of Billerica, 444 Mass. 1001, 1001, 826 N.E.2d 199 (2005). The single justice correctly denied extraordinary relief.

      Also known as Mary Bishay.

      Bahig Bishay.

      Now known as Bank of America, N.A.

      The petitioners also named the Appeals Court as a respondent. The court is a nominal party only. See S.J.C. Rule 2:22, 422 Mass. 1302 (1996).

      The case in the District Court was stayed pending the resolution of a case in the Land Court concerning title to the same property.

   Judgment affirmed.


author: MILKEY, J.

text:
    Joanne DELAPA, trustee, v. CONSERVATION COMMISSION OF FALMOUTH.
    No. 17-P-1088
    Appeals Court of Massachusetts, Barnstable..
    Argued June 1, 2018 Decided August 15, 2018
    Donald P. Nagle, Plymouth, (Michael G. Doton, Brockton, also present) for the plaintiff.
    Patricia A. Harris, Associate Town Counsel, for the defendant.
    Present: Milkey, Sullivan, & McDonough, JJ.

      Of the Delcor Realty Trust.

   MILKEY, J.

In 2015, winter storms caused significant damage to a dock in Falmouth (town) owned by Joanne Delapa, as trustee of the Delcor Realty Trust (Delcor). Delcor sought approval from the town conservation commission (commission) to repair the dock, which would involve, inter alia, driving four pilings into a protected wetlands area. Acting in part pursuant to the town wetlands protection by-law and accompanying regulations, the commission denied Delcor's application after finding it deficient in various respects. Delcor brought an action in the nature of certiorari to challenge the commission's denial, see G. L. c. 249, § 4, and on cross motions for judgment on the pleadings, see Mass.R.Civ.P. 12(c), 365 Mass. 754 (1974), a Superior Court judge ruled in the commission's favor. On Delcor's appeal, we affirm the judgment.

Background. 1. The construction of the dock. Delcor acquired the property in June of 1984, and some of the relevant facts predate Delcor's ownership. In July of 1983, a prior owner had obtained approval from the commission to build a dock and associated ramp and float (collectively, the dock). That approval, known as an order of conditions, was issued pursuant to the Wetlands Protection Act, G. L. c. 131, § 40 (act), and to a version of the town's wetlands protection by-law then in effect. The 1983 order of conditions set forth the specifications that the dock was required to meet, and it stated that the work authorized "shall be completed within three years from the date of" its issuance. The order of conditions also stated that it "will not be fully complied with unless and until a duly executed [c]ertificate of [c]ompliance is recorded or registered, as appropriate, in Barnstable [r]egistry of [d]eeds, certifying full compliance."

Delcor or the prior owner also sought certain other approvals for the dock. In a letter dated September 25, 1986 (that is, after the 1983 order of conditions expired), the Army Corps of Engineers (the Corps) indicated its approval of the dock pursuant to what is known as a "general permit." That letter included underscored language that "[w]ork may not begin until [the owner has] returned [an enclosed] form and obtained all other required Federal, State and local authorizations."

On May 5, 1987, Delcor applied to the town building inspector for a building permit to construct the dock. That approval was denied. The building commissioner then wrote a letter to Delcor dated March 1, 1988, in which the inspector noted that an official from the commission had noticed that the dock had been built and stated that removal of the unauthorized structure was required. This paper trail strongly suggests that the dock was built at some unspecified time between May of 1987 (when approval to construct the dock was requested from the building inspector) and March of 1988 (the first documentation that the dock had been built). Consistent with this timeline, but adding little detail, Delcor subsequently filed with the commission a letter that described the dock as having been built in the "late 1980s," and at a July 13, 2016, hearing before the commission, a contractor for Delcor referenced it as having been built "30 years ago." A commission staffer stated at that same hearing that the dock was built in March of 1988, although she did not indicate the basis for such a claim. At another hearing, Delcor's attorney at one point stated that construction of the dock began in September of 1986, and at another point stated that "we don't know when the dock was built." In any event, following the 1988 letter from the building commissioner, the dock apparently was not removed, and the record is silent about any interactions between Delcor and town officials for the next twenty-seven years.

