Bill S.2054

FILED ON: 11/7/2011

SENATE . . . . . . . . . . . . . . No. 2054

The Commonwealth of Massachusetts

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In the Year Two Thousand Eleven

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An Act relative to habitual offenders, sentencing and improving law enforcement tools.

Whereas, The deferred operation of this act would tend to defeat its purpose, which is to strengthen laws relative to habitual offenders, update sentencing laws and to provide additional law enforcement tools, therefore, it is hereby declared to be an emergency law, necessary for the immediate preservation of the public safety.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. Section 3 of chapter 22E of the General Laws, as appearing in the 2010 Official Edition, is hereby amended by inserting after the first sentence the following sentence:- The trial court and probation department shall work in conjunction with the director to establish and implement a system for the electronic notification to the department whenever a person is convicted of an offense that requires the submission of a DNA sample under this section.

SECTION 2. Section 4 of said chapter 22E, as so appearing, is hereby amended by striking out, in line 3, the words “Only a” and inserting in place thereof the following word: - A.

SECTION 3. Said section 4 of said chapter 22E, as so appearing, is hereby further amended by inserting after the word “including”, in lines 7 and 8, the following words:- buccal swabs and.

SECTION 4. Section 11 of said chapter 22E, as so appearing, is hereby amended by striking out, in line 2, the word “refuses”, and inserting in place thereof the following word:- fails.

SECTION 5. Section 5 of chapter 27 of the General Laws, as so appearingis hereby amended by inserting after the word “require”, in line 33, the following words:- ; and (i) administer and oversee mandatory post-release supervision functions as set forth in subsection (a) of section 133D of chapter 127 and in chapter 127A.

SECTION 6. Subsection (b) of section 32 of chapter 94C of the General Laws, as so appearing, is hereby amended by striking out, in lines 15, 17 and 20, the word “five” and inserting in place thereof, in each instance, the following figure:- 3½.

SECTION 7. Subsection (b) of section 32A of said chapter 94C, as so appearing, is hereby amended by striking out, in lines 15 and 18, the word “three” and inserting in place thereof, in each instance, the following figure:- 2.

SECTION 8. Subsection (d) of said section 32A of said chapter 94C, as so appearing, is hereby amended by striking out, in line 42, the word “five” and inserting in place thereof the following figure:- 3½.

SECTION 9. Subsection (b) of section 32B of said chapter 94C, as so appearing, is hereby amended by striking out, in line 16, the word “two” and inserting in place thereof the following words:- 18 months.

SECTION 10. Said subsection (b) of said section 32B of said chapter 94C, as so appearing, is hereby further amended by striking out, in line 19, the words “two years” and inserting in place thereof the following words:- 18 months.

SECTION 11. Paragraph (2) of subsection (a) of section 32E of said chapter 94C, as so appearing, is hereby amended by striking out, in lines 19 and 21, the word “three” and inserting in place thereof, in each instance, the following figure:- 2.

SECTION 12. Paragraph (3) of said subsection (a) of said section 32E of said chapter 94C, as so appearing, is hereby amended by striking out, in line 27 and in line 29, the first time it appears, the word “five” and inserting in place thereof, in each instance, the following figure:- 3½.

SECTION 13. Paragraph (4) of said subsection (a) of said section 32E of said chapter 94C, as so appearing, is hereby amended by striking out, in lines 33 and 35, the word “ten” and inserting in place thereof the following figure:- 8.

SECTION 14. Subsection (b) of said section 32E of said chapter 94C, as so appearing, is hereby further amended by striking out paragraph (1) and inserting in place thereof the following paragraph:-

(1) Eighteen grams or more but less than 36 grams, be punished by a term of imprisonment in the state prison for not less than 2 nor more than 15 years. No sentence imposed under the provisions of this clause shall be for less than a minimum term of imprisonment of 2 years, and a fine of not less $2,500 nor more than $25,000 may be imposed but not in lieu of the mandatory minimum term of imprisonment, as established herein.

SECTION 15. Subsection (b) of said section 32E of said chapter 94C, as so appearing, is hereby amended by striking out paragraph (2) and inserting in place thereof the following paragraph:-

(2) Thirty-six grams or more, but less than 100 grams, be punished by a term of imprisonment in the state prison for not less than 3½ nor more than 20 years. No sentence imposed under the provisions of this clause shall be for less than a mandatory minimum term of imprisonment of 3½ years, and a fine of not less than $5,000 nor more than $50,000 may be imposed but not in lieu of the mandatory minimum term of imprisonment, as established herein.

