Massachusetts 2023-2024 Regular Session

Massachusetts House Bill H1629 Compare Versions

Only one version of the bill is available at this time.

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1	1	1 of 1
2	2	HOUSE DOCKET, NO. 2399 FILED ON: 1/19/2023
3	3	HOUSE . . . . . . . . . . . . . . . No. 1629
4	4	The Commonwealth of Massachusetts
5	5	_________________
6	6	PRESENTED BY:
7	7	David Paul Linsky
8	8	_________________
9	9	To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
10	10	Court assembled:
11	11	The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
12	12	An Act relative to sentencing guidelines.
13	13	_______________
14	14	PETITION OF:
15	15	NAME:DISTRICT/ADDRESS :DATE ADDED:David Paul Linsky5th Middlesex1/19/2023 1 of 25
16	16	HOUSE DOCKET, NO. 2399 FILED ON: 1/19/2023
17	17	HOUSE . . . . . . . . . . . . . . . No. 1629
18	18	By Representative Linsky of Natick, a petition (accompanied by bill, House, No. 1629) of David
19	19	Paul Linsky for legislation to establish sentencing guidelines for convictions of criminal offenses
20	20	in the Commonwealth. The Judiciary.
21	21	[SIMILAR MATTER FILED IN PREVIOUS SESSION
22	22	SEE HOUSE, NO. 1731 OF 2021-2022.]
23	23	The Commonwealth of Massachusetts
24	24	_______________
25	25	In the One Hundred and Ninety-Third General Court
26	26	(2023-2024)
27	27	_______________
28	28	An Act relative to sentencing guidelines.
29	29	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
30	30	of the same, as follows:
31	31	1 Section 1. Definitions. The following terms as used in this chapter shall have the
32	32	2following meanings:-
33	33	3 “Adjudication of delinquency,” a determination or finding pursuant to G.L. c. 119 § 58
34	34	4that a juvenile is a delinquent child.
35	35	5 “Conviction,” a finding or verdict of guilt for a criminal offense.
36	36	6 “Criminal history group,” the classification of an offender’s previous record of criminal
37	37	7convictions or adjudications of delinquency as set forth on the horizontal axis of the sentencing
38	38	8guidelines grid. 2 of 25
39	39	9 “Departure from the guidelines,” a sentence imposed outside the sentencing range
40	40	10contained in the applicable grid cell for the particular offense.
41	41	11 “Governing offense,” the offense having the highest offense seriousness level among
42	42	12multiple offenses arising out of the same criminal conduct.
43	43	13 “Grid cell,” the intersection on the sentencing guidelines grid between the offense
44	44	14seriousness level and the criminal history group.
45	45	15 “Intermediate sanction,” a non-incarcerative sentence, or portion thereof, which includes
46	46	16a level of restriction, such as standard probation, intensive supervision probation, community
47	47	17service, home confinement, and day reporting, and which may be coupled with components,
48	48	18such as residential programming, substance abuse treatment, restitution, continuing education,
49	49	19vocational training, special education, and psychological counseling.
50	50	20 “Mandatory minimum sentence,” the provision of a criminal penalty for a particular
51	51	21offense which specifies the minimum term of incarceration and prohibits suspension of any
52	52	22sentence, placement on file, continuance without a finding, probation, and release on parole until
53	53	23the minimum term of imprisonment has been served.
54	54	24 “Master crime list,” the list in which offenses in Massachusetts currently punishable by a
55	55	25term of imprisonment are ranked for purposes of the sentencing guidelines.
56	56	26 “Offense seriousness levels,” the categories for ranking criminal offenses as set forth in
57	57	27the master crime list and on the vertical axis of the sentencing guidelines grid.
58	58	28 “Same criminal conduct,” any two or more offenses committed during a single criminal
59	59	29incident. 3 of 25
60	60	30 “Sentencing Commission,” the Massachusetts Sentencing Commission as defined in G.L.
61	61	31c. 211E § 1.
62	62	32 “Sentencing event,” an appearance before a court of competent jurisdiction during which
63	63	33sentence is imposed for one or more convictions or adjudications of delinquency.
64	64	34 “Sentencing guidelines,” all provisions set forth in this chapter which direct or guide
65	65	35judges in sentencing.
66	66	36 “Sentencing guidelines grid,” the sentencing matrix, with offenses classified on a vertical
67	67	37axis and criminal history groups classified on a horizontal axis , and which contains a sentencing
68	68	38guidelines range within each grid cell.
69	69	39 “Sentencing guidelines range,” the range of any sentence, including the range of
70	70	40intermediate sanctions, which may be imposed in each grid cell without constituting a departure
71	71	41from the sentencing guidelines.
72	72	42 “Split sentence,” a sentence to a house of correction which is suspended in part and
73	73	43includes a specified period of incarceration followed by a specified period of probation or
74	74	44intermediate sanction or both.
75	75	45 “Staircased offense,” a criminal offense which is ranked in more than one offense
76	76	46seriousness level on the basis of the existence of a specified factor.
