COMMONWEALTH vs. RAYMOND A. MCQUOID.

COMMONWEALTH vs. RAYMOND A. MCQUOID.

369 Mass. 925

February 3, 1976 - March 15, 1976

Worcester County

Present: HENNESSEY, C.J., REARDON, BRAUCHER, KAPLAN, & WILKINS, JJ.

For the reasons stated in Commonwealth v. Jackson, ante, 904 (1976), a mandatory minimum one-year sentence imposed under G. L. c. 269, Section 10 (a), did not constitute cruel and unusual punishment, did not deny the defendant due process of law, and did not violate the separation of powers doctrine embodied in art. 30 of the Declaration of Rights. [926-927]

General Laws c. 269, Section 10 (a), in providing a mandatory minimum sentence of one year for carrying a firearm without a license, did not deprive the defendant of equal protection of the laws. [927-928]

COMPLAINT received and sworn to in the Central District Court of Worcester on April 25, 1975.

On appeal to the Superior Court, the case was heard by Meagher, J., and reported by him to the Appeals Court.

The Supreme Judicial Court, on its own initiative, ordered direct appellate review.

Robert V. Mulkern for the defendant.

James P. Donohue, Assistant District Attorney, for the Commonwealth.

Page 926

HENNESSEY, C.J. On October 9, 1975, the defendant was found guilty by a Superior Court judge of carrying a firearm without a license in violation of G. L. c. 269, Section 10 (a), as amended by St. 1975, c. 113, Section 2. He was sentenced, as provided by Section 10 (a), to the mandatory minimum of one year in a house of correction, execution of which was stayed pending appellate review.

The facts are as follows. On April 24, 1975, after finishing work as a loader-operator for the Leicester highway department around noon, the defendant spent the next five or six hours drinking heavily at three different places in the town of Leicester. When he returned home later that day, the defendant learned that his high school class ring had arrived C.O.D. at the post office. Because his wife refused to give him the money to pick up the ring, the defendant decided to sell his gun which was kept at home for his wife's protection. En route to sell the gun, the defendant was stopped by police for operating under the influence of liquor. Pursuant to a search of the defendant, the police found a loaded gun in his pants pocket. The defendant's license to carry the gun had expired several months prior to this incident.

The trial judge found, pursuant to the defendant's request for findings of fact, that on April 24, 1975, the defendant was not engaged in the commission of a crime of violence nor did he intend to commit a crime by using the gun, but rather that he was carrying it in order to transport it to a gun dealer for sale. The judge, denying the defendant's motion to dismiss, reported the case to this court in accordance with G. L. c. 278, Section 30A, for a determination of questions of law raised by the defendant.

The present case involves essentially the same issues as Commonwealth v. Jackson, ante, 904 (1976), decided this day. In that case, we held that G. L. c. 269, Section 10 (a), was a valid exercise of legislative authority, since a mandatory minimum one-year sentence for the unlawful carrying of a firearm does not constitute cruel and unusual punishment, deny the defendant due process of law

Page 927

or violate the separation of powers doctrine embodied in art. 30 of the Declaration of Rights.

In the present case, the only additional question [Note 1] raised is whether the Section 10 (a) mandatory minimum sentence deprives the defendant of equal protection of the laws in contravention of the Fourteenth Amendment. Thus, the defendant contends that Section 10 (a) results in invidious discrimination, since only violators of this statute are subjected to a mandatory sentence, whereas offenders of other penal statutes who are sentenced to one year are eligible for parole and good conduct deductions. The due process analysis in Jackson, supra at 915-916, adequately demonstrates that the "challenged distinction rationally furthers some legitimate, articulated state purpose." McGinnis v. Royster, 410 U.S. 263, 270 (1973). It is clear from Jackson that deterrence of illegal gun use is a legitimate governmental interest and that the imposition of a mandatory minimum sentence of one year bears a rational relationship to that goal. Cf. Amado v. Superintendent, M.C.I. Walpole, 366 Mass. 45 , 49-50; Warden v. Marrero, 417 U.S. 653, 662 (1974). By singling out the unlawful carrying of a firearm for a mandatory sentence, the Legislature does not abridge the defendant's rights, for, in confronting a multitude of evils, it may address itself to the phase of the problem most urgently requiring remedial action. Williamson v. Lee Optical of Okla. Inc., 348 U.S. 483, 489 (1955). Although other crimes which may be regarded as equally serious do not carry severe penalties, "[a] classification having some reasonable basis does not offend against . . . [the equal

Page 928

protection] clause merely because . . . in practice it results in some inequality." Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78 (1911).

We thus answer the questions reported by the trial judge relating to the constitutionality of Section 10 (a) in the negative, for we find no violation of either the Eighth or the Fourteenth Amendment to the United States Constitution or art. 30 of the Massachusetts Declaration of Rights.

So ordered.

FOOTNOTES

[Note 1] The defendant also argues that Section 10 (a) constitutes an unlawful exercise of executive powers in violation of art. 30. We cannot accept this contention in view of our separation of powers discussion in Jackson. We merely add that the power to grant parole or good conduct deductions derives from statute, and, thus, may be limited by the Legislature pursuant to its power to fix penalties. Cf. Amado v. Superintendent, M.C.I. Walpole, 366 Mass. 45 (1974); Bel v. Chernoff, 390 F. Supp. 1256 (D. Mass. 1975).