Opinion
14-P-885
07-01-2015
COMMONWEALTH v. JAY OMAR CANDELARIO.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
The defendant was charged with trafficking in cocaine with a net weight of more than one hundred grams (count 1); possession of a class A substance, subsequent offense (count 2); possession of a class B substance, subsequent offense (count 3); possession of a class C substance, subsequent offense (count 4); and a school zone violation (count 5). A jury convicted him on counts 1-4, and the Commonwealth filed a nolle prosequi as to count 5 before trial. At a jury-waived trial he was subsequently found guilty of the subsequent offense portions of counts 2, 3, and 4. Relevant to this appeal, the judge sentenced the defendant to serve not more than ten years and one day and not less than ten years in State prison on the trafficking charge, count 1. The defendant now appeals.
The defendant was also sentenced to three years of probation after the committed sentence on count 1.
The defendant first argues that Somerville police Detective James Hyde, who testified as an expert witness, offered an opinion about the ultimate issue, which was whether the defendant intended to distribute the crack cocaine found in his pocket. Having carefully parsed the direct examination of the detective, we think that, in response to the prosecutor's careful questioning, he expressed his opinion within permissible bounds. In particular, his opinion was based on asserted hypothetical facts, and he was asked only whether these facts were "more consistent with personal use or possession with intent to distribute." The detective testified only that they were "more consistent" with distribution. While he expressed that a variety of circumstances would "strengthen" his opinion, this is not an opinion as to the defendant's guilt or innocence. We think that this was explanatory and not conclusory testimony.
The trial judge concluded, as the prosecutor incorrectly told her, that the trafficking conviction carried a mandatory minimum ten-year prison sentence, allowing for parole after eight years. The judge expressed regret at having to sentence the defendant to ten years in State prison, but, consistent with her understanding of the law, did so.
After the defendant committed the crime at issue here, but before he was convicted and sentenced, an amendment was enacted to G. L. c. 94C, § 32E. See St. 2012, c. 192, § 22. This amendment reduced the mandatory minimum penalty for trafficking more than one hundred grams of cocaine from ten years to eight years in State prison. See St. 2012, c. 192, § 22. In Commonwealth v. Galvin, 466 Mass. 286, 289-291 (2013), the Supreme Judicial Court concluded that the reduced minimums brought about by St. 2012, c. 192, applied to defendants, like the one here, who committed their crimes prior to its enactment but who had not yet been sentenced.
Because the judge was under a misapprehension as to the mandatory minimum, the sentence on count 1 must be vacated and the case remanded for resentencing. The judgments are otherwise affirmed.
So ordered.
By the Court (Grainger, Rubin & Blake, JJ.),
The panelists are listed in order of seniority. --------
Clerk July 1, 2015.