COMMONWEALTH v. KOZUBAL (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

This is an expedited appeal from the order by a single justice of this court denying an emergency motion to stay execution of sentence pending appeal. For the reasons that follow, we affirm the order.

Background. The defendant was convicted by a Superior Court jury of various charges of indecent assault and battery on a person under the age of fourteen by a mandated reporter, G. L. c. 265, § 13B 1/2; and indecent assault and battery on a person under the age of fourteen, G. L. c. 265, § 13B. On July 8, 2019, he was sentenced to State prison for concurrent terms of ten years to ten years and one day on seven of the convictions, and to a consecutive three-year term of probation on the eighth. The defendant's direct appeal has not yet entered in this court.

The defendant sought a first (before COVID-19) emergency motion to stay execution of his sentence pursuant to Mass. R. Crim. P. 31 (a), as appearing in 454 Mass. 1501 (2009), and when that was unsuccessful, he filed an emergency motion for a stay of execution of his sentence in this court pursuant to Mass. R. A. P. 6, as appearing in 481 Mass. 1608 (2019). The first single justice denied the motion. See Commonwealth v. Kozubal, Appeals Ct., No. 20-J-510 (Dec. 19, 2019). The appeal from the first single justice's order denying the stay motion is a pending panel appeal in this court. See Commonwealth v. Kozubal, Appeals Ct., No. 20-P-29.

A motion to expedite that appeal was denied on March 25, 2020, by a second single justice of this court, who nevertheless granted the defendant leave to file a second motion to stay in the trial court. The defendant filed such a motion in the Superior Court on April 9, 2020, citing the COVID-19 pandemic as a changed circumstance. The trial judge again denied the motion. The defendant sought to expand his record appendix in the panel appeal and sought, once again, an expedited appeal. The second single justice denied the second motion, and referred the request to supplement the record to the panel deciding the appeal.

The defendant next filed a petition pursuant to G. L. c. 211, § 3, in the Supreme Judicial Court seeking a stay, or in the alternative, relief from the single justice orders denying the request to expedite. The single justice of the Supreme Judicial Court (SJC) denied the petition in a memorandum of decision that rejected the effort to transform an appeal of a nonemergency motion to stay filed before COVID-19 into a COVID-19 emergency motion to stay. See Commonwealth v. Kozubal, Supreme Judicial Ct., No. SJ-2020-243, slip op. at 5 (May 7, 2020). The single justice of the SJC noted that the existing appellate remedies were adequate, including an appeal from the order in the trial court denying the second motion to stay, or filing an emergency motion to stay (on COVID-19 grounds) with a single justice of the Appeals Court.

The defendant then filed an emergency motion for stay of execution of his sentence in this court pursuant to Mass. R. A. P. 6, as appearing in 481 Mass. 1608 (2019), on May 11, 2020. A third single justice of this court denied the motion in a memorandum of decision. See Commonwealth v. Kozubal, Appeals Ct., No. 20-J-209 (May 15, 2020). The defendant's expedited appeal of the third single justice's order denying the emergency motion to stay was filed on May 28, 2020, and referred to this panel on May 29, 2020.

Discussion. We review the third single justice's denial of the motion to stay for an abuse of discretion. Commonwealth v. Cohen (No. 2), 456 Mass. 128, 132 (2010). “When considering the merits of a motion to stay the execution of a sentence, a judge should consider two factors. First is whether the appeal presents ‘an issue which is worthy of presentation to an appellate court, one which offers some reasonable possibility of a successful decision in the appeal.’ Commonwealth v. Allen, 378 Mass. 489, 498 (1979), quoting Commonwealth v. Levin, 7 Mass. App. Ct. 501, 504 (1979)․ Second, the judge should consider ‘the possibility of flight to avoid punishment; potential danger to any other person or to the community; and the likelihood of further criminal acts during the pendency of the appeal.’ Commonwealth v. Hodge (No. 1), 380 Mass. 851, 855 (1980).” Christie v. Commonwealth, 484 Mass. 397, 400 (2020).

“In ordinary times, in considering the second factor, a judge should focus on the danger to other persons and the community arising from the defendant's risk of reoffense. See Cohen [(No.2)], 456 Mass. at 132; Hodge, 380 Mass. at 855. In these extraordinary times, a judge deciding whether to grant a stay should consider not only the risk to others if the defendant were to be released and reoffend, but also the health risk to the defendant if the defendant were to remain in custody. In evaluating this risk, a judge should consider both the general risk associated with preventing COVID-19 transmission and minimizing its spread in correctional institutions to inmates and prison staff and the specific risk to the defendant, in view of his or her age and existing medical conditions, that would heighten the chance of death or serious illness if the defendant were to contract the virus.” Christie, supra at 401-402.

