What does it mean to commit a felony with a firearm?

July 21st, 2020

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Firearm While Committing a Felony

G.L. c. 265, § 18B — Enhanced Penalties for Possession or Control of a Firearm During a Felony

Massachusetts imposes significant additional penalties when a person possesses or controls a firearm while committing or attempting to commit a felony. Under G.L. c. 265, § 18B, a conviction for this offense carries a mandatory minimum state-prison sentence that runs in addition to the penalty for the underlying felony. The exposure increases further if the weapon is a large capacity firearm or machine gun, or if the defendant has a prior qualifying conviction under the statute.

This expanded guide explains the elements of the offense, the meaning of “possession” and “control,” the escalating mandatory minimums, restrictions on plea and sentencing options, and practical defense considerations for anyone facing these charges.

The Statute: G.L. c. 265, § 18B

Section 18B provides that whoever, while in the commission or attempted commission of an offense that may be punished by imprisonment in the state prison, has in his possession or under his control a firearm (as defined in G.L. c. 140, § 121) shall, in addition to the penalty for the underlying offense, be punished by imprisonment in the state prison for not less than five years. If the firearm is a large capacity firearm or if the person has in his possession or under his control a machine gun, the minimum rises to ten years.

For a second or subsequent offense under the statute, the minimum becomes twenty years (or twenty-five years if a large capacity semiautomatic firearm or machine gun is involved). A sentence imposed for a second or subsequent offense generally cannot be reduced or suspended, and the defendant is ineligible for probation, parole, furlough, work release, or good-conduct deductions until the minimum term has been served (subject to limited temporary-release exceptions for certain family or medical emergencies).

Prosecutions under § 18B may not be continued without a finding or placed on file. The ordinary power of the court to place certain offenders on probation under G.L. c. 276, § 87 does not apply to any person eighteen years of age or older charged with a violation of this section.

What Counts as the Underlying Felony?

The statute applies when the defendant is in the commission or attempted commission of “an offense which may be punished by imprisonment in the state prison.” In other words, the root offense must be a felony under Massachusetts law. Courts have held that certain offenses, such as assault and battery by means of a dangerous weapon, can serve as the root felony even if a dangerous weapon is already an element of that charge. The § 18B conviction is treated as a separate, additional crime that carries its own mandatory minimum.

What Does “Possession or Under His Control” Mean?

Possession in criminal law is broader than simply holding an object in one’s hand. Actual physical possession is sufficient, but constructive possession is also enough. Constructive possession generally requires that the defendant (1) had knowledge of the firearm’s presence, (2) had the ability to exercise dominion and control over it (personally or through another), and (3) had the intent to exercise that control.

Joint possession is possible when more than one person shares knowledge, ability to control, and intent. A firearm found in a vehicle, apartment, or other shared space can therefore support a § 18B charge against more than one occupant if the evidence supports the elements of constructive or joint possession. Conversely, mere presence near a firearm, without knowledge or the ability and intent to control it, is not enough.

Because the statute uses the phrase “possession or under his control,” the Commonwealth must prove that the firearm was available to the defendant in a meaningful way during the commission or attempted commission of the felony. Timing and proximity are often critical factual issues.

Summary of Penalties

First offense, ordinary firearm: Not less than 5 years in state prison (in addition to the underlying felony sentence).
First offense, large capacity firearm or machine gun: Not less than 10 years in state prison.
Second or subsequent offense, ordinary firearm: Not less than 20 years, with severe restrictions on early release and alternatives.
Second or subsequent offense, large capacity or machine gun: Not less than 25 years, subject to the same restrictions.

These are mandatory minimums that run consecutively to (or in addition to) the sentence for the underlying felony. The practical effect can be many years of additional incarceration.

Potential Defenses

Defense strategies in § 18B cases commonly focus on one or more of the following:

Motion to suppress. If the firearm was recovered during an unlawful stop, search, or seizure, a successful motion to suppress can remove the key piece of evidence and undermine both the underlying felony and the § 18B charge.
Lack of possession or control. The Commonwealth must prove the defendant possessed or controlled the firearm at the relevant time. Evidence that the weapon belonged to someone else, was inaccessible, or that the defendant lacked knowledge or the ability to control it can defeat the charge.
Constructive possession requires knowledge. If the defendant did not know a firearm was present, the element fails.
Timing and nexus. The firearm must have been possessed or controlled while the felony was being committed or attempted. A temporal or spatial disconnect can be significant.
Challenges to the underlying felony. Because § 18B is tethered to a qualifying felony, successful defense of the root offense can eliminate the basis for the enhancement.

Practical Considerations

These charges often arise in the context of drug offenses, robberies, assaults, or other felonies in which a firearm is found in a vehicle, residence, or on the defendant’s person. Early investigation of the search-and-seizure issues, the precise location and accessibility of the firearm, and any statements attributed to the defendant is essential. Because the mandatory minimums are severe and certain plea options are restricted, experienced counsel is critical from the outset.

Frequently Asked Questions

Does the firearm have to be used in the felony?

No. The statute requires possession or control during the commission or attempted commission of the felony; actual use or discharge is not required.

Can this charge be continued without a finding or placed on file?

No. The statute expressly prohibits continuances without a finding and placing the case on file.

What is a “large capacity firearm” for purposes of the enhanced minimum?

The definition is tied to G.L. c. 140, § 121. Generally it includes firearms that can accept large capacity feeding devices or that meet other statutory criteria for large capacity status. Classification can be a contested factual and legal issue.

Why Experienced Counsel Matters

A § 18B charge dramatically increases sentencing exposure and limits the available dispositions. An attorney who regularly handles Massachusetts firearms and felony cases can evaluate the strength of the possession evidence, litigate suppression issues, challenge the classification of the weapon, and negotiate or try the case with a full understanding of the mandatory minimums and collateral consequences.

Contact Criminal Defense Attorney William J. Barabino

If you or a loved one has been charged with possessing a firearm while committing a felony, or with any related gun offense, do not face the case alone. The Law Office of William J. Barabino provides experienced, client-focused criminal defense in Massachusetts.

Call 781-393-5900 today for a confidential consultation.

Visit williambarabino.com for additional resources on gun charges and related offenses.

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