COMMONWEALTH v. Dennis M. WINBORN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from the trial court's orders denying his motions for: (1) release from unlawful restraint and for a new trial; and (2) reconsideration. He argues that application of the armed career criminal statute, G. L. c. 269, § 10G, may not be based on a predicate juvenile offense that occurred before § 10G was enacted in 1998, and therefore the sentencing judge wrongly considered his 1985 juvenile adjudication in finding him guilty and enhancing his sentence under § 10G. We affirm.
In 2006, a jury found the defendant guilty of armed assault with intent to murder, G. L. c. 265, § 18 (b); unlawful possession of a firearm, G. L. c. 269, § 10 (a); possession of a firearm during the commission of a felony, G. L. c. 265, § 18B; kidnapping, G. L. c. 265, § 26; and armed assault with intent to rob, G. L. c. 265, § 18 (b).2 The defendant then waived his right to a jury trial on the portions of the firearm indictment alleging that he had previously been convicted of a like offense, G. L. c. 269, § 10 (d), and of prior violent crimes, G. L. c. 269, § 10G.
At the jury-waived trial, the Commonwealth introduced evidence of the defendant's two prior convictions for violent crimes: a 1985 juvenile adjudication of delinquency for assault and battery by means of a dangerous weapon (a firearm), and a prior conviction for unlawful possession of a firearm. The judge found the defendant guilty of having previously been convicted both of a like firearm offense and as an armed career criminal.
The defendant argues that, by considering his 1985 juvenile adjudication in enhancing his sentence under G. L. c. 269, § 10G, the judge retroactively applied the statute and therefore violated his rights.3 We disagree because, as this court has previously held, “the defendant is not being punished by § 10G for the [1985 juvenile] offense; he is being punished now for the subsequent offense, which provides punishment in part on the basis that it is a repeat offense, namely the enhanced sentence. That is not retroactive application of a statute.” Commonwealth v. Furr, 58 Mass. App. Ct. 155, 159 (2003), citing Commonwealth v. Bruno, 432 Mass. 489, 497-498 (2000). Accordingly, the judge committed no error in considering the defendant's 1985 juvenile adjudication in finding the defendant guilty and enhancing his sentence pursuant to § 10G.
Order denying motion for release from unlawful restraint and for new trial affirmed.
Order denying motion for reconsideration affirmed.
FOOTNOTES
2. Following trial, the defendant filed a motion for a new trial, which another Superior Court judge denied. A panel of this court affirmed the denial and upheld the convictions in an unpublished decision. See Commonwealth v. Winborn, 78 Mass. App. Ct. 1129 (2011). Subsequently, the defendant filed a second motion for a new trial, which a third Superior Court judge also denied. A panel of this court affirmed the denial in another unpublished decision. See Commonwealth v. Winborn, 89 Mass. App. Ct. 1116 (2016).
3. In his reply brief, the defendant argues for the first time that it is unconstitutional to use a juvenile delinquency adjudication as a predicate to enhance a subsequent sentence under § 10G. Because the defendant raised this argument for the first time in his reply brief, we need not reach it. See Commonwealth v. Bacigalupo, 49 Mass. App. Ct. 629, 632 n.2 (2000) (“Ordinarily, we are not required to decide an issue raised in a reply brief”). If we did reach it, the claim would fail. The Supreme Judicial Court has ruled that juvenile adjudications may serve as predicates pursuant to § 10G. See Commonwealth v. Baez, 480 Mass. 328, 332 (2018) (“qualifying juvenile adjudications may be used as a predicate offense for enhanced penalties under G. L. c. 269, § 10G”).
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