77	77	47 “Statutory minimum sentence,” the provision of a criminal penalty for a particular
78	78	48offense which does not require the imposition of incarceration, but specifies the minimum term
79	79	49of incarceration, when incarceration is imposed. 4 of 25
80	80	50 Section 2. Sentencing Guidelines Grid. There are established, consistent with the
81	81	51provisions of G.L. c. 211E § 3, sentencing guidelines in the form of a sentencing guidelines grid
82	82	52with offenses classified on the vertical axis according to seriousness and criminal history
83	83	53classified on the horizontal axis according to severity. Within each grid cell there is a sentencing
84	84	54guidelines range, consistent with the provisions of G.L. c. 211E § 3 (a) (3) (C). The sentencing
85	85	55guidelines grid includes three sentencing guidelines zones:- (1) an incarceration zone, where
86	86	56only a sentence to incarceration is within the sentencing guidelines range and a sentence to an
87	87	57intermediate sanction constitutes a departure from the sentencing guidelines; (2) a discretionary
88	88	58zone, where either a sentence to incarceration or a sentence to an intermediate sanction are
89	89	59within the sentencing guidelines range; and, (3) an intermediate sanction zone, where only a
90	90	60sentence to an intermediate sanction is within the sentencing guidelines range and a sentence to
91	91	61incarceration constitutes a departure from the sentencing guidelines. The following sentencing
92	92	62guidelines grid shall be used as a basis for sentencing for convictions of all applicable offenses
93	93	63for which incarceration is a possible sanction under existing statutes, except for those offenses
94	94	64with mandatory minimum sentences listed in § 8 (a) and (b) of this chapter.
95	95	65 Section 3. Master Crime List. Offenses which permit incarceration are ranked according
96	96	66to offense seriousness level. Murder, as defined in G.L. c. 265 § 1, is placed at the highest level
97	97	67of the sentencing guidelines grid and for this offense the sentencing provisions of G.L. c. 265 § 2
98	98	68apply. The offense seriousness rankings are set forth in the following master crime list, which
99	99	69contains the following information:-
100	100	70 (a) “Grid.” A “YES” in this column denotes application of the sentencing guidelines
101	101	71grid. A “NO” in this column indicates the sentencing guideline grid is not applicable, and an
102	102	72alternate penalty provision as provided for in this chapter is applicable. 5 of 25
103	103	73 (b) “Offense seriousness level.” All offenses on the master crime list are ranked
104	104	74according to seriousness. For offenses to which the sentencing guidelines grid applies, the
105	105	75offense seriousness level of the governing offense determines the placement of the offender on
106	106	76the vertical axis.
107	107	77 For all offenses, the offense seriousness level also represents the level to which a prior
108	108	78conviction is to be assigned for purposes of determining the criminal history group.
109	109	79 (c) “Notes.” The following notes apply to certain offenses contained in the master crime
110	110	80list:
111	111	81 (1) “Note A” refers to offenses where the sentencing guidelines range exceeds the
112	112	82statutory maximum sentence in certain grid cells. In such circumstances, the sentencing
113	113	83guidelines range applies, except that no sentence imposed may exceed the statutory maximum
114	114	84sentence, as provided in § 9 of this chapter.
115	115	85 (2) “Note B” refers to offenses where the statutory minimum sentence exceeds the
116	116	86sentencing guidelines range in certain grid cells. In such circumstances, it is not a departure
117	117	87from the sentencing guidelines for a judge to impose a sentence within the sentencing guidelines
118	118	88range, nor is it a departure from the sentencing guidelines for a judge to impose the statutory
119	119	89minimum sentence, as provided in § 8 (e) of this chapter.
120	120	90 (3) “Note C” refers to offenses with mandatory minimum sentences in violation of G.L.
121	121	91c. 94C. The sentencing guidelines for these offenses are set forth in § 8 (c) of this chapter.
122	122	92 (4) “Note D” refers to certain firearms offenses and certain offenses pertaining to
123	123	93operating a motor vehicle or boat under the influence which may have mandatory minimum 6 of 25
124	124	94sentences. The sentencing guidelines for these offenses are set forth in § 8 (a) and (b) of this
125	125	95chapter.
126	126	96 (5) “Note E” refers to certain other offenses which have mandatory minimum sentences.
127	127	97The sentencing guidelines for these offenses are set forth in § 8 (d) of this chapter.
128	128	98 (6) “Note F” refers to certain offenses for which a sentence to an intermediate sanction
129	129	99constitutes a departure from the sentencing guidelines.
130	130	100 (7) “Note G” refers to staircased offenses. The staircase factors are described in § 4 (a)
131	131	101of this chapter.
132	132	102 (8) “Note H” refers to offenses for which the criminal history group of the defendant is
133	133	103enhanced as described in § 4 (b) of this chapter.
134	134	104 (9) “Note I” refers to offenses for which the level is contingent on the level assigned to
135	135	105the underlying substantive offense and is the same as the level assigned to the underlying
136	136	106substantive offense, except that no sentence may exceed the statutory maximum sentence, as
137	137	107provided in § 9 of this chapter.
138	138	108 (10) “Note J” refers to offenses for which the level is contingent on the level assigned to
139	139	109the underlying substantive offense and is one level lower than the level assigned to the
140	140	110underlying substantive offense, except that no sentence may exceed the statutory maximum
141	141	111sentence, as provided in § 9 of this chapter.
142	142	112 (d) “Offense Reference” - the Massachusetts General Law reference for a particular
143	143	113offense. 7 of 25
144	144	114 (e) “Offense Penalty Reference” - the Massachusetts General Law reference for a
145	145	115particular offense penalty provision when different from the offense reference.