SECTION 16. Paragraph (3) of said subsection (b) of said section 32E of said chapter 94C, as so appearing, is hereby amended by striking out, in line 65 and in line 67, the first time it appears, the word “ten” and inserting place thereof the following figure:- 8.

SECTION 17. Paragraph (4) of subsection (b) of section 32E of said chapter 94C, as so appearing, is hereby amended by striking out, in lines 71 and 73, the word “fifteen” and inserting place thereof the following figure:- 12.

SECTION 18. Subsection (c) of said section 32E of said chapter 94C, as so appearing, is hereby amended by striking out paragraphs (1) and (2) and inserting in place thereof the following 2 paragraphs:-

(1) Eighteen grams or more but less than 36 grams, be punished by a term of imprisonment in the state prison for not less than 3½ nor more than 20 years. No sentence imposed under the provisions of this clause shall be for less than a mandatory minimum term of imprisonment of 3½ years and a fine of not less than $5,000 nor more than $50,000 may be imposed but not in lieu of the mandatory minimum term of imprisonment, as established herein.

(2) Thirty-six grams or more but less than 100 grams, be punished by a term of imprisonment in the state prison for not less than 5 nor more than 20 years. No sentence imposed under the provisions of this clause shall be for less than a mandatory minimum term of imprisonment of 5 years and a fine of not less than $5,000 nor more than $50,000 may be imposed, but not in lieu of the mandatory minimum term of imprisonment, as established herein.

SECTION 19. Paragraph (3) of said subsection (c) of said section 32E of said chapter 94C, as so appearing, is hereby amended by striking out, in line 104 and in line 106, the first time it appears, the word “ten” and inserting place thereof, in each instance, the following figure:- 8.

SECTION 20. Paragraph (4) of said subsection (c) of said section 32E of said chapter 94C, as so appearing, is hereby amended by striking out, in lines 111 and 113, the word “fifteen” and inserting place thereof, in each instance, the following figure:- 12.

SECTION 21. Section 32J of said chapter 94C, as so appearing, is hereby amended by striking out, in lines 3 and 4, the words “one thousand feet” and inserting in place thereof the following words:- 500 feet.

SECTION 22. Chapter 127 of the General Laws is hereby amended by inserting after section 97B the following section:-

Section 97C. (a) Notwithstanding any general or special law to the contrary, when an inmate, as defined in section 1 of chapter 125, is transferred from a county correctional facility to a state correctional facility or from a state correctional facility to a county correctional facility or between the department of mental health and a state or county correctional facility, including any prisoner transferred pursuant to section 52A of chapter 276, the transferring facility shall provide known medical and mental health information relative to such inmate’s recent treatment and information necessary for continuity of care of such inmate to the receiving facility.

(b) Under procedures jointly developed by the commissioner and the commissioner of mental health, a correctional facility and the department of mental health shall share information relevant to an inmate’s recent treatment and information necessary for continuity of care of an inmate who has received services from the department of mental health or who has been identified as in need of such services, for purposes of continuing or providing mental health treatment to such inmate at the custodial facility.

(c) Information shared under this section may be verbal or written. Whenever an inmate is transferred between correctional facilities or between a correctional facility and the department of mental health, correctional facilities shall utilize a form which shall be developed by the commissioner, in consultation with the commissioner of mental health, and such form shall include, but not be limited to: (i) the recent mental health history of an inmate and relevant information necessary for continuity of care of such inmate; (ii) any history of suicide attempt by an inmate; (iii) any acute medical concerns relative to an inmate; (iv) identification of any medication currently prescribed to an inmate and the dosage thereof; (v) any substance abuse history of an inmate; and (vi) any known allergies or dietary restrictions of an inmate. A transferring facility shall provide such information at, or before, the time of an inmate’s arrival at the receiving facility, but in no event shall such information be provided more than 72 hours after an inmate’s arrival at the receiving facility. In the event of an emergency, a transferring facility shall provide such information to a receiving facility as soon as possible after an inmate’s arrival, but in no event shall such information be provided more than 24 hours after an inmate’s arrival at the receiving facility.

(d) No privilege or confidentiality provision created by statute or common law and no statute otherwise prohibiting the disclosure of information shall preclude the dissemination of information pursuant to this section; provided, however, that dissemination of information under this section shall not be deemed to constitute a waiver of any privilege or right to confidentiality.

