COMMONWEALTH v. PROULX (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This is an appeal from an order denying the pro se defendant's motion to vacate, set aside, or otherwise correct the sentence on his 1980 conviction of forcible rape of a child in violation of G. L. c. 265, § 22A. While on parole for this rape conviction, the defendant was arrested and charged with murder. He was convicted of second degree murder in 1984 and is serving a parole-eligible life sentence on that murder conviction. On appeal, he argues that the remainder of his sentence on the rape charge should have begun to run at the time his parole was revoked due to the subsequent murder. He argues that it is improper for that sentence not to begin until the completion of the service of his sentence on the murder charge, and he challenges the constitutionality of G. L. c. 127, § 149.

The defendant has raised these claims pro se repeatedly in this court. A panel of this court previously ruled that the questions he raises “may be adjudicated only as a petition for writ of habeas corpus or as a declaratory judgment action against the Department of Correction (DOC) or the Parole Board, filed in a civil session with service to those parties.” Commonwealth v. Proulx, 93 Mass. App. Ct. 1123 (2018). Filing a motion in the underlying rape case, therefore, was not the procedurally correct manner to raise these claims.²

The defendant also argues in his brief that this appeal is from an order denying a petition for mandamus that he filed in Superior Court. That motion appears to have been filed in his murder case, and it is not the subject of the notice of appeal in this case. The defendant does, however, include in his appendix a copy of a petition for mandamus and a notice of appeal from the order denying that petition on January 15, 2019. In the defendant's related appeal, docket no. 19-P-1328, we have a copy of the Superior Court judge's order on the petition for mandamus, of which we may take judicial notice. Even if an appeal from that order were properly before us, for the reasons stated in our memorandum and order in that case, also issued today, there was no error in the denial of the petition for mandamus.

The order denying the defendant's motion to vacate, set aside, or otherwise correct his sentence is affirmed.

So ordered.

Affirmed

FOOTNOTES

2.   The Commonwealth informs us that the defendant has apparently sought habeas relief in a separate civil proceeding, an appeal of which is now pending in docket no. 19-P-1791. We, of course, express no opinion on the merits of that appeal or on the issues raised by the defendant.