2. The proposed repair of the dock. In 2015, winter storms seriously damaged the dock. As one local official described it, the end of the dock was "mangled," and it is uncontested that part of the dock had sunk. The town conservation agent informed a representative of Delcor that in order to obtain approval to reconstruct the dock, Delcor first would have to close out the 1983 order of conditions by pursuing a certificate of compliance confirming that the dock had been constructed in accordance with the 1983 order. On March 18, 2016, Delcor formally requested the commission to issue a certificate of compliance, and on June 17, 2016, Delcor additionally sought approval to repair the dock by filing what is known as a notice of intent. Specifically, Delcor sought approval to reconstruct the dock by driving four new pilings to replace damaged ones and by making certain repairs to other pilings that would remain. Delcor also sought to put back in place the float it had been using, which measured eighteen feet by eighteen feet. Delcor's filings themselves documented various respects in which the dock, as built, did not conform to what had been approved in the 1983 order of conditions. For example, the dock, as built, was 208 square feet larger than what had been approved. It is uncontested that Delcor's application was unaccompanied by certain documentation identified in the local regulations as "[s]ubmission [r]equirements for all [d]ocks." Falmouth Wetland Regulations (FWR) § 10.16(1)(b). For example, Delcor did not submit a shellfish survey or accurate depictions of water depths in the vicinity of the dock. See FWR § 10.16(1)(b)(3),(6). It appears to be Delcor's position that such documentation is not required for an application to repair an existing dock, at least one allegedly constructed in substantial compliance with an earlier order of conditions. At one of the hearings before the commission, one of Delcor's representatives argued that many docks during the 1980s and the 1990s were constructed after wetlands approval to build them had expired and that the dock had been constructed in "substantial" compliance with the 1983 order of conditions. On this basis, he urged the commission to grant approval as a dock repair.

3. The commission's order. At a meeting held on August 24, 2016, the commission unanimously voted to deny Delcor's application to repair the dock, and a formal written order denying such approval followed a week later. In its transmittal letter, the commission stated that its denial was "without prejudice," and in the order itself, the commission encouraged Delcor to investigate whether a dock could be constructed in accordance with applicable regulatory standards and, if so, to reapply. The order included various factual findings that the commission had made (discussed further below). In the section that followed, labeled "Decision," the commission stated only that it was denying Delcor's request for a permit. Nevertheless, among its enumerated factual findings, the commission also stated that it "is requiring" certain affirmative relief, namely, "the immediate removal of all portions of the dock."

4. The judge's ruling. The commission issued its August 31, 2016, order in part pursuant to the local wetlands protection by-law and regulations, and Delcor brought the current action to appeal those aspects of the order. On an uncontested administrative record assembled by the commission, a Superior Court judge ruled in the commission's favor on cross motions for judgment on the pleadings. The judge did not issue a written memorandum of decision but made the following statements from the bench:

"I [am] affirming the decision of the ... [commission]. It [is] based on substantial[ ] evidence. It [is] not arbitrary or capricious. I [have] reviewed the record. I [have] reviewed all the supporting information."

Discussion. 1. Standard of review. "We review de novo [a] judge's order allowing a motion for judgment on the pleadings under [ Mass.R.Civ.P. 12(c), 365 Mass. 754 (1974) ]." Commonwealth v. Fremont Inv. & Loan, 459 Mass. 209, 212, 944 N.E.2d 1019 (2011), quoting from Wheatley v. Massachusetts Insurers Insolvency Fund, 456 Mass. 594, 600, 925 N.E.2d 9 (2010), S.C., 465 Mass. 297, 988 N.E.2d 845 (2013). In an action in the nature of certiorari challenging a wetlands permit decision made by a conservation commission pursuant to a local by-law, our review is limited at most to whether the commission's decision is supported by substantial evidence in the administrative record, whether the commission's action was arbitrary and capricious, and whether the commission committed an abuse of discretion or other error of law. See generally Fafard v. Conservation Commn. of Reading, 41 Mass. App. Ct. 565, 567-568, 672 N.E.2d 21 (1996) (discussing standards of review applicable to conservation commission permitting decisions). See also Lovequist v. Conservation Commn. of Dennis, 379 Mass. 7, 17, 393 N.E.2d 858 (1979) ; TDJ Dev. Corp. v. Conservation Commn. of N. Andover, 36 Mass. App. Ct. 124, 128, 629 N.E.2d 328 (1994).

