COMMONWEALTH v. WHITMORE (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This is an expedited appeal from a Superior Court order denying the defendant's emergency motion for release from unlawful restraint pursuant to Mass. R. Crim. P. 30 (a), as appearing in 435 Mass. 1501 (2001); habeas corpus; and the due process clauses of the United States Constitution and the Massachusetts Declaration of Rights. We affirm.

Background. The defendant is currently serving a sentence at the Massachusetts Correctional Institution at Norfolk (MCI-Norfolk). He pleaded guilty to several violent crimes and received a probationary sentence in July of 2019; he later violated his probation conditions and was sentenced to five to seven years at MCI-Norfolk in October of 2019.

In May of 2020, he filed an emergency motion seeking early release from his sentence because of the risks that the COVID-19 pandemic poses to him while he is incarcerated. According to his motion and accompanying papers, he is at particular risk because he suffers from human immunodeficiency virus (HIV), pure hypercholesterolemia (familial high cholesterol), sleep apnea, and asthma. In the alternative, he sought to serve the remainder of his sentence on home confinement. He renews these contentions on appeal.

Discussion. We note at the outset that we have limited authority to release already-sentenced inmates on COVID-19 grounds. See Committee for Pub. Counsel Servs. v. Chief Justice of the Trial Court (No. 1), 484 Mass. 431, 450 (2020).

The defendant's rule 30 (a) claim that his sentence has become unlawful is better understood as a claim that the fact-specific conditions of his confinement, on a lawful sentence, render his confinement unlawful.² A postconviction motion, such as the defendant's rule 30 (a) motion, is not a proper vehicle for such a claim. Cf. Committee for Pub. Counsel Servs. v. Chief Justice of the Trial Court (No. 2), 484 Mass. 1029, 1032 (2020) (“if a judge were to suspend execution of a sentence that is being served, without any pending motion challenging the conviction or the validity of the sentence when it was imposed, there could be a significant issue with art. 30 and the separation of powers”).

The defendant's due process claims, and request for habeas relief -- alleging a violation under the Eighth Amendment to the United States Constitution -- fare no better.

In Foster v. Commissioner of Correction (No. 1), 484 Mass. 698, 716-724 (2020), the Supreme Judicial Court (SJC) concluded that the plaintiff prisoners did not show a likelihood of success on the merits in proving that the incarceration conditions at any Commonwealth facility violated the Eighth Amendment, or arts. 10, 11, or 26 of the Massachusetts Declaration of Rights.

In so ruling, the SJC considered essentially the same concerns that the defendant raises here regarding, among other things, sanitization procedures, risk of transmission, the ability to engage in physical distancing, and close-quarters housing at the Commonwealth's prisons. See Foster (No. 1), supra at 704-710, 716-724.

Thus, for the reasons the SJC gave in Foster (No. 1),³ ,⁴ the defendant's request for habeas relief and due process claims were properly denied.

Order denying emergency motion for release from unlawful restraint affirmed.

FOOTNOTES

2.   Relying on Commonwealth v. Costa, 472 Mass. 139, 144 (2015), the defendant argues that rule 30 (a) provides relief where a sentence has become unlawful due to changed circumstances. In Costa, supra at 143, the change in circumstances was legal in nature, rather than factual, making the sentence at issue unlawful as it was “originally imposed.”

3.   We additionally note that, per the most recent Department of Correction report to the special master, there are no active cases among inmates or staff at MCI-Norfolk. See special master report of July 30, 2020, https://www.mass.gov/doc/sjc-12926-special-masters-weekly-report-7302020 [https://perma.cc/NJ4X-JCM6].

4.   The defendant argues that “Foster [ (No. 1), 484 Mass. 698] is not dispositive ․ [because the defendant's] claim is not based on the failure ․ to reduce the incarcerated population to safe levels but rather is based on the ․ failure to take reasonable steps to protect him from ․ complications and/or death from COVID-19.” This is ultimately a distinction without a difference. The SJC considered more than just the size of the prison population in Foster (No. 1), and the defendant seeks the same relief as the plaintiffs in that case: release from prison on COVID-19 grounds. See Foster (No. 1), supra at 699-700, 716-724.