Com. v. Allen

• Citation: 392 N.E.2d 1027,378 Mass. 489
• Parties: COMMONWEALTH v. Max J. ALLEN et al. 1 (and a companion case).
• Decision Date: 20 July 1979
• Court: United States State Supreme Judicial Court of Massachusetts

Page 1027

392 N.E.2d 1027

378 Mass. 489

COMMONWEALTH

v.

Max J. ALLEN et al. ¹ (and a companion case).

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 24, 1979.

Decided July 20, 1979.

Paul W. Shaw, Asst. Atty. Gen., for the Commonwealth.

Richard A. Gargiulo, Boston, for Michael R. Cappiello.

Ronald F. Kehoe, Boston (Barbara Bruce Williams, Boston, with him), for Max J. Allen.

Albert L. Hutton, Jr., Boston, for Martin Koplow.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN and WILKINS, JJ.

BRAUCHER, Justice.

A single justice of this court has allowed the joint motion of the defendants under G.L. c. 279, § 4, for stay of execution of sentences pending appeal, and on the Commonwealth's motion has reported to the full court questions of law raised by his decisions. G.L. c. 211, §§ 5, 6. We uphold those decisions. We also review the procedure to be followed in such cases. Cf. Commesso v. Commonwealth, 369 Mass. 368, 339 N.E.2d 917 (1975) (bail appeals before trial).

We summarize the agreed facts. In October, 1977, the defendants were indicted for conspiracy to commit arson and conspiracy to defraud an insurer in connection with property located in Boston. The crimes were alleged to have been committed during 1975. Each defendant was convicted of both charges by a jury in the Superior Court for Suffolk County in September, 1978. On October 5, 1978, the defendant Allen was sentenced to two years in a house of correction and fined $10,000; the defendant Cappiello was sentenced to two and one-half years in a house of correction and fined $10,000; and the defendant Koplow was sentenced to eighteen months in a house of correction and fined $5,000.

The same day the judge, without making findings of fact or stating reasons, denied their motions for stay of sentence pending appeal. On October 19, 1978, after hearings, a single justice of the Appeals Court denied their motions for stay under G.L. c. 279, § 4, again without findings of fact or statement of reasons. The defendants appealed to the Appeals Court pursuant to Appeals Court Rule 2:01, as amended, 3 Mass.App. 805 (1975), and the matter was briefed and argued before a three-judge panel of that court on January 5, 1979. On February 9, 1979, the Appeals Court affirmed the orders of the single justice. Commonwealth v. Allen, --- Mass.App. --- ^A, 385 N.E.2d 532 (1979). The defendants did not seek rehearing or leave for further appellate review.

On March 13, 1979, the defendants filed in the county court a joint motion for stay pending appeal. After a hearing on March 14, 1979, a single justice of this court granted the motion and ordered that the defendants be released forthwith on personal recognizance pending appeal. On March 28, 1979, the single justice denied the Commonwealth's motion for reconsideration. On April 2, 1979, the Commonwealth moved for a report of questions of law to the full court, and on April 20, 1979, the single justice reported the questions of law raised by the motion. ² Briefs were filed, and the cases were argued to the full court on May 24, 1979.

We take note of the facts that two of the defendants are members of the bar, and that they were temporarily suspended from the practice of law on November 9, 1978, by a single justice of this court. On April 10, 1979, after the stay of execution of sentence, the order of temporary suspension was vacated. One of the conditions of the April 10 order was that the appeal be monitored to avoid any delay; the two defendants are to submit a written report on the status of their appeals from the criminal convictions by the fifteenth day of each month. After the argument of the present cases, we requested a single justice of this court to take steps to expedite the appeals from the criminal convictions, and the cases were transferred to this court.

1. Our statutes. For nearly a century prior to 1895, execution of sentence was stayed upon the allowance of exceptions unless it appeared that the exceptions were "frivolous, immaterial, or intended for delay." St. 1804, c. 105, § 5. Rev.Sts. c. 81, § 29 (1836). Gen.Sts. c. 115, § 10 (1860). Pub.Sts. c. 153, §§ 11, 12 (1882). Cf. St. 1891, c. 362, § 1 (appeal). See Commonwealth v. Clifford, 145 Mass. 97, 98, 13 N.E. 345 (1887). Under St. 1895, c. 469, § 2, however, there was no stay of execution of sentence in noncapital cases "unless the justice imposing sentence, or some justice of the supreme judicial court, shall file a certificate that in his opinion there is reasonable doubt whether the judgment should stand." Rev.L. c. 220, § 3 (1902). G.L. c. 279, § 4 (Ter.Ed.1932). St. 1935, c. 50, § 3. Stay was made a matter of discretion on the part of the sentencing judge or of a justice of this court by St. 1966, c. 678, and reference to a justice of the Appeals Court was added by St. 1972, c. 740, § 17. G.L. c. 279, § 4. ³ See Mass.R.Crim.P. 31(a), --- Mass. --- (1979), and Mass.R.A.P. 6(c), --- Mass. --- (1979), effective July 1, 1979.