146	146	116 (f) “Staircase Factor” - a specified factor, beyond the required elements of for an offense,
147	147	117which determines the offense seriousness level.
148	148	118 (g) The master crime list also incorporates information existing elsewhere in the General
149	149	119Laws. Any discrepancies between the following items of information reproduced in the master
150	150	120crime list and as they appear in the General Laws are to be resolved in favor of those provisions
151	151	121of the General Laws which set forth the penalties for the particular offense.
152	152	122 (1) “Offense” - an abbreviated offense description;
153	153	123 (2) “Penalty Type” - felony or misdemeanor;
154	154	124 (3) “Mandatory Time” - the mandatory minimum sentence, where applicable;
155	155	125 (4) “Min H/C” - the statutory minimum sentence to the house of correction, where
156	156	126applicable;
157	157	127 (5) “Max H/C” - the statutory maximum sentence to the house of correction, where
158	158	128applicable;
159	159	129 (6) “Min Prison” - the statutory minimum sentence to the state prison, where applicable;
160	160	130and,
161	161	131 (7) “Max Prison” - the statutory maximum sentence to the state prison where applicable. 8 of 25
162	162	132 Where an offense is not found in the master crime list, the judge shall impose an
163	163	133appropriate sentence, having due regard for the purposes of sentencing set forth in G.L. c. 211E
164	164	134§ 2. The master crime list follows:-
165	165	135 Section 4. (a) Staircasing certain offenses. Certain offenses, broadly defined to
166	166	136encompass a wide range of behavior, are placed at more than one offense seriousness level in the
167	167	137master crime list. These offenses are identified by a staircased notation on the master crime list
168	168	138based on the following considerations:-
169	169	139 (1) Manslaughter in violation of G.L. c. 265 § 13 is a level eight offense where it is
170	170	140voluntary manslaughter and a level six offense where it is involuntary manslaughter.
171	171	141 (2) Assault and battery by means of a dangerous weapon in violation of G.L. c. 265 §
172	172	14215A is ranked according to the degree of injury to the victim as follows:-
173	173	143 Assault and battery by means of a dangerous weapon is a level six offense where there is
174	174	144significant injury to the victim. Significant injury includes: injuries which are characterized by a
175	175	145protracted period of total disability or long term impairment of function, loss of function of any
176	176	146body members, organ, or mental faculty; injuries, not necessarily permanently disabling, which
177	177	147require long term medical care or rehabilitative therapy; injuries which involve a gross
178	178	148disfigurement; and, injuries which result in a permanent residual disability or loss of function to
179	179	149a significant degree.
180	180	150 Assault and battery by means of a dangerous weapon is a level four offense where there
181	181	151is moderate injury to the victim. Moderate injury includes: injuries which involve extreme
182	182	152physical pain and some discernible disability or loss of function of some body member, organ, or 9 of 25
183	183	153mental faculty, such as fractures, internal injuries or wounds which are serious but not life
184	184	154threatening; and, psychological trauma that results in some temporary or partial disability.
185	185	155 Assault and battery by means of a dangerous weapon is a level three offense where there
186	186	156is no injury or minor injury to the victim. Minor injury includes: injuries which require some
187	187	157emergency treatment, such as lacerations, contusions, or abrasions, which have no residual
188	188	158effect; concussions without lasting neurological impact; physical injuries that are painful and
189	189	159obvious but not in any way disabling; and, minimal, psychological trauma without lasting effect.
190	190	160 (3) Armed robbery in violation of G.L. c. 265 § 17 is a level seven offense where there is
191	191	161a display of a gun. Any other violation of G.L. c. 265 § 17 is a level six offense with the
192	192	162exception of certain violations of G.L. c. 265 § 17 that are subject to the provisions of § 4 (b) of
193	193	163this chapter.
194	194	164 (4) Breaking and entering in violation of G.L. c. 266 §§ 16 through 18 is a level four
195	195	165offense where the breaking and entering involves a dwelling. Any other violation of G.L. c. 266
196	196	166§§ 16 through 18 is a level three offense.
197	197	167 Certain property offenses are ranked according to the value of property lost or destroyed
198	198	168as follows:-
199	199	169 Where the value of the property lost or destroyed is $50,000 or over, the offense is a level
200	200	170five offense.
201	201	171 Where the value of the property lost or destroyed is between $10,000 and $50,000, the
202	202	172offense is a level four offense. 10 of 25
203	203	173 Where the value of the property lost or destroyed is $10,000 or under, the offense is a
204	204	174level three offense.
205	205	175 In determining the appropriate offense seriousness level for a staircased offense, the
206	206	176judge may consider any evidence received during the proceedings; any victim impact statement;
207	207	177any presentence report, when the judge requests one; and, any other information that the judge
208	208	178deems credible.
209	209	179 Second and subsequent convictions. When a statute provides for a more severe penalty
210	210	180upon a second and subsequent conviction for an offense, the second or subsequent offense is
211	211	181elevated one level on the offense seriousness scale on the master crime list. Where the offense is
212	212	182at level eight, the offender shall be moved over one cell to the right to the next more serious
213	213	183criminal history group in the grid. When a defendant is charged as a second or subsequent
214	214	184offender under the relevant statute, the prior conviction or convictions that served as the basis for
215	215	185the second or subsequent charge shall not be counted in determining criminal history placement
216	216	186on the grid. Offenses that are subject to a more severe penalty for second and subsequent
217	217	187conviction are so designated in the master crime list.