(e) Any person who provides information to a correctional facility or to the department of mental health in accordance with this section shall not be liable in any civil or criminal action for the provision of such information.

(f) Information shared pursuant to this section shall be considered health information and shall not be further disseminated except as provided by regulationof the respective departments for release of health information.

SECTION 23. Chapter 127 of the General Laws is hereby amended by inserting after section 119 the following section:-

Section 119A. Whenever a physician of any state correctional facility certifies that, to a reasonable degree of medical certainty, a prisoner held therein is suffering from an irreversible or terminal medical condition, disease or syndrome, whether due to advanced age or otherwise, and is so debilitated or physically incapacitated that such prisoner is incapable of presenting a threat to himself or to others, the commissioner may, in his sole discretion, petition the parole board to grant such prisoner a medical release.

No offender sentenced to a maximum term of life imprisonment, no sexually dangerous person, as defined in section 1 of chapter 123A and no sexually violent predator, as defined in section 178C of chapter 6, shall be eligible for medical release. No person adjudicated as a delinquent juvenile or youthful offender by reason of a sex offense or convicted of a sex offense, as defined in section 178C of chapter 6, shall be eligible for medical release until such person has been finally classified by the sex offender registry board.

The authority to grant a medical release shall be solely within the discretion of the parole board. The parole board shall, within 60 days of receipt of a petition from the commissioner, grant such prisoner a hearing before the board and shall consider carefully and thoroughly the question whether a medical release should be granted to such prisoner. The commissioner shall submit to the parole board or to an officer designated by it, all information relative to such certification. The board may grant a medical release upon a determination that such prisoner will live and remain at liberty without violating the law if released and that such release is not incompatible with the welfare of society. No prisoner shall be deemed to have a right to medical release or to a medical evaluation to determine eligibility for such release. The chairman of the parole board shall adopt such policies and procedures as are necessary to implement this section. The commissioner shall facilitate appropriate community placement for a prisoner granted a medical release by the parole board pursuant to this section.

Notwithstanding any general or special law to the contrary, no physician or employer of a physician who provides a medical diagnosis pursuant to this section shall be held jointly or severally liable, either as an institution or personally, for a medical diagnosis offered pursuant to this section, provided that such diagnosis was made in good faith, and shall be afforded absolute immunity from civil and criminal liability for the provision of such good faith diagnosis pursuant to this section.

SECTION 24. Section 129D of chapter 127 of the General Laws, as appearing in the 2010 Official Edition, is hereby amended by striking out, in line 14, the words “two and one-half” and inserting in place thereof the following figure:- 5.

SECTION 25. Said section 129D of said chapter 127, as so appearing, is hereby further amended by striking out, in line 19, the words “seven and one-half” and inserting in place thereof the following figure:- 10.

SECTION 26. The first paragraph of said section 129D of said chapter 127, as so appearing, is hereby further amended by striking out the last sentence and inserting in place thereof the following 2 sentences:- For a prisoner’s successful completion of a program or activity requiring 6 months of satisfactory participation, as designated by the commissioner, the commissioner may grant an additional deduction of sentence of up to 10 days, to be deducted in the month during which successful completion of the designated program or activity is achieved. Such further deduction of sentence shall be added to any deduction to which the prisoner is entitled under said section 129C for reducing the term of imprisonment by deduction from the maximum term for which he may be held under his sentence or sentences, and for reducing from the minimum term of the sentence or sentences the good conduct credits earned under this section for parole eligibility as provided under section 133.

SECTION 27. Section 130 of chapter 127 of the General Laws, as so appearing, is hereby amended by striking out the first and second sentences and inserting in place thereof the following 6 sentences:- No prisoner shall be granted a parole permit merely as a reward for good conduct. Permits shall be granted only if the board is of the opinion, after consideration of a risk and needs assessment, that there is a reasonable probability that, if the such prisoner is released with appropriate conditions and community supervision, the prisoner will live and remain at liberty without violating the law and that release is not incompatible with the welfare of society. In making this determination, the parole board shall consider whether, during the period of incarceration, the prisoner has participated in available work opportunities and education or treatment programs and demonstrated good behavior. The board shall also consider whether risk reduction programs, made available through collaboration with criminal justice agencies would minimize the probability of the prisoner re-offending once released. The record of the board’s decision shall contain a summary statement of the case indicating the reasons for the decision as well as the number of members voting in favor of granting a parole permit and the number of members voting against granting a parole permit.

