COMMONWEALTH v. NORRIS (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

This is the defendant's consolidated, expedited appeal from an order denying his motion to modify sentence and/or stay execution of his sentence, pursuant to Mass. R. Crim. P. 31 (a), as appearing in 454 Mass. 1501 (2009),² and from an order of the single justice of this court denying his motion to stay, pursuant to Mass. R. A. P. 6, as appearing in 481 Mass. 1608 (2019). For the reasons that follow, we are constrained to affirm both orders.

Following a jury trial in the Superior Court in 1992, the defendant, who was age eighteen at the time of the crimes, was convicted of three counts of aggravated rape, two counts of armed robbery, assault by means of a dangerous weapon, and breaking and entering a building in the daytime with intent to commit a felony and putting an occupant in fear. He was sentenced to concurrent terms of twenty-five to forty years in State prison on the rape and robbery convictions, and to concurrent lesser sentences on the remaining convictions. His appeal from his sentence to the Appellate Division of the Superior Court was denied. His direct appeal ³ and each of his seven subsequent motions for new trial, including a challenge to his sentence pursuant to G. L. c. 211, § 3, were unsuccessful.

In 2018, the defendant was granted parole; however, the defendant had an unauthorized “smart” cellular telephone (smartphone) in his possession -- a parole violation -- that resulted in his reincarceration in 2019. The defendant is currently eligible for parole next month, July 2020. He is presently serving his sentence at the Massachusetts Treatment Center at Bridgewater (MTC).

The defendant claims error in the denial of his requested relief because he was eighteen years of age at the time of the crimes, the legal landscape has changed in light of scientific developments on adolescent brain development, he had a traumatic childhood, and, at his sentencing, the Commonwealth misrepresented the circumstances surrounding a prior crime. The Commonwealth counters that these issues are waived and that the defendant is estopped from raising these claims again. Moreover, the Commonwealth asserts that the defendant was paroled and remains parole eligible, and, therefore, his sentence is not illegal. See generally Diatchenko v. District Attorney for the Suffolk Dist., 471 Mass. 12 (2015). Lastly, the Commonwealth contends that the defendant is a flight risk,⁴ and that he does not face a heightened risk of death or serious illness from COVID-19 while in prison. Christie v. Commonwealth, 484 Mass. 397, 401-402 (2020).

We agree with the Commonwealth that the defendant's claims relative to his sentence are waived. See Commonwealth v. Balliro, 437 Mass. 163, 170-171 (2002). But even assuming they were not, 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). The defendant unfortunately fares no better on the question of the specific risk to him relative to the transmission of COVID-19. Christie, 484 Mass. at 401-402. The medical records supplied by the defendant indicate that he has been prescribed an inhaler, as needed, for asthma; he is forty-seven years old; and he has no other physical ailments. This constellation of facts does not suggest that the defendant is at heightened risk of death or serious illness if he contracts COVID-19. See id. Moreover, the most recent report of the special master, see Committee for Pub. Counsel Servs. v. Chief Justice of the Trial Court, 484 Mass. 431, 448-449 (2020), reflects only twelve confirmed COVID-19 cases at the MTC since May 11, 2020, and none since June 1, 2020.

We are sympathetic to the defendant's situation. He has accepted full responsibility for crimes that he described in an April 2020 affidavit as “very horrific.” It is undisputed that the defendant completed a number of programs while incarcerated, including sex offender treatment. After serving a considerable portion of his sentence, the defendant was paroled in 2018. Thereafter, the parole board learned that the defendant had an unauthorized smartphone, which the defendant readily admitted.⁵ Possession of this smartphone -- a nonviolent, technical violation -- resulted in the revocation of his parole, and remains the only reason why he is currently incarcerated. Ultimately it is the parole board that holds the proverbial “key” to the defendant's freedom. We are mindful that his reincarceration stemmed solely from his possession of a smartphone, a condition that does not appear to be directly related to the crimes of which the defendant was convicted. However, the defendant has not met the standard for relief from this panel on a motion to stay execution of the remainder of his sentence, and we are without authority to release him from incarceration based on any questions that we may hold regarding the circumstances that led to the revocation of his parole in 2019.

Order denying motion to modify sentence and/or stay execution of sentence affirmed.

Order of single justice affirmed.

FOOTNOTES

2.   See generally Christie v. Commonwealth, 484 Mass. 397 (2020).

3.   Commonwealth v. Norris, 40 Mass. App. Ct. 1107 (1996). Further appellate review was denied, 422 Mass. 1107 (1996).

4.   We disagree with the Commonwealth that the defendant is a flight risk. He has roots in the community and, notably, while on parole did not flee the area.

5.   We recognize that with the advancements in technology, it is increasingly difficult to purchase a cell phone that does not have smart capabilities.