218	218	188 Section 5. Criminal History Groups. There are five criminal history groups on the
219	219	189horizontal axis of the sentencing guidelines grid as follows:-
220	220	190 (a) Criminal History Group A, No/Minor Record, refers to a criminal record that
221	221	191contains no prior convictions of any kind; or, one to five prior convictions in any combination
222	222	192for offenses in levels one or two. 11 of 25
223	223	193 (b) Criminal History Group B, Moderate Record, refers to a criminal record that contains
224	224	194six or more prior convictions in any combination for offenses in levels one or two; or, one or two
225	225	195prior convictions in any combination for offenses in levels three or four.
226	226	196 (c) Criminal History Group C, Serious Record, refers to a criminal record that contains
227	227	197three to five prior convictions in any combination for offenses in levels three or four; or, one
228	228	198prior conviction for offenses in levels five or six.
229	229	199 (d) Criminal History Group D, Violent or Repetitive Record, refers to a criminal record
230	230	200that contains six or more prior convictions in any combination for offenses in levels three, four,
231	231	201five, or six; or, two or more prior convictions in any combination for offenses in levels five or
232	232	202six; or, one prior conviction for offenses in levels seven through nine.
233	233	203 (e) Criminal History Group E, Serious Violent Record, refers to a criminal record that
234	234	204contains two or more prior convictions in any combination for offenses in levels seven through
235	235	205nine.
236	236	206 Section 6. Determining Criminal History. In determining placement in the appropriate
237	237	207criminal history group on the sentencing guidelines grid, the following provisions shall apply:-
238	238	208 (a) Conviction-based criminal history. Only those prior offenses which resulted in a
239	239	209conviction shall be counted for criminal history placement on the sentencing guidelines grid. All
240	240	210convictions that occurred prior to the present sentencing event shall be counted for criminal
241	241	211history placement on the sentencing guidelines grid. The offense seriousness level of each prior
242	242	212conviction shall be determined by reference to the version of the master crime list in effect at the
243	243	213time of the sentencing event for the present offense. 12 of 25
244	244	214 (b) Incident-based criminal history. Multiple prior convictions arising from the same
245	245	215criminal conduct shall be counted as one prior conviction, based on the most serious offense.
246	246	216There shall be a rebuttable presumption that multiple prior convictions that have the same
247	247	217arraignment date shall be counted as one prior conviction, based on the most serious offense.
248	248	218Multiple convictions with the same arraignment date may each be counted separately for
249	249	219purposes of criminal history placement on the sentencing guidelines grid where each such
250	250	220conviction is not part of the same criminal conduct. Multiple convictions with different
251	251	221arraignment dates may be counted as a single conviction for purposes of criminal history
252	252	222placement on the sentencing guidelines grid where each such conviction was part of the same
253	253	223criminal conduct.
254	254	224 (c) Juvenile record. Adjudications of delinquency for offenses classified in offense
255	255	225seriousness levels seven through nine on the master crime list shall be considered as convictions
256	256	226of the offenses involved and counted for purposes of criminal history. Adjudications of
257	257	227delinquency for offenses classified below level seven shall not be counted for purposes of
258	258	228criminal history, but the existence of such adjudications may be considered as an aggravating
259	259	229factor for departure from the sentencing guidelines range.
260	260	230 (d) Federal and out-of-state criminal records. Prior convictions in federal and other
261	261	231jurisdictions shall be counted for criminal history purposes. The offense of prior conviction shall
262	262	232be assigned to the same offense seriousness level as the Massachusetts offense in the master
263	263	233crime list with the same or substantially the same elements.
264	264	234 (e) Prior convictions for staircased offenses. Where the prior conviction is a staircased
265	265	235offense and the offense seriousness level of the staircased offense is not apparent from the 13 of 25
266	266	236criminal record, there is a rebuttable presumption that the prior conviction is in the lowest
267	267	237staircased level for that offense in the master crime list.
268	268	238 (f) Determination of criminal history. The judge shall decide any material contested
269	269	239issues relating to criminal history.
270	270	240 Section 7. Sentencing Pursuant to the Sentencing Guidelines Grid. Sentencing pursuant
271	271	241to the sentencing guidelines grid shall be based on the offense or offenses of conviction and the
272	272	242criminal history of the defendant. The offense seriousness level for each offense of conviction
273	273	243shall be determined from the master crime list. The appropriate level of staircased offenses shall
274	274	244be determined by taking into account the relevant staircasing factors set forth herein. The
275	275	245number and types of prior convictions shall be determined in accordance with § 5 of this chapter
276	276	246to determine the appropriate criminal history group for the offender. The sentencing guidelines
277	277	247range shall be determined by identifying that grid cell where the seriousness level of the
278	278	248governing offense on the vertical axis intersects with the classification of the criminal history
279	279	249group on the horizontal axis.