SECTION 28. Said section 130 of said chapter 127, as so appearing, is hereby further amended by striking out, in line 8, the words “and shall be available to the public” and inserting in place thereof the following words:- , be available to the public and, to the extent reasonably practicable, be available for public inspection on the internet.

SECTION 29. Section 133A of said chapter 127, as so appearing, is hereby amended by striking out the first sentence and inserting in place thereof the following 3 sentences:- Every prisoner who is serving a sentence for life in a correctional institution of the commonwealth, except prisoners confined to the hospital at the Massachusetts Correctional Institution, Bridgewater, except prisoners serving a life sentence for murder in the first degree and except prisoners serving more than 1 life sentence, shall be eligible for parole at the expiration of the minimum term fixed by the court under section 24 of chapter 279. The parole board shall, within 60 days before the expiration of such minimum term, conduct a public hearing before the full membership unless a member of the board is determined to be unavailable as provided in this section. Notwithstanding the previous sentence, the board may postpone a hearing until 30 days before the expiration of such minimum term, if the interests of justice so require and upon publishing written findings of the necessity for such postponement.

SECTION 30. Section 133A of said chapter 127, as so appearing, is hereby further amended by striking out, in lines 29 and 35, the words “a majority”, and inserting in place thereof, in each instance, the following word:- two-thirds.

SECTION 31. Section 133B of said chapter 127, as so appearing, is hereby amended by striking out the first sentence and inserting in place thereof the following 2 sentences:- The parole board shall, within 60 days before the expiration of two-thirds of the maximum sentence of a prisoner sentenced under section 25 of chapter 279, and thereafter at least once in each ensuing 2-year period, consider carefully and thoroughly the merits of releasing such person on parole except for a habitual offender sentenced under subsection (b) of section 25 of chapter 279 and a prisoner sentenced to a term of imprisonment as prescribed by the sentencing guidelines established by the sentencing commission.

SECTION 32. Said section 133B of said chapter 127, as so appearing, is hereby further amended by adding the following paragraph:-

Habitual offenders sentenced under subsection (b) of said section 25 of said chapter 279 shall not be eligible for parole, work release or furlough or receive any deduction from such person’s sentence for good conduct.

SECTION 33. Section 136 of said chapter 127, as so appearing, is hereby amended by inserting after the second sentence the following sentence:- Notwithstanding the previous sentence, the board may postpone a hearing until 30 days before a prisoner first becomes eligible for parole, if the interests of justice so require and upon publishing written findings of the necessity for such postponement.

SECTION 34. The General Laws are hereby amended by inserting after chapter 127 the following chapter:-

CHAPTER 127A

MANDATORY POST-RELEASE SUPERVISION

Section 1. All sentences of incarceration to state prison shall include a period of post-release supervision, excluding sentences for those prisoners for whom parole eligibility is determined by section 133A of chapter 127. Except as provided in this chapter, for individuals who complete the incarceration portion of their sentences without supervised release or who are re-incarcerated for the remainder of their sentences for having violated the terms of parole or probation, the period of mandatory post-release supervision shall be 25 per cent of the maximum term of incarceration imposed at sentencing, but in no case less than 9 months nor more than 2 years. If a prisoner is sentenced to incarceration on multiple offenses and the sentences therefore are to be served concurrently, the greatest of the maximum term imposed at sentencing shall be used to calculate the mandatory post-release supervision period. Mandatory post-release supervision shall not be imposed upon any individual who: successfully completed a period of probation imposed by a court at sentencing; was granted a parole permit under chapter 127 and successfully completed a period of parole supervision; or has been sentenced to lifetime community parole under section 45 of chapter 265 or section 178H of chapter 6 and is being supervised under section 133D of chapter 127. An individual subject to this chapter may be supervised in another jurisdiction in accordance with sections 151A to 151N, inclusive, of chapter 127 and shall be considered on parole for the purposes of section 2.

