COMMONWEALTH v. MURPHY (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant appeals from an order of the single justice of this court denying his motion, pursuant to Mass. R. A. P. 6, 481 Mass. 1608 (2019), for a stay of execution of his remaining sentence during the pendency of his appeal from an order of the Superior Court denying his sixth motion for a new trial (in which he sought to withdraw a guilty plea entered on June 9, 1998). We discern no error of law or abuse of discretion in the order of the single justice, and affirm.

As a threshold matter, we disagree with the defendant's contention that the Superior Court in Essex County (Essex Superior Court) is without “jurisdiction” to entertain his motion for a stay of sentence. Jurisdiction over his sentence is in the Superior Court, and the question, if any, is one of venue. Moreover, his emphasis on the role of the Superior Court in Norfolk County (Norfolk Superior Court) as the source of the sentence he currently is serving (following revocation of his probation in 2003) would be significant for purposes of a motion to revise and revoke that sentence -- which the defendant's motion decidedly is not. Cf. Committee for Pub. Counsel Servs. v. Chief Justice of the Trial Court, 484 Mass. 431, 449-451 (2020). Because the availability of relief from his current sentence arises from the defendant's motion for a new trial under Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), and that matter originated and was disposed of in the Essex Superior Court, that court stands as the more appropriate venue for the defendant's request to stay execution of his remaining sentence pending his appeal from the order denying his motion for new trial.

In any event, we discern no abuse of discretion or error of law in the conclusion by the single justice that the defendant's motion for a stay did not warrant relief on its merits. As the motion judge observed, the investigator's description of his interview of the victim does not constitute a recantation of her trial testimony identifying the defendant as one of her assailants during an armed home invasion. Instead, it describes a somewhat different description by the victim of her observations and conclusions regarding her assailant than furnished in her initial statements to police. That her present recollection varies somewhat from her previous statements is hardly surprising in light of the significant passage of time -- more than twenty years -- since the investigation and the arrest that led to the defendant's guilty plea. As the motion judge also observed, the question is not the precise wording of the victim's statement to police, but whether her potential trial testimony relating her percipient observations as a witness to the armed home invasion served as a compelling basis for the defendant to accept the terms of the guilty plea he was offered and accepted. We are unpersuaded that the defendant has demonstrated the requisite reasonable possibility of success on appeal to warrant a stay of sentence. See Commonwealth v. Allen, 378 Mass. 489, 498 (1979).

Moreover, though Christie v. Commonwealth, 484 Mass. 397, 401-402 (2020), admonishes judges considering a motion for stay of sentence pending appeal during the current pandemic to consider the risk to the defendant if he were to remain in custody, including both the general and specific risks of transmission of COVID-19, the materials submitted by the defendant are inadequate in our view to warrant a stay of sentence. The general description (based on Internet sources and news articles) of the defendant's diagnosed medical conditions, considered together with the copies of the defendant's medical records, do not establish that he is at heightened risk of death or serious illness, and the general statistical records concerning the number of positive tests at Massachusetts correctional facilities furnish no information regarding the prevalence of the disease at the facility at which the defendant is incarcerated. At a minimum, balanced against the scant prospects of success in the defendant's appeal from the order denying his motion for a new trial, we see no abuse of discretion in the conclusion by the motion judge that the defendant's risk of illness does not warrant relief.²

Order of single justice denying stay of sentence pending appeal affirmed.

FOOTNOTES

2.   We express no view on the question whether the risk of illness would warrant relief by the parole board.