280	280	250 (a) Sentencing within the guideline range. The sentencing judge may impose a sentence
281	281	251to incarceration within the sentencing guidelines range by imposing a maximum sentence from
282	282	252within the guideline range of the appropriate grid cell. Unless otherwise noted herein, the
283	283	253minimum sentence will always be two-thirds of the maximum sentence and will establish the
284	284	254initial parole eligibility date. This applies to all sentences of incarceration of two months or
285	285	255longer to houses of correction and all sentences to the state prison. Where the maximum
286	286	256sentence of incarceration to a house of correction is less than two months, the minimum sentence
287	287	257need not be two-thirds of the maximum sentence. Where the maximum sentence is selected from 14 of 25
288	288	258the guideline range in the applicable grid cell, the sentence will be within the guidelines and no
289	289	259written explanation is necessary.
290	290	260 (b) Departing from the guidelines range. The sentencing judge may impose a sentence
291	291	261below or above the sentencing guidelines range by setting forth in writing reasons for departing
292	292	262from that range on a sentencing statement, consistent with the provisions of G.L. c. 211E, § 3
293	293	263(h). Any departure shall be based on a finding that one or more mitigating or aggravating
294	294	264circumstances exist as provided in this chapter. In imposing a sentence of incarceration that
295	295	265departs from the sentencing guidelines range, the minimum sentence shall be two-thirds of the
296	296	266maximum sentence. A sentence that departs below the guidelines range may include a sentence
297	297	267to any lesser term of incarceration or any intermediate sanction.
298	298	268 (1) Mitigating and aggravating circumstances. The following non-exclusive mitigating
299	299	269and aggravating circumstances may guide departures from the sentencing guidelines range. The
300	300	270presence of any such circumstance may warrant departure from the sentencing guidelines range
301	301	271in the discretion of the sentencing judge. In determining mitigation or aggravation, the judge
302	302	272may consider any evidence received during the proceedings; any victim impact statement; any
303	303	273presentence report, when the judge requests one; and, any other information that the judge deems
304	304	274credible.
305	305	275 (A) Mitigating circumstances. The non-exclusive list of mitigating circumstances
306	306	276includes the following:-
307	307	277 The defendant was a minor participant in the criminal conduct.
308	308	278 The defendant was suffering from a mental or physical condition that significantly
309	309	279reduced the culpability of the defendant for the offense. 15 of 25
310	310	280 The victim was an initiator, aggressor, or provoker of the offense.
311	311	281 The sentence was imposed in accordance with a jointly agreed recommendation.
312	312	282 The age of the defendant at the time of the offense.
313	313	283 The defendant verifies current involvement in, or successful completion of, a substance
314	314	284abuse or other treatment program that began after the date of the offense.
315	315	285 (B) Aggravating circumstances. The non-exclusive list of aggravating circumstances
316	316	286includes the following:-
317	317	287 The victim was especially vulnerable due to age or physical or mental disability.
318	318	288 The victim was treated with particular cruelty.
319	319	289 The defendant used position or status to facilitate commission of the offense, such as a
320	320	290position of trust, confidence or fiduciary relationship.
321	321	291 The defendant was a leader in the commission of an offense involving two or more
322	322	292criminal actors.
323	323	293 The defendant committed the offense while on probation, on parole, or during escape.
324	324	294 The defendant has committed repeated offenses against the same victim.
325	325	295 The sentencing judge shall not be required to conduct an evidentiary hearing in
326	326	296determining aggravating or mitigating factors.
327	327	297 (c) Concurrent or consecutive sentencing. When a defendant is convicted of multiple
328	328	298offenses arising out of the same criminal conduct, the judge may impose concurrent or 16 of 25
329	329	299consecutive sentences, subject to the following provisions. The judge shall impose a consecutive
330	330	300sentence when the imposition of a consecutive sentence is required by the terms of the statute
331	331	301pertaining to a particular offense. The judge may impose concurrent or consecutive sentences of
332	332	302incarceration in the house of correction for each offense where such incarceration is permitted by
333	333	303law. The judge may impose concurrent or consecutive sentences of incarceration in the state
334	334	304prison for each offense where such incarceration is permitted by law, subject to the following
335	335	305limitation. The judge may impose consecutive sentences to the state prison by selecting a
336	336	306sentence from the guidelines range in the applicable grid cell for each offense to be sentenced
337	337	307consecutively. The total of such consecutive sentences may be combined up to twice the upper
338	338	308limit of the sentencing guidelines range in the grid cell of the governing offense. Where the total
339	339	309of the combined sentences exceeds twice that upper limit, it shall be considered a departure from
340	340	310the guidelines and the judge is required to provide written reasons. The existence of multiple
341	341	311victims is recognized as an aggravating circumstance which may justify such a departure.
342	342	312 Any sentence imposed as concurrent or consecutive to a governing offense may be for a
343	343	313period of incarceration that is less than the lower limit of the sentencing guidelines range
344	344	314contained in the applicable grid cell or for any level of intermediate sanction, without
345	345	315constituting a departure from the sentencing guidelines.
346	346	316 When a defendant is convicted of multiple offenses which do not arise out of the same
347	347	317criminal conduct or when a defendant at the time of sentencing is currently serving a sentence for
348	348	318another criminal offense, the judge may impose either a concurrent or consecutive sentence from
349	349	319within the sentencing guidelines range of the applicable grid cell without the limitation on
350	350	320consecutive sentences to the state prison set forth in this section. 17 of 25
351	351	321 Section 8. Sentencing for Offenses with Mandatory Minimum Terms. Sentencing
352	352	322guidelines for offenses with mandatory minimum terms are as follows:-
353	353	323 (a) Firearms offenses. No departures below the mandatory minimum sentences for
354	354	324firearms offenses in violation of G.L. c. 269 §§ 10 (a), 10 (c), 10 (d), or 10E are permitted.