2. Regulatory framework. We begin our analysis by reviewing the framework established by the FWR. Those regulations were promulgated by the commission in 1998, and therefore, they were not in place when the dock originally was built. Under the regulations, a permit application is required whenever someone proposes to do work that "will [r]emove, [f]ill, dredge, build upon, degrade, or otherwise [a]lter an [a]rea subject to protection under [the wetlands protection by-law]." FWR § 10.02(2)(a). The term "alter" expressly is defined to include the "[d]riving of piles." FWR § 10.04.

There is a specific section of the regulations that applies to coastal docks. FWR § 10.16(1). Notably, those regulations do not include a specific grandfathering provision, as such, that excluded existing docks from their application. However, some of the specified performance standards apply principally to "new" docks, and apply to "existing" docks in a more limited fashion. For example, the regulations state that "[n]o new docks or piers or extension of an existing dock or pier may be constructed in any portion of [Federal Emergency Management Agency] designated velocity zone (V-Zone) unless the applicant demonstrates that there will be a public benefit from the project." FWR § 10.16(1)(h)(1). As an additional example, there is a prohibition on a dock being located within "[fifty] feet of an area of eel grass" that applies to a "new [dock], replacement, or substantial alteration of an existing dock." FWR § 10.16(1)(h)(5). The regulations do not define what constitutes a "new" dock or an "existing" dock.

At least on their face, many of the regulatory standards apply without regard to whether a dock is considered "new" or "existing." For example, FWR § 10.16(1)(b) sets forth "[s]ubmission [r]equirements for [a]ll [d]ocks," including requirements that applications include -- among many other items -- a shellfish survey and water depth measurements. Additionally, the section governing design specifications and performance standards for docks in recreational harbors includes a strict requirement that dock floats "shall not exceed 100 square feet." FWR § 10.16(1)(d)(3). In an indirect way, the regulations address the extent to which approval is required for the maintenance and repair of those docks that previously had been approved under the regulations. Specifically, the following language is required as a "special condition" in dock approvals issued under the regulations:

"Normal maintenance and repair of a dock or pier is allowed. No extension, alteration or change from the plan of reference is permitted without first obtaining a modification to this permit in accordance with ... [c]ommission procedures."

FWR § 10.16(1)(i)(8).

3. The denial of Delcor's permit application. Delcor argues that the commission's denying the proposed reconstruction of the dock as it had been before the storms damaged it is unsupported by substantial evidence and constitutes an abuse of discretion. That argument gains no traction from the language of the dock regulations discussed above. As noted, those regulations include no grandfathering provision as such. Even though the dock was built before the regulations were adopted, Delcor's proposal falls within the regulations' purview, because Delcor has proposed new activity in the wetlands areas protected by the by-law -- the driving of piles -- that under the terms of the regulations "alter"

those areas by definition. Regardless of whether Delcor's proposal were considered one for a new dock or for the repair of an existing dock, the commission's conclusion that Delcor's application was procedurally and substantively deficient is well supported by the record. Indeed, it is difficult to conceive of how the commission could have approved the proposal where the application both did not comply with mandatory submission requirements and included substantive elements that appear to be at odds with the current performance standards (e.g., the proposed return of a float that has a square footage that is over three times larger than what apparently now is permitted).

Delcor's argument that the commission erred is based not so much on the language of the dock regulations as on a gloss that it alleges the commission has applied to them. Specifically, Delcor maintains that the commission has a policy of summarily approving repairs of existing docks so long as the original construction of the dock was approved and its historic footprint is not expanded. Delcor further argues that its proposal qualifies for such approval because the dock was constructed in substantial compliance with the 1983 order of conditions.

