COMMONWEALTH v. CLARKE (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant, Dwight Clarke, appeals on an expedited basis from an order of a single justice of this court denying his emergency motion for a stay of his sentence pending appeal. Discerning no error of law or abuse of discretion, we affirm.

Background. The defendant is currently serving a State prison sentence of from three to four years at the North Central Correctional Institution at Gardner (NCCI) after being convicted under the so-called “armed career criminal act” (ACCA), G. L. c. 269, § 10G (a).² The sentence was imposed on April 17, 2018, after a jury trial at which the defendant was found guilty of illegal possession of a firearm without a license, see G. L. c. 269, § 10 (a), and resisting arrest, see G. L. c. 268, § 32B, and, at a subsequent bench trial, under the ACCA. The predicate offenses for the ACCA enhancement were the defendant's adjudication as a youthful offender on charges of carrying a firearm without a license and assault by means of a dangerous weapon.

The defendant timely filed a notice of appeal from the judgments. Almost two years later, on February 14, 2020, he filed a motion pursuant to Mass. R. Crim. P. 30 (a), as appearing in 435 Mass. 1501 (2001), “to correct an illegal and unconstitutional sentence.” The motion was based on his claim that the ACCA is void for vagueness and violates due process and the doctrine of separation of powers because it permits juvenile adjudications to serve as predicate offenses. While the motion was pending, however, the coronavirus/COVID-19 emergency developed, and on April 14, 2020, the defendant filed an emergency motion to stay his sentence pending appeal. The motions were heard together on April 21, 2020, by the same judge who had presided at trial. Taking into consideration the defendant's “lack of any specific medical vulnerability,” and “a safety risk ․ with the victim, victim's family, witness, and importantly, the community,” and that the defendant had not shown a “reasonable likelihood of success” on appeal, the judge denied the motion to stay from the bench. An order entered on April 29, 2020, denying the rule 30 (a) motion, from which the defendant filed a timely notice of appeal.³

The stay having been denied by the trial judge, the defendant on June 1, 2020, filed in this court an emergency motion to stay his sentence pending appeal. In an order entered June 9, 2020, the single justice denied the motion, concluding that the trial judge had not abused his discretion and, exercising her own independent review and discretion, determining that the defendant did not meet the criteria for a stay. The appeal from the order denying the stay was docketed on June 10, 2020, and assigned to this panel.

Discussion. “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. 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” (citations and quotations omitted). Christie v. Commonwealth, 484 Mass. 397, 400 (2020). In addition, “[i]n 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.” Id. at 401-402. “The decision whether to grant a stay is within the sound discretion of the judge or justice.” Id. at 400, citing Commonwealth v. Cohen (No. 2), 456 Mass. 128, 132 (2010).

We discern no abuse of discretion. The single justice's memorandum and order demonstrates careful attention to the appropriate factors. We need not belabor the first factor -- whether “his motion for a new trial has presented an issue that ‘offers some reasonable possibility of a successful decision,’ ” Commonwealth v. Charles, 466 Mass. 63, 78 (2013), quoting Commonwealth v. Allen, 378 Mass. 489, 498 (1979)⁴ -- because we discern no abuse of discretion in either the trial judge's or the single justice's assessment of the safety risks to the community and to the defendant himself. See Commonwealth v. Levin, 7 Mass. App. Ct. 501, 506 (1979) (when denial “of a stay of execution pending appeal is predicated, in whole or in part, on reasons of security, the denial should not be disturbed on appeal unless the defendant can demonstrate abuse of discretion”).

With respect to public safety, the defendant's repeat convictions of offenses involving firearms speak for themselves. With respect to COVID-19, although the defendant's placement in a dormitory at NCCI may increase the risk of his possible exposure to the virus, he does not personally present any special health risks or vulnerabilities. In addition, all inmates and staff at NCCI were tested between May 11 and May 17, 2020, and no one tested positive for COVID-19. According to the special master's weekly report dated June 15, 2020, see Committee for Pub. Counsel Servs. v. Chief Justice of the Trial Court, 484 Mass. 431, 448 (2020), the only change reported since then was the decrease in the inmate population from the 929 tested during the week of May 11 to the 908 inmates in custody as of June 14.⁵

Conclusion. The order of the single justice entered June 9, 2020, denying the defendant's motion for a stay of sentence pending appeal, is affirmed.

So ordered.

Affirmed.

FOOTNOTES

2.   See Commonwealth v. Baez, 480 Mass. 328, 333 (2018) (Gants, C.J., concurring) (explaining how term “armed career criminal” came to be applied to G. L. c. 269, § 10G).

3.   Neither the appeal from the judgments nor the appeal from the order denying the rule 30 (a) motion have been docketed in this court.

4.   The court's discussion in Baez, 480 Mass. at 329, of the ACCA language suggests that the statute's meaning is plain, and the concurrence's appeal to the Legislature to reconsider the ACCA's “wisdom and fairness,” id. at 332, suggests that those considerations rest within the Legislature's authority. The fact that the defendant did not raise, and the court did not consider, a due process claim, id. at 330 n.5, does not imply that a colorable due process claim exists.

5.   We acknowledge the defendant's submission concerning the reportedly high rate of false negatives associated with the test used by the Department of Correction; however, there was no evidence before the trial judge, the single justice, or the panel of any case of COVID-19 at NCCI.