BOSTON — A city man's 2012 conviction of armed robbery by means of a firearm cannot stand because he used a BB pistol during those robberies, the state's highest court has ruled.
Raheem Garrett, 31, was sentenced to 10 to 15 years in state prison in 2012 after being convicted in Berkshire Superior Court in connection with a spate of robberies in Pittsfield in late 2011 that put the city on edge.
But the state Supreme Judicial Court last week ruled that the sentence should be changed to reflect a conviction on charges of unarmed robbery because BB guns are not considered firearms under the law and are regulated separately.
"Because we conclude that a BB gun does not satisfy the statutory requirements of a 'firearm' ... the defendant's convictions of armed robbery by means of a firearm cannot stand," part of the decision reads.
Berkshire District Attorney David F. Capeless called the decision, "unfortunate for the victims in these cases."
"Whether this was a BB gun or a real handgun was irrelevant to (the victims)," Capeless said. "It caused the same amount of fear."
The ruling stated prosecutors could have chosen to charge Garrett with armed robbery with a dangerous weapon, rather than robbery with a firearm, and that would have given Garrett the same sentence he's currently serving.
Because there is no mention of BB guns in the 1998 Gun Control Act nor were BB guns included in the definition of firearm when sentencing enhancement was added for firearms use during armed robberies, that indicates they were intended to be treated differently than firearms under the law.
"Any other construction would produce absurd results," the court concluded. "If BB guns were construed as firearms, they would be subject to the entire Gun Control Act."
That would mean BB guns would only be able to be sold by licensed firearms dealers, background checks would have to be performed and BB guns would be required to bear serial numbers.
Additionally, if BB guns were firearms, they would have to be stored and locked the way true firearms are required to be.
"This potentially would subject a broad group of minors to severe adult criminal penalties, with the attendant negative consequence of an adult criminal record," according to the decision.
Garrett's attorney, Michael J. Hickson, said Wednesday, he has 60 days in which to file a motion for reconsideration of the sentence.
That hearing would be heard before Judge John Agostini, who presided over Garrett's trial.
Hickson said he hasn't determined what his recommended sentence will be, except he will be seeking less than the original 10 to 15 years.
Capeless, on the other hand, said Thursday he expects to seek the same sentence for Garrett as was originally imposed.
Capeless said even the reduced charge of unarmed robbery carries a penalty of up to life in prison, making a 10-15 year sentence a viable option.
"It carries the same penalties; the facts of the case are the same," Capeless said.
Capeless said he's not aware of any other Berkshire County cases that would be affected by the ruling.
Garrett and his girlfriend, Laura Methe, committed a series of robberies in Pittsfield between September and November 2011.
In each of them, Garrett used a BB pistol he'd purchased for the purpose of committing the robberies and altered it to look more like a real weapon, according to court records.
Garrett robbed a Domino's pizza shop and a convenience store while wearing a mask and brandishing the gun at the cashier while Methe waited outside as a getaway driver.
About two months later, Garrett went back to the same Domino's and robbed it again. The same manager was on duty and ran outside to get a look at the getaway car after he'd handed over the money and Garrett fled the restaurant.
Garrett was convicted in November 2012 in those three robberies after a jury of eight men and four women deliberated for about 6 1/2 hours. He was acquitted of seven other counts related to several other robberies and attempted robberies in the Pittsfield area during the same time period.
Methe pleaded guilty two days later to a dozen charges, including multiple counts of armed robbery while masked, armed assault with intent to rob and assault by means of a dangerous weapon.
She was sentenced to 210 days of time already served in custody and probation.