Opinion
20-P-73
02-11-2022
COMMONWEALTH v. HERIBERTO RIVERA
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following our decision in Commonwealth v. Rivera, 99 Mass.App.Ct. 1131 (2021), the Supreme Judicial Court remanded the case to us for consideration of the question whether the defendant's plea to the sentencing enhancement under the Armed Career Criminal Act (ACCA), G. L. c. 269, § 10G, was supported by "sufficient facts on the record to establish each element of the offense." Commonwealth v. DelVerde, 398 Mass. 288, 297 (1986)- We answer that question yes. Incorporating by reference our prior decision, supra, and considering the sole issue before us on remand, our decision remains unchanged.
In its order remanding the case, the Supreme Judicial Court directed our attention to a recent unpublished decision of this court, Commonwealth v. Purdy, 99 Mass.App.Ct. 1125 (2021).
Under the ACCA, the defendant is subject to a sentencing enhancement if he has previously been convicted of a violent crime, defined as an offense that "has as an element the use, attempted use or threatened use of physical force or a deadly weapon against the person of another." G. L. c. 140, § 121 (definition incorporated by reference in G. L. c. 269, § 10G [e]) . If the statutory definition of the prior offense unambiguously qualifies it as a violent crime, then, under the categorical approach, a certified copy of the prior conviction is sufficient to prove that the offense committed was a violent crime. See Commonwealth v. Ashford, 486 Mass. 450, 459 (2020). However, if the prior offense is governed by "'a broad statute that encompasses multiple crimes, '" not all of which are violent, then under the modified categorical approach the Commonwealth must submit additional evidence from which the fact finder may conclude that the prior offense was an ACCA crime of violence. I_d., quoting Commonwealth v. Beal, 474 Mass. 341, 351 (2016) .
At the plea hearing on the sentencing enhancement, the prosecutor explained that on June 21, 2007, police responding to a report of a shooting found the victim lying motionless in the street. A single bullet had entered his bicep, passed through the right side of his chest, and become lodged in his spinal cord. The victim told police that he and the defendant "never had any problems with one another," and had been "partying" with friends. After the defendant left the party, the victim went outside and encountered him, and the defendant said something the victim could not understand. Then the defendant raised a gun and shot the victim. Based on those facts, the defendant admitted that he had previously been convicted of assault with intent to kill and assault and battery by means of a dangerous weapon (ABDW). In these circumstances, both of those offenses qualified as violent crimes as defined in the ACCA.
As to his prior conviction for assault with intent to kill, G. L. c. 265, § 29, the defendant argues that it is not categorically an ACCA violent crime because the wording of that statute proscribes an assault "with intent to commit a felony," G. L. c. 265, § 29, and does not include the words "intent to kill." If the Commonwealth had proffered only a certified copy of a prior conviction for assault with intent to commit a felony, that would not have sufficed to establish that the prior crime was a violent crime under the ACCA. See Ashford, 486 Mass. at 459. But, under the modified categorical approach, the prosecutor submitted additional evidence when she specified during the plea colloquy that the defendant shot the victim with the intent "to kill." That sufficed to prove that the defendant's prior offense of assault with intent to kill was a violent crime as defined in the ACCA, incorporating G. L. c. 140, § 121, because it involved the intentional use of physical force against the victim.
A recent unpublished decision of this court held that assault with intent to kill is a violent crime within the meaning of the ACCA. See Commonwealth v. Coyne, 100 Mass.App.Ct. 1114 (2021) .
As to the defendant's prior conviction for ABDW, because that offense may be committed recklessly rather than intentionally, it is not categorically an ACCA violent crime. See Ashford, 486 Mass. at 466-468; Commonwealth v. Perez, 100 Mass.App.Ct. 7, 12-13 (2021). Here, again, the Commonwealth proved the basis for the sentencing enhancement under the modified categorical approach, Ashford, supra at 460, when the prosecutor specified during the plea colloquy that the defendant committed the ABDW by means of a "gun" with which he "shot" the victim with intent "to kill." Ashford, supra at 460. A firearm "clearly qualif[ies]" as a deadly weapon within the meaning of the ACCA definition of violent crime, G. L. c. 140, § 121. Commonwealth v. Rezendes, 8 8 Mass.App.Ct. 369, 375 n.7 (2015). In these circumstances, the ABDW did amount to the "paradigmatic" version of the offense: "intentionally shooting a person without killing the individual," which is "undoubtedly a crime of violence" as defined in the ACCA. Ashford, supra at 467. Cf. Commonwealth v. Wentworth, 482 Mass. 664, 674 (2019) (defendant's admission during plea colloquy that he "struck his girlfriend at the time in the face and shoved her down on the bed" sufficed to prove assault and battery was ACCA violent crime).
Accordingly, the defendant's plea to the ACCA sentencing enhancement was supported by sufficient facts.
We affirm the judgments and the order denying the defendant's motion to withdraw the guilty plea and correct the sentence.
So ordered.
Green, C.J., Neyman & Grant, JJ.
The panelists are listed in order of seniority.