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The charge of second and subsequent actually carries a 5 year State sentence if he is indicted. You should talk to an experienced criminal defense attorney to examine the facts of the first and second offenses to see if anything can be done in terms of moving to excluded evidence or moving to vacate the first conviction.
Section 32A of Chapter 94C of the Massachusetts Criminal Statutes provides for a 3 year State Prison Mandatory Minimum sentence for someone convicted a second time of possession of a class B substance with intent to distribute. If the state can prove that prior to the date of the commission of the new offense he was convicted of possession of class B with intent to distribute then he must serve the full three years (36 months) in state prison. You say that "evidence is missing for the first". If they cannot prove that he had a prior conviction (and that is not terribly difficult to prove) then there is no mandatory minimum sentence. On a first offense the penalty range is "imprisonment in the state prison for not more than ten years, or in a jail or house of correction for not more than two and one-half years, or by a fine of not less than one thousand nor more than ten thousand dollars, or both such fine and imprisonment". If the 2 1/2 years is to the house of correction your boyfriend would be eligible for parole in 1/2 the sentence (15 months). 15 months in the county house of correction is a lot better than 36 months in the Sate Prison. But these are issues your boyfriend should be discussing in detail with his lawyer. You say "evidence is missing for the first"; what does that mean? Are you saying the case is so old that they cannot find the court docket sheet? Again these are details that your boyfriend's lawyer should know. I hope this helps you.
Robert D. Lewin, Attorney
LEWIN & LEWIN CRIMINAL LAWYERS
Offices in Malden and Andover, MA serving all of Eastern MA
Your boyfriend shouldn’t consider tendering a plea before he knows the strengths and weaknesses of his case, his defenses, and whether those charges can be proven by the Commonwealth. There is no District Court jurisdiction to the offense of possession with intent to Distribute Class B, subsequent offense. The subsequent offense aspect of the charge makes this a Superior Court offense. Should your boyfriend be indicted, this offense could carry a one year mandatory jail sentence in the Superior Court, depending on how charged. Your boyfriend should have legal representation and my advice to you is to tell him to hire an experienced criminal defense attorney. Good luck.
Attorney Steven J. Topazio
10 Winthrop Square, Suite 4100
Boston, MA 02110
Any information contained herein is intended for informational purposes only and should not be construed as legal advice. If you need additional information, call Attorney Topazio directly at 617-422-4803 regarding your specific concern.
Yes. Second offense for a Class B poss w/intent charge has a 2 or 3.5 year mandatory minimum depending on the substance (crack, cocaine and meth are 3.5). It is likely 3.5 for your boyfriend if he is being offered 2.5. Essentially, the DA is agreeing to reduce the charge to a first offense in exchange for a plea.