COMMONWEALTH v. LOPES (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This is the defendant's expedited consolidated appeal from (1) the order denying, without a hearing, his motion to revise or revoke his sentence pursuant to Mass. R. Crim. P. 29 (a), as appearing in 474 Mass. 1503 (2016); (2) the orders denying two motions for reconsideration; and (3) the order denying a motion to subpoena medical records. The defendant argues, pursuant to the Supreme Judicial Court's recent holding in Christie v. Commonwealth, 484 Mass. 397 (2020), that the COVID-19 pandemic necessitates his release from the Dartmouth house of correction and, for that reason, the judge's decisions were in error. For the reasons that follow, we affirm.

Background. On May 8, 2019, the defendant pleaded guilty to indecent assault and battery on a person over fourteen years of age and, in a separate case involving the same victim, to assault and battery in violation of an abuse prevention order.² In both cases, he was placed on probation and ordered to complete a mental health evaluation and any recommended treatment. The conditions of probation as to the conviction of assault and battery in violation of a restraining order also included the requirement that he enter and complete a “certified batterer's program.”³ The defendant failed to comply with those conditions and a probation warrant issued for his arrest on June 21, 2019. Pursuant to the warrant, he was arrested on January 16, 2020. After admitting to violating his probation conditions on February 11, 2020, he was sentenced to one year of incarceration for both offenses to the Dartmouth house of correction with said sentences to run concurrently.

On April 9, 2020, the defendant timely filed a motion to revise and revoke his one-year sentence due to concerns about the impact of the COVID-19 pandemic on his health. Attached to his motion was an affidavit from the defendant's counsel asserting that the defendant suffers from asthma, epilepsy, grand mal seizures, heart palpitations, and anxiety. The judge denied the motion on the papers without prejudice because counsel's affidavit provided no proof of the defendant's alleged medical conditions. In response, the defendant filed his first motion for reconsideration, attaching a second affidavit from his counsel averring that the defendant also suffers from bipolar disorder and that his circumstance is more dire because, inter alia, since his last pleading two staff members at the Dartmouth house of correction tested positive for COVID-19. The judge denied the motion without a hearing, finding that she was “not persuaded that justice was not done” in the defendant's sentencing and that the defendant's health claims were unsubstantiated. She assumed, however, for purposes of the motion, that the defendant's purported medical conditions were true. Still, she expressed “significant concerns” about the defendant's plan to quarantine in a separate bedroom in his pregnant fiancée's home given his recent convictions of domestic abuse of a different girlfriend, and his failure to comply with the court-ordered mental health evaluation and domestic violence programming, which were conditions of his probation. The judge noted the defendant's history of noncompliance with court orders and extrapolated that the defendant would be unlikely to comply with imposed conditions of release should he be released.

On April 20, 2020, the defendant filed a second motion for reconsideration to which he attached an affidavit from his fiancée, with whom he would be staying if his motion was granted. The affidavit stated that their relationship was a nonviolent one and that the defendant had always been respectful of her. The motion was denied on April 30, 2020.

On May 7, 2020, the defendant filed a motion to subpoena his medical records. The judge denied the motion, stating:

“In this Court's Memorandum of Decision on Defendant's Motion for Reconsideration of his Denied Motion to Revoke and Revise His Sentence, I assumed for the purposes of the motion that the defendant currently suffers from asthma, epilepsy and seizures as alleged in his Affidavit/letter. Accordingly, this motion is denied. The defendant can certainly seek his own medical records. His counsel's demand for records from the House of Correction within three hours appears unreasonable. Additionally, seeking medical records through the Court from Florida and an unknown hospital in [Washington Ohio] requires notice and interstate witness subpoenas.”

In response, on May 15, 2020, the defendant filed the second motion for reconsideration. The motion was denied. The defendant filed his notice of appeal on June 23, 2020.

Discussion. Under rule 29 (a), a judge may “reconsider the sentence he has imposed and determine, in light of the facts as they existed at the time of sentencing, whether the sentence was just” (quotation and citation omitted). Commonwealth v. Jackson, 80 Mass. App. Ct. 528, 533 (2011). We review the denial of a motion to revise or revoke a sentence for an abuse of discretion. See Commonwealth v. Barclay, 424 Mass. 377, 380-381 (1997); Commonwealth v. Shagoury, 6 Mass. App. Ct. 584, 599 (1978).

Here, we see no abuse of discretion in the judge's orders.⁴ Notwithstanding the defendant's failure to provide any substantiation for the variety of medical maladies he claims to suffer from, the judge assumed for the sake of the motions that the allegations were true. The judge was wary of the defendant's intentions to live with his fiancée considering he was convicted and incarcerated for domestic violence involving a former romantic partner. The judge also considered the fact that the defendant's failure to comply with court orders and previous probation conditions reflected adversely on his ability to follow conditions of release and, in light of the concerns highlighted in Christie, 484 Mass. at 401-402, considered whether denial of the stay would present an increased risk of contracting COVID-19 and, if so, whether his particular medical condition would put him at heightened risk of serious injury or death if he were to contract the virus.⁵ As noted in the judge's order denying the defendant's motion for the subpoena of medical records, the defendant is capable of acquiring his own medical records.

Orders denying motions to revise and revoke, for reconsideration, and to subpoena medical records affirmed.

FOOTNOTES

2.   The defendant's girlfriend at the time was the victim of both assaults.

3.   Now referred to as an “intimate partner abuse education program.”

4.   The defendant's claim that he was entitled to a hearing fails, because rule 29 (b) authorizes a judge to deny a motion to revise and revoke “on the basis of facts alleged in the affidavits without further hearing,” and the defendant makes no developed argument that this provision violates constitutional due process requirements.

5.   Taking judicial notice of the weekly reports filed by the special master pursuant to Committee for Pub. Counsel Servs. v. Chief Justice of the Trial Court, 484 Mass. 431, 448-449 (2020), we see nothing in the most recent report that, had it been available to the judge at the time of her rulings, would cause any of those rulings to be an abuse of discretion.