To be sure, the commission did put a great deal of focus during the application process on the extent to which the dock was constructed in compliance with the 1983 order of conditions. This lends some credence to Delcor's suggestion that the commission might have considered its proposal acceptable had it demonstrated compliance with that approval. However, putting aside whether such a gloss can be squared with the actual language of the regulations -- a question we do not reach -- Delcor's argument fails on its own terms. There is substantial support in the record for the commission's conclusion that the dock was not built prior to the expiration of the 1983 order of conditions. Moreover, in any event, the record reveals that the dock, as built, deviated from what was allowed in the 1983 order of conditions in ways that the commission could find significant. Therefore, even were we to assume that the commission were bound by a policy that summary approval should be granted for the repair of existing approved docks, Delcor has not demonstrated that the commission abused its discretion in declining to extend such a policy to Delcor.

We emphasize that our ruling does not depend on whether the dock is considered a new dock or an existing dock, an issue that ultimately may need to be resolved in order to determine which of the various performance standards apply. The record reveals little consideration of that issue to date by either side, and we leave resolution of it until another day.

4. Affirmative relief. One issue remains. As noted, the commission's order not only denied Delcor the requested approval, but also noted that the commission "is requiring the immediate removal" of all of the dock. Delcor argues that the commission's requiring it to take such affirmative action to remedy an alleged past or ongoing violation amounted to "a misuse of the wetlands regulatory process for enforcement purposes." The proper procedure, according to Delcor, would have been to issue an enforcement order. Delcor additionally argues that such an order would be time barred by the statute of limitations set forth at G. L. c. 260, § 2B, or by the doctrine of laches.

For two reasons, we conclude that we need not reach Delcor's arguments that the portion of the commission's decision addressing affirmative relief was procedurally defective and time barred. First, our review of the record reveals that Delcor never raised such issues in Superior Court. See Jancey v. School Comm. of Everett, 421 Mass. 482, 500, 658 N.E.2d 162 (1995) (appellant cannot raise nonjurisdictional argument for first time on appeal), S.C., 427 Mass. 603, 695 N.E.2d 194 (1998). Second, we conclude that the commission's markedly casual reference to affirmative relief does not rise to the level of an enforcement order, that is, an administrative order that has independent force of law. Cf. Director of the Div. of Water Pollution Control v. Uxbridge, 361 Mass. 589, 592-593, 281 N.E.2d 585 (1972) (in action to enforce unappealed administrative enforcement order, only issue is whether administrative action was within agency's jurisdiction). Notably, the commission embedded its statement regarding affirmative relief as a factual finding in what otherwise is merely a ruling in a permitting proceeding. Our conclusion that the commission did not issue a formal enforcement order is reinforced by the fact that the commission did not spell out the legal basis for such an order, an absence that is particularly pronounced to the extent that the commission is left to rely solely on Delcor's noncompliance with local law. Finally, the fact that the commission denied Delcor's proposal without prejudice and expressly invited Delcor to resubmit an application for the dock suggests that the commission did not intend to issue a final binding order to remove the dock.

To be clear, nothing in this opinion should be read as our having concluded that the commission lacked the authority -- based solely on local law -- to require Delcor to remove the rest of the dock in an appropriately instituted administrative or judicial enforcement proceeding. We simply reserve such issues to another day.

Judgment affirmed.

      Strictly speaking, it was Joanne Delapa and Anthony F. Delapa, as trustees of a different trust, the Delapa Realty Trust, who acquired the property in 1984. They subsequently transferred the property to Joanne Delapa as trustee of Delcor in 1990. As nothing in this case appears to turn on the distinction between the two trusts, we will -- for convenience -- refer to them both as Delcor.

      The record indicates that the town adopted a wetlands protection by-law in 1979 and then replaced that by-law with the current version in 1993. The 1983 order of conditions references the earlier by-law only in passing.

      The order stated that the commission could grant limited extensions, but nothing in the record suggests that the commission did so.

      The letter is dated March 18, 2015, but it is evident that this is a typographical error.

      Delcor also sought after-the-fact approval for a fence that had been built without any approval.

      Delcor contends that in at least one respect (the total amount of impervious surface), the deviations from the approved plan were more protective of the wetlands areas.

      All references to the FWR herein are to the version effective as of August 15, 1998.

