Commonwealth v. Belton

This case comes to us in an unusual posture. On June 2, 2010, a grand jury returned two indictments in this case. The caption on indictment 001 reads, “Unlawful Distribution of Class B Controlled Substance, C. 94C, § 32.” Section 32 of G.L. c. 94C, however, pertains to class A substances. The body of the indictment states, “The jurors for the Commonwealth of Massachusetts on their oath present that Jonathan Belton, on March 10, 2010, did unlawfully, knowingly and intentionally distribute to Kevin McElmoyle a certain controlled substance, to wit: cocaine, a Class B controlled substance under the provisions of G.L. c. 94C, § 31.” Section 31 does not state any crime; it merely sets out the classes of controlled substances.

The second page of that indictment also identifies G.L. c. 94C, § 32, in the caption. The body of the indictment on this page lists prior drug distribution offenses of which the defendant has been convicted and states that “this is therefore a second and subsequent such offense.” More than a year after the indictment, on October 4, 2011, the Commonwealth moved to amend the indictment. The motion was argued on the first day of jury selection, November 14, 2011.

General Laws c. 94C, § 32A, which relates to the distribution of class B substances, contains four subsections. Subsection ( a ) criminalizes distribution of class B substances. Subsection ( b ) provides criminal penalties where a conviction under § 32A is a second or subsequent offense, that is, committed after “one or more prior convictions of manufacturing, distributing, dispensing, or possessing with the intent to manufacture, distribute or dispense a controlled substance.” Subsection ( c ) provides harsher penalties than subsection ( a ) for distribution of three particular class B substances: coca leaves and their derivatives, including cocaine; phencyclidine (PCP); and methamphetamine. Subsection ( d ) provides criminal penalties where a conviction on subsection ( c ) is a second or subsequent offense.

In its written motion, the Commonwealth argued that the caption was in error, but that the body of the indictment “clearly” alleged a violation of subsections 32A( c ) and ( d ). The Commonwealth, however, argued before the judge that it wanted to amend the body of the indictment “where it says General Laws Chapter 94C, section 31 to Chapter 94C, section 32A( b ),” one of the second or subsequent offense provisions. The Commonwealth agreed at argument with the judge's characterization of its position, that, for a year, the indictment “in fact, did not allege a crime,” but it argued that the text of the first page of the indictment prior to the citation of § 31 adequately put the defendant on notice that he was charged under § 32A( b ).

The judge, concluding, on the basis of the Commonwealth's representation, that the Commonwealth had failed “for over a year to realize that it hadn't charged a crime,” dismissed the second and subsequent offense portion of the indictment, but, apparently concluding that the first page could have been understood at least to charge a violation of G.L. c. 94C, § 32A( a ), he allowed the motion only insofar as it sought to amend the first page of the indictment to allege a violation of that subsection.

The Commonwealth does not contest the judge's amendment of the first portion of the indictment to allege a violation of G.L. c. 94C, § 32A( a ), but it argues that it was an improper sanction to dismiss the second and subsequent offense portion of the indictment. It asks us to reinstate that portion of the indictment and to construe it to state a violation of G.L. c. 94C, § 32A( b ).

We must take the case in the posture presented to us. Because the Commonwealth does not contest the amendment that was allowed, we must assume it to have been appropriate and determine whether the judge abused his discretion in declining to make an amendment to the second and subsequent offense portion of the indictment so that it charged a violation of G.L. c. 94C, § 32A( b ). We review the judge's denial of the motion to amend the second and subsequent offense portion of the indictment for abuse of discretion. See Stranad v. Commonwealth, 366 Mass. 847, 847–848, 318 N.E.2d 617 (1974) (decision on motion to amend is within trial judge's discretion). See also Commonwealth v. Buelterman, 68 Mass.App.Ct. 829, 834, 865 N.E.2d 809 (2007); Mass.R.Crim.P. 4(d), 378 Mass. 849 (1979).

Given the footing on which the motion was argued to the judge below, we see no abuse of discretion. A judge presented with a motion to amend an indictment that is over a year old and that does not charge any crime would be well within his or her discretion in denying the motion altogether. The judge's determination, in essence that the prejudice was not so great in allowing in the circumstances a late amendment of the less serious portion of the indictment, but that the prejudice would have been too great had he allowed such a late amendment of the more serious portion, while not compelled, likewise was within his broad discretion. The dismissal of the second and subsequent offense portion of the indictment followed from this proper exercise of discretion.

Order on motion to amend indictment affirmed.
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