Section 2. Upon an individual’s release from incarceration in a state prison for a sentence of any length, such individual shall be subject to the supervision and jurisdiction of the parole board during the period of mandatory post-release supervision and shall be subject to the law, rules and regulations governing parole. The chairman of the parole board shall establish regulations for post-release supervision consistent with chapters 27 and 127. Such regulations shall: (1) establish supervision levels based on risk-needs assessments, ranging from minimum parole supervision for low-risk parolees to maximum parole supervision of high-risk parolees, with a focus on reducing the risk posed by high-risk parolees; (ii) include the use of graduated and intermediate sanctions as appropriate in response to non-criminal violations of parole conditions and, in the discretion of the board, for low-level criminal violations; and (iii) establish guidelines with specific benchmarks which, if achieved by an individual, shall reduce the period of time in which such individual shall be subject to post-release supervision. Nothing in this section or in such regulations shall limit the authority of the superior, municipal, district or juvenile court to impose conditions of probation supervision to protect the public or promote the rehabilitation of any person.

Section 3. An individual subject to mandatory post-release supervision who has successfully completed 6 months of supervision shall be eligible for early termination of such supervision. Early termination shall be granted in accordance with the regulations of the parole board. In proceedings for early termination of mandatory post-release supervision, the parole board’s considerations shall include, but not be limited to, the amount of time an individual has successfully spent under post-release supervision, efforts and achievements in the areas of employment, housing, education, counseling, substance abuse treatment and required testing programs and any other circumstances relevant to the individual case.

Section 4. An individual who violates a condition of mandatory post-release supervision shall be subject to modification or revocation proceedings initiated by the parole board. The laws and regulations governing parole violation proceedings shall govern modification or revocation proceedings under this section. If an individual violates a condition of mandatory post-release supervision and such violation does not otherwise constitute a criminal offense, such individual may be placed under increased supervision, subjected to other conditions and intermediate sanctions or, upon a determination that such alternative sanctions are not appropriate, incarcerated as follows: for a first violation, for not more than 2 months or the maximum remaining period of post-incarceration supervision, whichever is less; for a second violation, for not more than 6 months or the maximum remaining period of post-incarceration supervision, whichever is less; for a third or subsequent violation, for not more than 12 months or the maximum remaining period of post-incarceration supervision, whichever is less. In all cases in which the individual is not being incarcerated for a violation, the individual shall be subject to the graduated sanctions policy of the parole board. If a violation is for use of controlled substances or an offense for operating under the influence of drugs or alcohol or with a percentage, by weight, of alcohol in such individual’s blood of eight one-hundredths or greater or, for an individual under 21 years old, with a percentage, by weight, of alcohol in such individual’s blood of 2 one-hundredths or greater and the individual is not incarcerated for the violation, the period of mandatory post-release supervision may be extended to accommodate an appropriate substance abuse program, but the total period of mandatory post-release supervision shall not exceed the maximum supervisory period permitted under section 1. For any violation of the conditions of mandatory post-release supervision, the period of supervision shall be stayed during a period of incarceration and it shall be resumed upon release.

If the violation constitutes a criminal offense, the period of incarceration shall be served on and after any sentence received as a result of the new offense. Upon subsequent release, the greater of the maximum sentences of the original offense and subsequent offense shall be used to calculate the new mandatory post-release supervision period.

Section 5. Mandatory post-release supervision shall be considered stayed under the following circumstances: (i) the individual is immediately committed to the custody of another state, the United States or a military, territorial or Indian tribal authority to serve a period of incarceration less than the post-release supervision period required under this chapter; (ii) the individual is immediately committed to the custody of the United States immigration authorities; or (iii) the individual is committed pursuant to an order of custody under chapter 123A.

SECTION 35. Chapter 265 of the General Laws is hereby amended by striking out section 13M, as appearing in the 2010 Official Edition, and inserting in place thereof the following section:-

Section 13M. (a) Whoever commits an assault or assault and battery on a family or household member, as defined in section 1 of chapter 209A, shall be punished by imprisonment in the house of correction for not more than 2 ½ years or by a fine of not more than $5,000 or both.

(b) Whoever is convicted of committing an assault or assault and battery on a family or household member, after having previously been convicted of, placed on probation for, granted a continuance without a finding for, or otherwise having pleaded guilty to or admitted to a finding of sufficient facts for: (1) an assault or assault and battery on a family or household member; (2) an offense that has as an element the use, attempted use or threatened use of physical force against the person of another; (3) an offense that has as an element the possession, use or threatened use of a deadly weapon; (4) a "sex offense" as defined in section 178C of chapter 6; or (5) a violation of section 7 of chapter 209A, shall be punished by imprisonment in the state prison for not more than 5 years or in the house of correction for not more than 2 ½ years or by a fine of not more than $10,000, or by both such fine and imprisonment.

