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