COMMONWEALTH v. KEO (2023)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant pleaded guilty in the District Court on June 6, 2022, to a single count of unlawfully carrying a firearm without a license in violation of G. L. c. 269, § 10 (a).² He was sentenced to the mandatory minimum house of correction term of eighteen months. On June 23, 2022, the Supreme Court of the United States issued its decision in New York State Rifle & Pistol Ass'n v. Bruen, 142 S. Ct. 2111 (2022), holding that the State of New York's statute for obtaining a license to carry a firearm outside of the home impermissibly burdened the Second Amendment rights of law-abiding citizens. The defendant filed a timely notice of appeal. Shortly thereafter the defendant filed in the District Court a motion “to correct the unconstitutional sentence or, in the alternative, motion for a new trial” (postconviction motion), together with a motion to stay his sentence pending appeal. He argued that under the Supreme Court's analysis in Bruen the Commonwealth's mandatory minimum sentence for unlawfully carrying a firearm is unconstitutional. The same judge who had accepted the guilty plea denied both motions, and the defendant timely appealed from the order denying the postconviction motion.³

Discussion. The defendant does not challenge the underlying licensing regime or his conviction.⁴ Instead, he argues that the mandatory minimum firearm sentencing scheme is unconstitutional under Bruen because there is no historical analogue in the country's history to the mandatory sentencing scheme of G. L. c. 269, § 10 (a). Therefore, the defendant argues, the mandatory minimum sentence is an unconstitutional infringement on his Second Amendment rights. “Such constitutional challenges are questions of law that we review de novo.” Commonwealth v. Johnson, 470 Mass. 300, 307 (2014).

We do not agree that under the reasoning of Bruen section 10 (a)’s mandatory minimum sentence must be considered unconstitutional. As two of the concurring Justices in Bruen made clear, 142 S. Ct. at 2161 (Kavanaugh, J., concurring), the reasoning of Bruen did not invalidate so-called “shall issue” State schemes for licensing firearms, and indeed, the opinion of the Court itself indicates that such licensing schemes do not run afoul of the Second Amendment. See id. at 2138 n.9 (“To be clear, nothing in our analysis should be interpreted to suggest the unconstitutionality of the 43 States’ ‘shall-issue’ licensing regimes”). Here, the sentencing provision at issue is part of a licensing scheme, and the defendant does not challenge the lawfulness of the licensing scheme itself.

Rather, the defendant invokes Bruen to challenge solely the punishment for a firearm licensing scheme violation. Historically, courts review the alleged harshness of different sentencing schemes to determine if the scheme runs afoul of the Eighth Amendment to the United States Constitution and art. 26 of the Massachusetts Declaration of Rights. See Commonwealth v. Sharma, 488 Mass. 85, 89 (2021). In Commonwealth v. Jackson, 369 Mass. 904, 909-916 (1976), the Supreme Judicial Court did just that and upheld the constitutionality of the mandatory minimum firearm sentencing scheme of G. L. c. 269, § 10 (a), holding that it did not amount to cruel and unusual punishment. The court noted that “the Legislature has great latitude to determine what conduct should be regarded as criminal and to prescribe penalties to vindicate the legitimate interests of society.” Id. at 909.

“[I]t is not uncommon for a constitutional rule to apply somewhat differently at the penalty phase than it does at the guilt phase.” White v. Woodall, 572 U.S. 415, 421 (2014). While Bruen provided a new analytical framework for the regulation of the possession of a firearm, it is silent on the issue of punishment. It did not change the constitutionality of existing sentencing schemes, nor discuss any change to how those sentencing schemes should be analyzed. Because nothing in Bruen inherently affects the Supreme Judicial Court's holding in Jackson, we affirm the order denying the postconviction motion.

Order entered August 4, 2022, denying motion to correct sentence or, in the alternative, for a new trial affirmed.

FOOTNOTES

2.   At the change of plea hearing, the Commonwealth agreed to dismiss three additional counts charging knowingly receiving a firearm with a defaced serial number, G. L. c. 269, § 11C; unlawful carrying of a loaded firearm, G. L. c. 269, § 10 (n); and possession of a class B substance with intent to distribute, G. L. c. 94C, § 32A (a).

3.   The defendant also renewed his motion to stay in our single justice session, which was denied. The defendant appealed that denial, which a panel of this court affirmed in an unpublished decision. Commonwealth v. Keo, 102 Mass. App. Ct. 1110 (2023).

4.   As the Supreme Judicial Court recently held in a post-Bruen decision, “[t]he Commonwealth may impose licensing requirements upon the possession of firearms.” Commonwealth v. Guardado, 491 Mass. 666, 691 (2023).