(c) For any violation of this section, or as a condition of a continuance without a finding, the court shall order the defendant to complete a certified batterer's intervention program unless, upon good cause shown, the court issues specific written findings describing the reasons that batterer's intervention should not be ordered or unless the batterer's intervention program determines that the defendant is not suitable for intervention.

SECTION 36. Said chapter 265 is hereby further amended by inserting after section 15C the following 4 sections:-

Section 15D. (a) Whoever commits an assault and battery upon another by means of discharging a firearm, large capacity weapon, rifle, shotgun, sawed-off shotgun, machine gun or assault weapon, as defined in section 121 of chapter 140, shall be punished by imprisonment in the state prison for not more than 15 years or by imprisonment in the house of correction for not more than 2½ years or by a fine of not more than $10,000, or by both such fine and imprisonment.

(b) Whoever commits an assault and battery upon another by means of discharging a firearm, large capacity weapon, rifle, shotgun, sawed-off shotgun, machine gun or assault weapon, as defined in section 121 of chapter 140, after 1 or more prior convictions under subsection (a), section 15E or a law of another jurisdiction that necessarily includes the elements of subsection (a) or section 15E, shall be punished by imprisonment in the state prison for not less than 10 years nor more than 20 years. The sentence imposed shall not be reduced to less than a term of 10 years imprisonment, nor suspended, nor shall a person sentenced under this subsection be eligible for probation, parole, work release or furlough or receive any deduction from the sentence for good conduct, until having served 10 years of the sentence; provided, however, that the commissioner of correction may, on the recommendation of the warden, superintendent or other person in charge of a correctional institution, grant to an offender committed under this subsection a temporary release in the custody of an officer of such institution for the following purposes only: to attend the funeral of a relative; to visit a critically ill relative; or to obtain emergency medical or psychiatric services unavailable at such institution.

(c) Prosecutions commenced under this section shall not be suspended, continued without a finding or placed on file. A sentence imposed under this section shall begin from and after the expiration of any sentence imposed under paragraphs (a), (c), (d), (h), (m) or (n) of section 10 of chapter 269 arising out of the same incident.

Section 15E. (a) Whoever commits an assault upon another by means of a firearm, large capacity weapon, rifle, shotgun, sawed-off shotgun, machine gun or assault weapon, as defined in section 121 of chapter 140, shall be punished by imprisonment in the state prison for not more than 10 years or by imprisonment in the house of correction for not more than 2½ years or by a fine of not more than $5,000, or by both such fine and imprisonment.

(b) Any person convicted of violating subsection (a) after 1 or more prior convictions under subsection (a), section 15D, or a law of another jurisdiction that necessarily includes the elements of subsection (a) or section 15D, shall be punished by imprisonment in the state prison for not less than 2 years nor more than 15 years. The sentence imposed shall not be reduced to less than a term of 2 years imprisonment, nor suspended, nor shall a person sentenced under this subsection be eligible for probation, parole, work release or furlough or receive any deduction from the sentence for good conduct, until having served 2 years of the sentence; provided, however, that the commissioner of correction may, on the recommendation of the warden, superintendent or other person in charge of a correctional institution, grant to an offender committed under this subsection a temporary release in the custody of an officer of such institution for the following purposes only: to attend the funeral of a relative; to visit a critically ill relative; or to obtain emergency medical or psychiatric service unavailable at said institution.

Section 15F. (a) For the purposes of this section the following words shall have the following meanings:

"Strangulation", the intentional interference of the normal breathing or circulation of blood by applying pressure on the throat or neck of another.

"Suffocation", the intentional interference of the normal breathing or circulation of blood by blocking the nose or mouth of another.

"Serious bodily injury", bodily injury that results in a permanent disfigurement, loss or impairment of a bodily function, limb or organ, or a substantial risk of death.

(b) Whoever strangles or suffocates another shall be punished by imprisonment in the state prison for not more than 5 years or in the house of correction for not more than 2 ½ years or by a fine of not more than $5,000, or by both such fine and imprisonment.