355	355	325These enumerated mandatory firearms offenses are not integrated into the guidelines grid. The
356	356	326sentencing guidelines for these mandatory firearms offenses are the mandatory sentencing
357	357	327provisions of the existing statutes. The minimum term of incarceration shall be no less than the
358	358	328mandatory minimum sentence provided in the statutes enumerated in this paragraph. The
359	359	329sentencing judge is required to impose a minimum and a maximum sentence, but the minimum
360	360	330sentence need not be two-thirds of the maximum. For purposes of determining the criminal
361	361	331history group for a defendant with prior mandatory firearms convictions, the master crime list
362	362	332provides the offense seriousness level corresponding to the sentencing guidelines grid for each
363	363	333firearms offense with a mandatory minimum sentence.
364	364	334 (b) Operating under the influence offenses. (1) For purposes of this chapter, operating
365	365	335under the influence offenses refer to offenses enumerated in the second paragraph of c. 90 § 23,
366	366	336in c. 90 § 24 (1) (a) (1), and in c. 90B § 8 (a) (1) (A). With the exception of the departure
367	367	337enumerated in sub-paragraph (b) (2) of this section, no departures below any mandatory
368	368	338minimum sentences for operating under the influence offenses are permitted. These operating
369	369	339under the influence offenses are not integrated into the guidelines grid. The sentencing
370	370	340guidelines for these operating under the influence offenses are the mandatory sentencing
371	371	341provisions of the existing statutes. The minimum term of incarceration shall be no less than any
372	372	342mandatory minimum sentence provided in the statutes enumerated in this paragraph. The 18 of 25
373	373	343sentencing judge is required to impose a minimum and a maximum sentence, but the minimum
374	374	344sentence need not be two-thirds of the maximum.
375	375	345 (2) A judge may sentence a defendant, who has been previously convicted of a violation
376	376	346of c. 90 § 24 (1) (a) (1) or c. 90B § 8 (a) (1) (A) or assigned to an alcohol or controlled substance
377	377	347education, treatment, or rehabilitation program by a court of the commonwealth or any other
378	378	348jurisdiction because of a like violation not more than two times within ten years preceding the
379	379	349date of the commission of the operating under the influence offense for which he has been
380	380	350convicted, to a long term residential substance abuse treatment program, approved by the office
381	381	351of community corrections, as established in G.L. c. 211F § 2 (a), in lieu of imposing the
382	382	352mandatory minimum sentence. No other departures below any mandatory minimum sentences
383	383	353for operating under the influence offenses are permitted.
384	384	354 (3) For purposes of determining the criminal history group for a defendant with prior
385	385	355convictions for operating under the influence offenses, the master crime list provides the offense
386	386	356seriousness level for each operating under the influence offense.
387	387	357 (4) Nothing in this section shall be found to prohibit a sentence pursuant to c. 90 § 24 (1)
388	388	358(a) (4) or c. 90B § 8 (a) (3) (A).
389	389	359 (c) Offenses in violation of the controlled substances act. Controlled substances offenses
390	390	360with mandatory minimum terms are integrated into the sentencing guidelines grid. As set forth
391	391	361in the master crime list, violations of G.L. c. 94C § 32E (b) (4) and § 32E (c) (4) are level eight
392	392	362offenses; violations of G.L. c. 94C §§ 32E (a) (4), 32E (b) (3), 32E (c) (2), and 32E (c) (3) are
393	393	363level seven offenses; violations of G.L. c. 94C §§ 32 (b), 32A (d), 32E (a) (3), 32E (b) (2), 32E
394	394	364(c) (1), 32F (a), 32F (d), and 32K are level six offenses; violations of G.L. c. 94C §§ 32A (b), 19 of 25
395	395	36532B (b), 32E (a) (2), 32E (b) (1), 32F (b), and 32F (c) are level five offenses; and, violations of
396	396	366G.L. c. 94C §§ 32A (c), 32E (a) (1), and 32J are level four offenses.
397	397	367 For the offenses enumerated in the preceding paragraph, a judge shall provide written
398	398	368reasons for sentencing below a mandatory minimum term even though the judge may be
399	399	369imposing sentence that is within the guidelines range of the sentencing guidelines grid. The
400	400	370standard for sentencing below the mandatory minimum term is more stringent than the standard
401	401	371for departure below a sentencing guidelines range. A departure below a mandatory minimum
402	402	372sentence for the controlled substances offenses enumerated above is not permitted unless the
403	403	373defendant has no prior conviction for a controlled substance offense in level seven or eight and
404	404	374the sentencing judge finds the existence of one or more mitigating circumstances.
405	405	375 A judge may impose a sentence below the sentencing guidelines range, provided that:- (a)
406	406	376the criminal history of the defendant falls in criminal history group A or B in the sentencing
407	407	377guidelines grid; and, (b) there is a substantial mitigating factor in addition to the mitigating
408	408	378circumstance or circumstances that justified the departure below the mandatory minimum
409	409	379sentence that should result in a sentence below the sentencing guidelines range.
