COMMONWEALTH v. CAIN (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This is an expedited appeal from the order by a single justice of this court denying an emergency motion to stay execution of sentence. A separate appeal from the order denying a stay by the Superior Court judge was consolidated with this appeal from the single justice order, and that portion of the appeal is dismissed.² For the reasons that follow, we affirm the single justice order.

The defendant currently is serving a sentence at the Massachusetts Correctional Institution at Norfolk (MCI-Norfolk) for rape.³ Pursuant to Mass. R. Crim. P. 30 (a), as appearing in 435 Mass. 1501 (2001), the defendant filed what he styled a “motion for release from unlawful restraint.” That motion seeks the defendant's early release from his sentence because of the risks posed to him by the COVID-19 pandemic while he is incarcerated. According to his motion and the accompanying papers, he is at particular risk based on his age and his suffering from diabetes, hypertension, and liver disease. The defendant's motion for release is pending in the Superior Court.

On June 10, 2020, based on the Supreme Judicial Court decision in Christie v. Commonwealth, 484 Mass. 397 (2020), the defendant filed in the Superior Court an emergency motion to stay execution of his sentence pursuant to Mass. R. Crim. P. 31 (a), as appearing in 454 Mass. 1501 (2009). The trial judge denied the defendant's motion on June 16, 2020. On June 19, 2020, the defendant 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). In an order entered July 1, 2020, a single justice of this court denied the motion, concluding that the trial judge had not abused his discretion and, exercising her own independent review and discretion, determined that the defendant did not meet the criteria for a stay. The defendant's expedited appeal of the single justice's order denying the emergency motion to stay was referred to this panel on July 8, 2020. Discerning no abuse of discretion in the order of the single justice, we affirm.

“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). See [Commonwealth v. Cohen (No. 2), 456 Mass. 128, 132 (2010)]. 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, 484 Mass. at 400.

Because of the risk to inmates posed by COVID-19, the Supreme Judicial Court recently added a third factor. “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, 484 Mass. at 401-402. We review the denial of a motion to stay execution of sentence for abuse of discretion. See Cohen (No. 2), 456 Mass. at 132.

The Supreme Judicial Court has made it clear that judges have limited authority to release inmates serving custodial sentences due to the threats posed by COVID-19. See Committee for Pub. Counsel Servs. v. Chief Justice of the Trial Court, 484 Mass. 431, 450 (2020). The availability of relief from a sentence only arises where “a defendant (1) has moved under Mass. R. Crim. P. 29, [as appearing in 474 Mass. 1503 (2016),] within sixty days after imposition of sentence or the issuance of a decision on all pending appeals, to revise or revoke his or her sentence, (2) has appealed the conviction or sentence and the appeal remains pending, or (3) has moved for a new trial under Mass. R. Crim. P. 30.” Committee for Pub. Counsel Servs., supra. The defendant has not sought relief pursuant to any of these avenues; instead, the defendant maintains that his continued incarceration during the COVID 19 pandemic violates his right under the Federal and State Constitutions (such as the prohibition against cruel and unusual punishment in the Eighth Amendment to the Unites States Constitution). Although the single justice noted that an unpublished decision issued by a different panel of this court had rejected “an argument very similar to the one made by the defendant” on procedural grounds, referring to Commonwealth v. Howell, 97 Mass. App. Ct. 1124 (2020), her memorandum and order nevertheless demonstrates careful attention to all of the appropriate factors. The defendant's criminal history of violent offenses, including multiple rape convictions and convictions of armed robbery, assault and battery by means of a dangerous weapon, kidnapping, and escape, as well as his noncompliance with probation conditions, evidenced safety risks that the defendant would pose to the community that weighed heavily in the single justice's decision. In addition, she considered the elevated risk of severe illness to the defendant based on his age and medical conditions and the number of inmates, correctional officers, and staff at MCI-Norfolk who tested positive for COVID-19 as of June 14, 2020. After taking into account all of the circumstances presented by the defendant, the single justice discerned no abuse of discretion in the judge's denial of the defendant's motion to stay and, upon exercising her independent review and discretion, reached the same conclusion.

In sum, the defendant has not shown that the single judge abused her discretion in denying his rule 6 motion.

Appeal from June 16, 2020, Superior Court order denying emergency motion to stay execution of sentence dismissed.⁴

Order of single justice denying motion to stay execution of sentence affirmed.

FOOTNOTES

2.   The defendant purported to appeal from a Superior Court order denying his emergency motion to stay execution of sentence. The Superior Court clerk's office assembled the record and, upon its receipt in this court, it was docketed pursuant to Mass. R. A. P. 10 (a) (2), as appearing in 481 Mass. 1618 (2019), as docket number 20-P-750. Because the motion to stay execution of sentence was based, in part, on the COVID-19 pandemic, the appeal was expedited. Because the order denying the motion to stay execution of sentence by the trial judge is not subject to review in the Appeals Court, see Commonwealth v. Allen, 378 Mass. 489, 499 (1979), we dismiss the portion of the appeal that began as docket number 20-P-750 (20-P-750 was consolidated with the within appeal). Notably, the defendant sought a stay of execution of sentence from a single justice of this court, which was denied and is the subject of this decision.

3.   The defendant was sentenced in 2015 to twenty years in prison on one count of rape as a habitual offender and a concurrent sentence of life imprisonment on one count of rape, subsequent offense.

4.   See note 1, supra.