(c) Whoever: (i) strangles or suffocates another and by such strangulation or suffocation causes serious bodily injury; or (ii) strangles or suffocates another who is pregnant at the time of such strangulation or suffocation, knowing or having reason to know that the person is pregnant; or (iii) is convicted of strangling or suffocating another after having been previously convicted of the crime of strangling or suffocating another under this section, or of a like offense in another state or the United States or a military, territorial or Indian tribal authority; or (iv) strangles or suffocates another, knowing that the victim of such strangulation or suffocation has an outstanding temporary or permanent vacate, restraining or no contact order or judgment issued pursuant to section 18, 34B or 34C of chapter 208, section 32 of chapter 209, section 3, 4 or 5 of chapter 209A or section 15 or 20 of chapter 209C, in effect against the strangler or suffocator at the time such offense was committed, shall be punished by imprisonment in the state prison for not more than 10 years or in the house of correction for not more than 2½ years, and by a fine of not more than $10,000.

Section 15G. Any person who, with the intent that another commit murder, solicits, counsels, advises or otherwise entices another to commit murder shall be punished by imprisonment in the state prison for not more than 20 years, or by imprisonment in the house of correction for not more than 2½ years and a fine of not more than $1,000.

SECTION 37. Section 37 of chapter 266 of the General Laws, as so appearing, is hereby amended by inserting after the word “larceny”, in line 6, the following words:- and, if the face amount of such check, draft or order does not exceed $250, shall be punished for a first offense by a fine of not more than $500.

SECTION 38. Said section 37 of said chapter 266, as so appearing, is hereby further amended by inserting after the word “larceny”, in line 7, the following words:- if the value of such money, property or services obtained does not exceed $250, shall be punished for a first offense by a fine of not more than $1,000, and if not a first offense or if the face amount of the check or the value of such money, property or services obtained exceeds $250, shall be punished in accordance with section 30.

SECTION 39. Section 10 of chapter 269 of the General Laws, as so appearing, is hereby amended by striking out, in lines 103 to 107, inclusive, the words “seven years; for a third such offense, by imprisonment in the state prison for not less than seven years nor more than ten years; and for a fourth such offense, by imprisonment in the state prison for not less than ten years nor more than fifteen years” and inserting in place thereof the following words:- 10 years; for a third such offense, by imprisonment in the state prison for not less than 10 years nor more than 15 years; and for a fourth such offense, by imprisonment in the state prison for not less than 15 years nor more than 20 years.

SECTION 40. Said section 10 of said chapter 269 is hereby further amended by adding the following paragraph:-

(p) Whoever, having been previously convicted in any court of this or another state or the United States or a military, territorial or Indian tribal authority, of a crime punishable by imprisonment for a term exceeding 2½ years, knowingly possesses or knowingly has under his control, a firearm, large capacity weapon, rifle, shotgun, sawed-off shotgun, machine gun, assault weapon or ammunition, as defined in section 121 of chapter 140, shall be punished by imprisonment in the state prison for not more than 10 years or by imprisonment in the house of correction for not more than 2½ years. Prosecutions commenced under this subsection shall not be suspended, continued without a finding or placed on file. A sentence imposed under this subsection shall begin from and after the expiration of any sentence imposed under paragraphs (a), (c), (d), (h), (m) or (n) of section 10 or section 10E arising out of the same incident.

SECTION 41. Section 99 of chapter 272, as so appearing, is hereby amended by striking out subsection A.

SECTION 42. Said section 99 of said chapter 272, as so appearing, is hereby further amended by striking out the definition of “wire communication” and inserting in place thereof the following definition:-

1.The term “wire communication” means any communication made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, electronic, digital, cellular or other like connection between the point of origin and the point of reception. The term “wire communication” shall also include text message and data communications sent and received via cellular telephone, smartphone or personal data assistant.

SECTION 43. Said section 99 of said chapter 272, as so appearing, is hereby further amended by striking out the definition of “designated offense” and inserting in place thereof the following definition:-

7. The term “designated offense” shall include the following offenses in connection with organized crime: arson, assault and battery with a dangerous weapon, extortion, bribery, burglary, embezzlement, forgery, gaming in violation of section 17 of chapter 271, intimidation of a witness or juror, kidnapping, larceny, lending of money or things of value in violation of the general laws, mayhem, murder, any offense involving the possession or sale of a narcotic or harmful drug, perjury, prostitution, robbery, subornation of perjury, any violation of this section, being an accessory to any of the foregoing offense and conspiracy or attempt or solicitation to commit any of the foregoing offenses.

