COMMONWEALTH v. ROWELL (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant, Denzell Rowell, appeals from an order of a single justice of this court denying the defendant's motion to stay execution of his sentence pending his appeal. Concluding that the single justice acted within his discretion in light of the defendant's criminal record and his actions in this case, we affirm.

In the context of review of a single justice's denial of a motion to stay execution of a sentence, “[i]t is well settled that this court will not reverse an order of a single justice in the absence of an abuse of discretion or clear error of law.” Commonwealth v. Springfield Terminal Ry. Co., 77 Mass. App. Ct. 225, 229 (2010), quoting Commonwealth v. Senior, 429 Mass. 1021, 1021 (1999). See Commonwealth v. Dame, 473 Mass. 524, 539 (2016). To grant a stay, a single justice “must find that the defendant presents no risk of flight or danger to the community, and that he is unlikely to commit additional criminal acts during the pendency of his appeal.” Senior, supra at 1022. In addition, the defendant must establish “a reasonable possibility of succeeding on the underlying appeal.” Lewis v. Commonwealth, 429 Mass. 1007, 1007 (1999). The single justice is entitled to deny relief without explanation. See Commonwealth v. Mattier, 474 Mass. 227, 228 (2016).

Here, the uncontroverted representations made to the single justice allowed him to determine that the defendant had defaulted, both before and after disposition, in other cases. The single justice also could have found that the defendant pleaded guilty to assault and battery on a police officer for an offense charged in 2016, and received a continuance without a finding for aggravated assault and battery for an offense charged in 2011. Moreover, even if the defendant ultimately is correct in his sufficiency claim, he nonetheless engaged in acts dangerous to the community. He helped his companion try to evade the police after watching him discard a firearm, driving recklessly enough that that a police officer had to press himself against a wall to avoid being struck by the vehicle. On these facts, we can discern no abuse of discretion in the single justice's determination that the defendant failed to establish his entitlement to a stay of execution of his sentence. See Christian v. Commonwealth, 446 Mass. 1003, 1004 (2006) (“we are satisfied that the single justice did not err in declining to release Christian, particularly in view of his extensive criminal record”); Lewis, 429 Mass. at 1007-1008 (“repeated acts of fraud on would-be investors created the possibility that he might commit further crimes during the pendency of his appeal”).

Order of the single justice affirmed.