410	410	380 Where the judge departs below the mandatory minimum sentence and imposes an
411	411	381incarceration sentence within the guidelines range or below the guidelines range, the minimum
412	412	382sentence shall be two-thirds of the maximum sentence; the defendant shall be eligible for parole
413	413	383at the expiration of the minimum sentence; and, the defendant shall be eligible for earned good
414	414	384time, work release, and other pre-release programs deemed appropriate by the correctional
415	415	385authority with custody responsibility, notwithstanding the provisions of G.L. c. 94C § 32H. 20 of 25
416	416	386 Where the judge does not depart from the mandatory minimum sentence and imposes a
417	417	387sentence pursuant to any mandatory sentencing provision, the minimum sentence need not be
418	418	388two-thirds of the maximum sentence, and the defendant shall not be eligible for parole, earned
419	419	389good time, work release, or other pre-release programs until he has served the mandatory
420	420	390minimum sentence, as mandated by G.L. c. 94C, § 32H.
421	421	391 (d) Other offenses with mandatory minimum terms. No departures below any mandatory
422	422	392minimum sentence provided for in these enumerated sections are permitted. As set forth in the
423	423	393master crime list, violations of G.L. c. 90 § 24G (a), c. 90B § 8B (1), c. 272 § 4B, and c. 272 § 6
424	424	394are level six offenses; violations of G.L. c. 265 § 43 (b), c. 265 § 43 (c), and c. 272 § 4A are
425	425	395level five offenses; violations of G.L. c. 272 § 4A, c. 90 § 24L (1), c. 90B § 8A (1), c. 266 §
426	426	39627A, . c. 266 § 28 (a), c. 268 § 39, and c. 272 § 7 are level four offenses.
427	427	397 For these offenses the minimum sentence shall be two-thirds of the maximum sentence
428	428	398selected from within the applicable guidelines range, provided that all sentences require a
429	429	399minimum term of incarceration equal to or greater in length than the mandatory minimum
430	430	400sentence. It shall not constitute a departure for a judge to impose a sentence exceeding the
431	431	401guidelines range of the applicable grid cell in order to comply with the requirement that the
432	432	402minimum term of incarceration must be equal to or greater in length than the mandatory
433	433	403minimum sentence and the requirement that the minimum sentence shall be two-thirds of the
434	434	404maximum sentence.
435	435	405 The defendant shall be eligible for parole at the expiration of the minimum sentence. The
436	436	406defendant shall not be eligible for earned good time, work release, and other pre-release 21 of 25
437	437	407programs deemed appropriate by the correctional authority with custody responsibility, until the
438	438	408defendant has served the mandatory minimum sentence.
439	439	409 (e) Offenses with statutory minimum sentences. For those offenses with a statutory
440	440	410minimum sentence, it shall not be considered a departure for the judge to impose a sentence
441	441	411within the sentencing guidelines range, even though the sentence may be below the statutory
442	442	412minimum sentence. Where the statutory minimum sentence exceeds the sentencing guidelines
443	443	413range, the imposition of the statutory minimum sentence shall not constitute a departure from the
444	444	414sentencing guidelines.
445	445	415 Section 9. The Statutory Maximum Term. Notwithstanding G.L. c. 211E § 3 (c), a judge
446	446	416may not impose any sentence which exceeds the statutory maximum term set forth in the statute
447	447	417that establishes the penalty for the particular offense.
448	448	418 Section 10. District and Municipal Court Jurisdiction. When a district or municipal court
449	449	419judge is imposing a sentence and the sentencing guidelines range in the applicable grid cell
450	450	420exceeds the district and municipal court sentencing jurisdiction of two and one half years, the
451	451	421sentencing guidelines range shall be an incarceration zone range of 20 to 30 months and it shall
452	452	422not constitute a departure from the sentencing guidelines for a district or municipal court judge to
453	453	423impose a sentence of incarceration from within the 20 to 30 month sentencing guidelines range.
454	454	424 Section 11. Sentencing to Intermediate Sanctions. Guidelines for sentencing to
455	455	425intermediate sanctions, as defined in G.L. c. 211F § 1, are integrated into the sentencing
456	456	426guidelines grid in the discretionary zone and the intermediate sanctions zone as described in § 2
457	457	427of this chapter. 22 of 25
458	458	428 There are four levels of intermediate sanctions according to the severity of the
459	459	429restrictions on personal liberty and the intensity of supervision. The four levels of intermediate
460	460	430sanctions are integrated into the grid as follows:-
461	461	431 Level IV, 24-hour restriction, under which the offender is subject to 24-hour restriction
462	462	432and accountability of his whereabouts. This represents the maximum level of restriction and
463	463	433accountability short of incarceration.
464	464	434 Level III, daily accountability, under which the offender is subject to daily accountability
465	465	435of his whereabouts. This represents the level of restriction and accountability that falls in
466	466	436between 24-hour restriction and standard probation supervision.
467	467	437 Level II, standard probation supervision, under which the offender is subject to weekly
468	468	438accountability of his whereabouts. This represents the level of restriction and accountability that
469	469	439is typically associated with standard probation supervision.