The term “designated offense” shall also include, whether or not in connection with organized crime: (i) any murder or manslaughter, except under chapter 90 or 90B or 13 ½ of chapter 265; (ii) any violation of chapter 94C; and (iii) the illegal use, possession or carrying of a firearm, sawed-off shotgun, machine gun, assault weapon or large capacity weapon, as defined by section 121 of chapter 140, any offense, proof of which requires the illegal sale, purchase or transfer of a firearm, sawed-off shotgun, machine gun, assault weapon or large capacity weapon as an element thereof, and any license violation under sections 121 to 131P, inclusive, of chapter 140.

SECTION 44. Section 24 of chapter 279 of the General Laws, as so appearing, is hereby amended by striking out, in lines 1 and 2, the words “for life or”.

SECTION 45. Said section 24 of said chapter 279, as so appearing, is hereby further amended by adding the following sentence:- In the case of a sentence to life imprisonment, except in the case of a sentence for murder in the first degree, the court shall fix a minimum term which shall be not less than 15 years nor more than 25 years.

SECTION 46. Said chapter 279 is hereby further amended by striking out section 25, as so appearing, and inserting in place thereof the following section:-

Section 25. (a) Whoever is convicted of a felony and has been previously twice convicted and sentenced to prison for a term of not less than 3 years by the commonwealth, another state or the United States, and who does not show that he has been pardoned for either crime on the ground that he was innocent, shall be considered a habitual criminal and be punished by imprisonment in the state prison for such felony for the maximum term provided by law.

(b) Whoever: (i) is convicted of section 131M of chapter 140; section 1, 13 or 13½, subsection (b) of section 13A, section 13B, 13B½, 13B¾, 13F, 13H, 13J, 13K, 14 or 15, subsection (a) or (c) of section 15A, subsection (b) of section 15C, 15D, 16, 17, 18, 18A, 18B or 18C, section 21, 21A, 22, 22A, 22B, 22C, 23A, 23B, 24, 24B, 26, 26B, 26C or 28, subsection (b) of section 39 or subsection (b) or (c) of section 43 of chapter 265, section 1, 14, 17, 18, 102, 102A, 102B or 102C of chapter 266, section 10, 10E or subsection (e) of section 12F of chapter 269 or section 3, 4A, 13, 17, 29A, 29B, 29C, 35A or subsection (b) of section 53A of chapter 272; (ii) at the time of the offense has been convicted 2 times previously of 1 or more of the offenses in clause (i), or has been convicted 2 times previously of a like violation of the laws of another state, the United States or a military, territorial or Indian tribal authority, arising out of separate incidents or involving separate victims, if the second offense occurred subsequent to the first conviction; (iii) has been sentenced to incarceration for at least 1 day to be served for each of the prior 2 convictions; and (iv) does not show that he has been pardoned for either prior offense on the ground that he was innocent shall be considered a habitual criminal and punished by imprisonment in the state prison for the maximum term provided by law. No sentence imposed under this section shall be reduced or suspended nor shall such person so sentenced be eligible for probation, parole, work release or furlough or receive any deduction from such person’s sentence for good conduct.

(c) No person shall be considered a habitual offender pursuant to subsection (b) based upon any offense for which such person was adjudicated a delinquent child, or a like violation of the laws of another state, the United States or a military, territorial or Indian tribal authority for which a person was treated as a juvenile.

(d) No guilty plea shall be entered for any offense listed in subsection (b), unless a person is informed by the court, prior to entering the plea, of the penalties for a violation of said subsection: (1) imprisonment in the state prison for the maximum term provided by law; (2) that no sentence may be reduced or suspended; and (3) that no person so sentenced shall be eligible for probation, parole, work release or furlough or receive any deduction in sentence for good conduct.

SECTION 47. The authority of the chairman of the parole board to establish regulations for post-release supervision as required by section 2 of chapter 127A shall take effect upon passage, and said chairman shall adopt such regulations not later than 90 days thereafter.

SECTION 48. Section 30 shall apply to any felony, as defined in section 1 of chapter 274 of the General Laws, committed on or after the effective date of this act.

SECTION 49. Notwithstanding any general or special law, rule or regulation to the contrary, any person incarcerated on the effective date of this act for an offense which, at the time such person was sentenced on such offense, requires serving a minimum term of incarceration before such person is eligible for probation, parole, work release or release shall be eligible for probation, parole, work release and deductions in sentence for good conduct in accordance with sections 6 to 20, inclusive.

SECTION 50. Section 4 of this act shall take effect on January 1, 2013.

SECTION 51. Except as provided in sections 47 and 50, this act shall take effect in 90 days.