COMMONWEALTH v. COSTA (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This is the defendant's appeal from an order of the single justice of this court denying his motion to stay execution of his sentence, pursuant to Mass. R. A. P. 6, as appearing in 481 Mass. 1608 (2019). Because we conclude that the single justice did not abuse her discretion in light of the defendant's youth, lack of medical conditions, and his actions in this case, we affirm. See generally Christie v. Commonwealth, 484 Mass. 397 (2020).

“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 consideration. “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.

We assume, without deciding, that the defendant meets the minimal threshold for requesting a stay of his sentence of presenting an appellate issue worthy of presentation to this court.² As to the remaining considerations, we note that the defendant was convicted of three counts of indecent assault and battery on an eleven year old child, with whom he was in a position of trust. He took advantage of that relationship to commit the offenses, which were not isolated incidents.³ Rather, there were multiple assaults over a period of three months. This repeated criminal conduct raises a question whether the defendant's release pending appeal would put the victim or other children at risk. See Lewis v. Commonwealth, 429 Mass. 1007, 1007 (1999) (“repeated acts of fraud on would-be investors created the possibility that he might commit further crimes during the pendency of his appeal”).

As to the defendant's specific health risk posed by COVID-19, he is thirty-one years old and has presented no evidence that he is at any particular risk from the virus. See Christie, 484 Mass. at 401-402 (“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”). The record before the single justice showed that, as of June 4, 2020, there were thirteen inmates at the Bristol County house of correction (BCHC) that were suspected of having contracted COVID-19, and that eight employees were not reporting to work based on symptoms that they experienced.⁴

On these facts, we discern no abuse of discretion in the single justice's determination that the defendant failed to establish his entitlement to a stay of execution of his sentence.

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

FOOTNOTES

2.   He claims error in one aspect of the jury instructions.

3.   The victim and her mother were family friends of the defendant, and they were often at social events together.

4.   As of July 2, 2020, there was one test and zero reported cases of COVID-19 at BCHC.