      The commission also issued its order pursuant to the act. As to that aspect of the order, Delcor represents, without contradiction from the commission, that Delcor separately filed an administrative appeal with the Department of Environmental Protection (department) and that the department issued a superseding order of conditions approving the repair of the dock pursuant to the act. Delcor in fact included a purported copy of such an approval in its addendum to its brief. However, even though the apparent department approval is dated prior to the Superior Court hearing, neither it nor any arguments based on it were raised to the judge. We therefore allow the commission's motion to strike the department approval from the addendum to Delcor's brief, while noting that nothing in this appeal ultimately turns on this, because it long has been established that municipalities may adopt stricter wetlands standards than those adopted under the act. See Lovequist v. Conservation Commn. of Dennis, 379 Mass. 7, 14-15, 393 N.E.2d 858 (1979).

      The parties acknowledged at oral argument that the dock in question would be considered a coastal dock and not an inland dock.

      In a postargument submittal, Delcor pointed to language in the regulations stating that their relevant provisions "shall take effect on August 15, 1998[,] and shall apply to all [p]ermit applications ... filed on or after that date ...." FWR § 10.15(1). According to Delcor, "[t]his provision expressly protects pre-1998 projects from being subject to subsequently amended regulations." We remain unconvinced of the import Delcor seeks to place on the quoted language. A boilerplate statement that new regulations do not apply to applications filed before the regulations took effect does not actually address what substantive standards apply to new applications filed with respect to the reconstruction of earlier projects.

      It bears noting that, as Delcor acknowledged at oral argument, dock floats are detachable structures that must be removed in the winter season. Thus, each year the float has to be reinstalled in a wetlands area protected by the regulations.

      The special condition language quoted above regarding the normal maintenance and repair of docks does not apply, because the dock here indisputably was not approved under the later-adopted regulations. Moreover, the commission was free to conclude that this proposed reconstruction of the dock exceeded "normal maintenance and repair."

      It would have been tidier had the commission formally denied Delcor's request for a certificate of compliance. See FWR § 10.05(11)(c) (requiring that denials of requests for certificates of compliance be issued in writing within twenty-one days). However, the commission's order states that the dock was "not in compliance" with the 1983 order of conditions and leaves it abundantly clear that the commission had determined that Delcor was not entitled to a certificate of compliance. Moreover, to the extent that Delcor's claimed aggrievement was the commission's failure to issue a formal ruling on the certificate of compliance, Delcor's appropriate remedy would have been to bring an action in the nature of mandamus. G. L. c. 249, § 5.

      At oral argument, the commission asserted that docks that were built without commission approval should not be considered "existing" docks even if they were built long before the applicable regulations were adopted. Compare 310 Code Mass. Regs. § 10.24(7)(c)(2) (2014) (allowing "maintenance, repair and improvement [but not substantial enlargement except when necessary to reduce or eliminate a tidal restriction] of structures, including ... piers ... which existed on November 1, 1987," to be approved as "limited projects" without attention to whether they originally were constructed with approval). Alternatively, there are suggestions in the record that the commission may have been of the view that a particular proposed repair of an existing dock could be so profound that such a proposal properly should be viewed as one for a "new" dock. Such issues should be addressed by the commission in the first instance, e.g., if Delcor accepts the commission's invitation to file a new notice of intent.

      Delcor did make a passing argument that any mandated affirmative relief would be time barred on a different ground, namely the statute of limitations set forth in G. L. c. 40A, § 7. Delcor has abandoned that argument on appeal.

      Under the act, conservation commissions have express statutory authority to issue administrative enforcement orders. G. L. c. 131, § 40. In the posture of the current appeal, however, the commission is not relying on its authority under that statute, but, instead, acting only pursuant to its authority under the local wetlands protection by-law and regulations. Based apparently on the town's home rule powers, the current by-law purports to empower the commission to issue enforcement orders, and the current regulations reflect that. FWR § 10.08(1)(a). The commission's decision does not explain whether removal of the dock was designed to remedy a wholly past (three decade old) violation, or instead designed to remedy an ongoing violation of local law. To the extent that the commission was relying on the latter theory, the order does not set forth how Delcor currently is violating local law merely by leaving in place what remains of a dock constructed three decades ago and prior to the town's adopting its own independent performance standards.

      Nor have we accepted Delcor's suggestion that a conservation commission could never issue a hybrid document that combined both a permit decision and an enforcement order.