The third single justice considered the entire record, the trial judge's decisions in both this appeal and the pending single justice appeal,² and the then extant state of testing at North Central Correctional Institution at Gardner, where the defendant was incarcerated. She determined that the trial judge did not abuse his discretion in denying the motion, and that after exercising her own independent review and discretion, she reached the same conclusion. We too have engaged in a detailed review of the pleadings and discern no abuse of discretion or error of law in either ruling by the third single justice.

We assume, as did the trial judge, that the defendant has made some showing on prong one -- an issue that is worthy of presentation to an appellate court.³ The trial judge and the third single justice found that the defendant posed a security risk if released, and that he did not suffer from a health condition that would endanger him if he remained incarcerated.

With respect to the security risk posed by the defendant, the trial judge found that the defendant was sexually attracted to an “emotionally vulnerable” and “socially inept” thirteen year old girl,⁴ that he was “an intelligent man, possessed of good looks, ․ an outgoing personality[,] and considerable charm and deviousness.” He “befriended the victim's parents, ․ pursued a relationship with the victim, ․ [and] lulled [the concerned parents] into complacency [by] reassuring them that he knew how to deflect adolescent crushes, ․ [while] he schooled the victim in concealing the troublesome aspects of their relationship.”⁵ The trial judge found that “the defendant's keen eye for vulnerability, and his skill in exploiting it,” posed a danger to other teenage girls if he were released, and that global positioning system monitoring would not be sufficient to control his behavior at any location. The third single justice deferred to this finding, as she was permitted to do. See Christie, 484 Mass. at 401-402.

We recognize that the defendant had no prior offenses, but assessing the level of risk is the type of discretionary decision-making that the trial judge and the third single justice were entitled to make. The decision made here did not fall outside the range of “reasonable alternatives.” L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

The third single justice also considered the defendant's contentions that he suffered from hypertension and was taking Lisinopril, that both the condition and the treatment increase the likelihood of contracting COVID-19 and the risk of death if he contracted COVID-19. The support for these contentions came from an affidavit of a physician who works in an addiction program in the prison system, is board certified in emergency medicine, and is acquainted with the defendant. The doctor was not a treating physician of the defendant and did not possess expertise in infectious disease. The third single justice did not abuse her discretion or err as a matter of law in declining to give this affidavit dispositive weight, either in her review of the trial judge's decision or in her own conclusions.⁶

Even if we accepted that the defendant's medical condition may make him more susceptible to COVID-19, the record before the third single justice showed no reports -- anecdotal or otherwise -- of cases of COVID-19 among inmates at the facility where the defendant is incarcerated.⁷

In sum, although we have assumed that the defendant has presented colorable issues on appeal, we cannot say that the issues are so strong and clear cut as to require, as a matter of law, that the stay be granted, when balanced with the risk to the public and the risk to the defendant. We discern no abuse of discretion in the denial of the motion to stay.

Order of single justice entered May 15, 2020, denying motion to stay sentence, affirmed.

FOOTNOTES

2.   All of the trial judge's interrelated rulings were submitted to the third single justice and are part of the record before us.

3.   In its filings in this court, the Commonwealth has acknowledged that as a consequence of the intervening decision in Commonwealth v. Gomes, 483 Mass. 123 (2019), and the special questions on the verdict slips, various convictions should be reduced to the lesser included offense of indecent assault and battery on a person under the age of fourteen. Even with such reduction, there still would be convictions of aggravated indecent assault and battery on a person under the age of fourteen. At the motion hearing, the trial judge stated that even if the defendant prevailed on his statutory arguments as to all counts, a committed sentence would still be imposed.

4.   The victim was home schooled and had attended, along with her parents, a community education class taught by the defendant.

5.   At trial, numerous text messages between the defendant and the victim were introduced, an exchange that the trial judge characterized as a “grooming process.”

6.   The defendant's appellate brief invites us to review several journal and newspaper articles regarding his medical condition. None of these articles are grounded in an affidavit. To the extent that reference to such publications is appropriate, the publicly available Centers for Disease Control guidance refers to pulmonary hypertension, not hypertension. https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-at-higher-risk.html [https://perma.cc/A24D-L5SK]. We also note that the record was devoid of any evidence of the defendant's blood pressure or medical condition after he began the medication regime.

7.   The defendant points out, correctly, that there had been only one test at the facility when the motion was presented to the trial judge, and that the state of spread, if any, was not known. Testing began at the facility at the time of the third single justice order. According to the report of the special master, 930 inmates and fifty-six guards have been tested and there were no reported cases as of May 26, 2020. See Special Master's Weekly Report for time period ending May 26, 2020 filed pursuant to Committee for Pub. Counsel Servs. v. Chief Justice of the Trial Court, 484 Mass. 431, 448-449 (2020), available at https://www.mass.gov/service-details/committee-for-public-counsel-services-v-chief-justice-of-the-trial-court-sjc-12926 [https://perma.cc/FUJ2-KU5F].