COMMONWEALTH v. FOX (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

On appeal from an order denying his motion for new trial, the defendant contends that his conviction cannot stand because the statute underlying it is unconstitutional. We discern on the present record no basis for relief, and affirm.

On March 1, 2012, the defendant pleaded guilty to possession of a dangerous weapon, to wit a double edged knife. On February 28, 2017, the defendant filed a motion for new trial, together with a memorandum of law but without an affidavit or other supporting evidence. The motion was denied without a hearing.

At the heart of the defendant's claim is his contention that he was entitled, under the Second Amendment to the United States Constitution, to possess the knife on which his conviction was based. Citing District of Columbia v. Heller, 554 U.S. 570 (2008), the defendant contends that he was entitled to possess the knife so long as he was not using it for an illegal purpose, and so long as it was of a type “typically possessed by law-abiding citizens for lawful purposes.” Id. at 625.

The defendant has not provided a sufficient evidentiary basis for us to consider his constitutional claim. The present record offers only the barest description of the knife itself, and no information about its common use or whether it is typically found, or conversely is unusual to find, in the possession of law-abiding citizens for lawful purposes. There accordingly was no error or abuse of discretion by the motion judge in the denial of the defendant's motion for new trial. We affirm the order denying the defendant's motion.

So ordered.

affirmed