COMMONWEALTH v. GERVET (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This is an expedited appeal from the order of a single justice of this court denying a motion to stay execution of sentence pending appeal. We affirm.

Background. The defendant was convicted of carrying a firearm, third offense. On January 3, 2020, he was sentenced to State prison for a term of seven years (mandatory minimum) to seven years and six months. He received 702 days' credit for the time that he was incarcerated pending trial.

The defendant filed a notice of appeal from his conviction on January 7, 2020. On April 22, 2020, the defendant filed a motion in the trial court to stay execution of his sentence pursuant to Mass. R. Crim. P. 31 (a), as appearing in 454 Mass. 1501 (2009). Following a hearing, the trial judge denied the motion on May 14, 2020. On August 21, 2020, the defendant filed a 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). A single justice of this court denied the motion in a detailed memorandum of decision. See Commonwealth vs. Gervet, Appeals Ct., No. 20-J-385 (Sept. 29, 2020). The defendant's appeal from that order was expedited and referred to this panel on October 21, 2020.

Discussion. We review the single justice's denial of the motion to stay for abuse of discretion. Commonwealth v. Cohen (No. 2), 456 Mass. 128, 132 (2010).

“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)․ 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 v. Commonwealth, 484 Mass. 397, 400 (2020).

“In ordinary times, in considering the second factor, a judge should focus on the danger to other persons and the community arising from the defendant's risk of reoffense. See Cohen [ (No. 2) ], 456 Mass. at 132; Hodge, 380 Mass. at 855. 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.

The single justice considered the entire record, including denials by the suppression judge of the defendant's two motions to suppress evidence and statements, both following an evidentiary hearing; the trial judge's decision on the defendant's motion to stay; and the number of active COVID-19 cases at the Massachusetts Correctional Institution at Shirley (MCI-Shirley), where the defendant is incarcerated. The single justice determined that the trial judge did not abuse his discretion in denying the motion, and after exercising her own independent review and discretion, she reached the same conclusion. We discern no abuse of discretion or error of law in the ruling of the single justice.

The defendant contends that the denials of his motions to suppress raise issues worthy of presentation to the appellate court.² Assuming without deciding that the defendant has made an adequate showing on prong one, as set out in Christie, we next turn to the issue of security. The trial judge and the single justice found that the defendant posed a security risk if released. Specifically, the trial judge found that the defendant, who had more than four years of his sentence left to serve, had a demonstrated “inability to conform his conduct to the requirements of [the] law.” The trial judge found that the defendant was rearrested shortly after his first conviction of possession of an illegal firearm, and that after his second firearm conviction, the defendant was yet again arrested for the present firearm conviction. Moreover, the trial judge found that although possession of a firearm in and of itself is not a crime of violence, the defendant has ongoing involvement with the “Castlegate Street gang,” and that his car was shot at while he was inside of it at the Grove Hall area of the Dorchester section of Boston. Indeed, the defendant admitted to the police that he was carrying the firearm at issue here for “protection.” The single justice deferred to these findings, as she was permitted to do. See Christie, 484 Mass. at 401-402.

Although the defendant highlights his parents' willingness to have him live with them if he is released, assessment of the level of risk is the type of discretionary decision-making that the trial judge and the single justice were entitled to make. Indeed, the defendant was living with his parents at the time that he committed the crime at issue here. The decision made here did not fall outside the range of “reasonable alternatives.” L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

The single justice also considered the defendant's contention that his health conditions put him at an increased risk for death or serious illness if he is infected with COVID-19. The defendant, age twenty-nine, suffers from a respiratory issue that could put him at higher risk for severe illness. The single justice considered the affidavits of the defendant and his parents, the defendant's medical records, and the affidavit of Carol Mici of the Department of Correction. Even accepting that the defendant's medical condition may make him more susceptible to COVID-19, the record before the single justice showed no reports -- anecdotal or otherwise -- of active cases of COVID-19 among inmates at the facility where the defendant is incarcerated.³ Thus, the potential health risks to the defendant do not outweigh the security risk the defendant poses to the community if he is released.

In sum, we discern no abuse of discretion in the denial of the motion to stay.

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

FOOTNOTES

2.   The trial judge, who was not the suppression judge, concluded that the “likelihood of appellate reversal of the ruling on the motion [to suppress] under existing law appears not likely.”

3.   We note that after the single justice's decision, the special master appointed by the Supreme Judicial Court pursuant to Committee for Pub. Counsel Servs. v. Chief Justice of the Trial Court (No. 1), 484 Mass. 431, 448-449 (2020), reported one case of a correctional officer at MCI-Shirley testing positive for COVID-19. The one case was listed as “active” for the period from September 24 through October 7, 2020, but as of the special master's latest report dated October 22, 2020, there are currently no active cases.