470	470	440 Level I, financial accountability, which represents the level of restriction and
471	471	441accountability that is typically associated with administrative probation. It is primarily designed
472	472	442to monitor the timely payment of restitution, fines, victim/witness fees, and the like, by the
473	473	443offender.
474	474	444 A sentence to an intermediate sanction shall be imposed as a condition of probation,
475	475	445consistent with the provisions of G.L. c. 211F § 3 (c). The length of the probation period that
476	476	446may be imposed shall be consistent with the provisions of G.L. c. 276 § 87. The sentencing
477	477	447judge shall specify the intermediate sanction level at which the offender will start serving the
478	478	448term of probation and may also include a minimum period during which the offender is required
479	479	449to be supervised at that level. The supervising probation officer has the discretion to move a 23 of 25
480	480	450probationer down in level or levels in appropriate circumstances, without judicial consultation,
481	481	451consistent with any special conditions or time restrictions specified by the judge. Such a
482	482	452reduction in the intermediate sanction level by a probation officer shall not go below the
483	483	453guideline levels set forth in the grid cell in which the offender was sentenced.
484	484	454 A judge has the exclusive authority to increase an intermediate sanction level or add
485	485	455program components.
486	486	456 Section 12. Revocation of Probation. The sentencing guidelines do not apply to a
487	487	457probation revocation hearing. In imposing a sentence at a probation revocation hearing, the
488	488	458judge has the discretion to impose any sentence up to the statutory maximum. When imposing a
489	489	459sentence of incarceration, the judge shall impose both a minimum sentence and a maximum
490	490	460sentence and the minimum sentence must be two-thirds of the maximum sentence.
491	491	461 Section 13. Split Sentences. A sentence to the state prison shall not be suspended in
492	492	462whole or in part. A sentence to a house of correction shall not be suspended in whole, but a
493	493	463sentence to a house of correction may be suspended in part to permit the imposition of a split
494	494	464sentence. In imposing a split sentence, a judge shall impose a minimum and a maximum term as
495	495	465provided by § 6 (a) of this chapter and shall specify the period of incarceration to be served in
496	496	466the house of correction. The judge shall also specify the term of probation to be served
497	497	467subsequent to the period of incarceration.
498	498	468 Section 14. Financial Sanctions. When appropriate, a judge shall order fines or
499	499	469restitution or both as part of any sentence. Restitution to the victim shall be a priority of the
500	500	470judge at the time of sentencing, regardless of whether the offender is incarcerated. 24 of 25
501	501	471 Section 15. Imposing a Sentence. In sentencing a defendant after trial or after
502	502	472acceptance of a guilty plea pursuant to either Rule 12 of the Rules of Criminal Procedure or Rule
503	503	4734 (c) of the District/Municipal Court Rules of Criminal Procedure, the court shall comply with
504	504	474the provisions of Rule 28 of the Massachusetts Rules of Criminal Procedure. The judge shall
505	505	475allow both parties to be heard at sentencing on all sentencing issues. In determining the
506	506	476sentence, the judge may rely on any evidence received during the proceedings; any victim impact
507	507	477statement; any presentence report, when the judge requests one; and, any other information the
508	508	478judge deems credible. A sentencing statement shall be completed in accordance with G.L. c.
509	509	479211E § 3 (h) for each defendant being sentenced. The sentencing judge shall sign the completed
510	510	480sentencing statement and a copy shall be submitted to the Sentencing Commission as provided in
511	511	481G.L. c. 211E § 3 (h).
512	512	482 Section 16. Right of Appeal. The defendant or the commonwealth may appeal a
513	513	483sentence imposed pursuant to sentencing guidelines, to the extent an appeal is permitted in
514	514	484accordance with the provisions of section 4 of chapter 211E of the General Laws. The
515	515	485provisions of sections 28A and 28B of chapter 278 of the General Laws shall not apply to any
516	516	486offense committed on or after the effective date of this chapter.
517	517	487 Section 17. Severability. Where any provision of this chapter or the application thereof
518	518	488to any person or circumstance, shall, for any reason, be held invalid, the remainder of this
519	519	489chapter or the application of such provision to persons or circumstances other than those as to
520	520	490which it is held invalid shall not be affected thereby.
521	521	491 Section 18. Split Sentences. Section 3 (a) (2) of chapter 211E of the General Laws is
522	522	492hereby amended by inserting after the phrase, “Said sentence shall not be suspended in whole or 25 of 25
523	523	493in part,” the following: “except for the imposition of split sentences to the house of correction
524	524	494pursuant to chapter 211G.”
525	525	495 Section 19. Section 3 (e) of chapter 211E of the General Laws is hereby amended by
526	526	496inserting after the phrase “impose a sentence below any mandatory minimum term prescribed by
527	527	497statute,” the following: “only to the extent provided by chapter 211G,”.
528	528	498 Section 20. Effective Date. The provisions of this chapter shall take effect on January 1,
529	529	4992020 and the sentencing guidelines and other related provisions contained herein shall apply to
530	530	500all felonies and misdemeanors committed on or after that date. All offenses committed prior to
531	531	501January 1, 2020 shall be governed by the laws, including but not limited to those on sentencing,
532	532	502parole, and probation, in effect at the time the offense is committed. Any amendments to the
533	533	503sentencing guidelines shall apply to all offenses committed on or after the effective date of the
534	534	504amendment.