We have long held that the sentencing judge need not state his reasons for refusing a stay. Lebowitch, petitioner, 235 Mass. 357, 363, 126 N.E. 831 (1920). Commonwealth v. Brown, 167 Mass. 144, 146, 45 N.E. 1 (1896). Cf. Gavin v. Commonwealth, 367 Mass. 331, 343-344, 327 N.E.2d 707 (1975) (increase of sentence by Appellate Division of Superior Court); Gavin v. Chernoff, 546 F.2d 457, 459 (1st Cir. 1976) (same). We have upheld the revocation of a stay by the judge who granted it. Fine v. Commonwealth, 312 Mass. 252, 261, 44 N.E.2d 659 (1942). In three cases since 1966 we have reviewed the action of a single justice in denying a stay; in those cases we held that the petition for a stay was addressed to the discretion of the single justice, and that there was no abuse of discretion where the petitioner had not established a "reasonable likelihood of success" on appeal. Commonwealth v. Roberts, 372 Mass. 868, 362 N.E.2d 904 (1977). Di Pietro v. Commonwealth, 369 Mass. 964, 339 N.E.2d 924 (1976). Stranad v. Commonwealth, 366 Mass. 847, 318 N.E.2d 617 (1974). In each case we reviewed that likelihood, though on a limited record, and upheld the decision of the single justice. See Commonwealth v. Levin, --- Mass.App. --- ^B, 388 N.E.2d 1207 (1979), where the procedure is reviewed at length.

2. Federal and other systems. In the Federal courts, from 1891 until 1934, stay of sentence pending a writ of error or appeal in a criminal case was discretionary and was granted if the writ or appeal was not "taken merely for delay" but "taken in good faith, on grounds not frivolous but fairly debatable." United States v. Motlow, 10 F.2d 657, 662 (7th Cir. 1926) (Butler, Circuit Justice). In 1934 the Supreme Court adopted a more restrictive standard, denying bail "unless it appears that the appeal involves a substantial question which should be determined by the appellate court." Crim.Appeals Rule VI, 292 U.S. 663 (1934). Fed.R.Crim.P. 46(a)(2), 327 U.S. 868 (1946). The rule was liberalized by a 1956 amendment: "Bail may be allowed pending appeal or certiorari unless it appears that the appeal is frivolous or taken for delay." Fed.R.Crim.P. 46(a)(2), 350 U.S. 1021 (1956). See Note, Bail Pending Appeal in the Federal Courts, 32 N.Y.U.L.Rev. 557, 560 (1957).

Bail pending appeal in Federal criminal cases is now governed by the Bail Reform Act of 1966, as amended, 18 U.S.C. §§ 3146-3152 (1976), and by Fed.R.App.P. 9(b), 389 U.S. 1077 (1968), and 9(c), 406 U.S. 1007 (1972), and Fed.R.Crim.P. 46(c), 406 U.S 998 (1972). ⁴ See 3 C. Wright, Federal Practice & Procedure § 767 (1969); 15 C. Wright, A. Miller & E. Cooper, Id. § 3918 (1976); 8B J. Moore, Federal Practice par. 46.10 (2d ed.1978); 9 Id. pars. 209.06 209.08 (2d ed.1975); Note, Bail Pending Appeal in Federal Court, 57 Tex.L.Rev. 275 (1979). Under the statute a stay may be denied if the appeal is "frivolous or taken for delay."

The American Bar Association's Standards Relating to Criminal Appeals 2-4, 53-56 (Approved Draft, 1970) includes a brief survey of statutory patterns concerning bail pending appeal and a recommended standard set forth in the margin. ⁵

3. Jurisdiction. We think it is clear that G.L. c. 279, § 4, confers discretionary power to stay the execution of sentence pending appeal. The power may be exercised by the sentencing judge, by a single justice of the Appeals Court, or by a single justice of this court. The power is not exhausted when a judge or justice decides to grant or deny a stay; nor is there any doctrine of election precluding application to a justice of one court after a judge of another court has acted. As in cases of bail determinations before trial, relief must be speedy if it is to be effective, and the determination must often be done in haste, without that full inquiry and consideration which the matter deserves. See Commesso v. Commonwealth, 369 Mass. 368, 373, 339 N.E.2d 917 (1975). Each judge or justice has the power to consider the matter anew, taking into account facts newly presented, and to exercise his own judgment and discretion.

The usual policy of deferring review of interlocutory orders until after final judgment has no application. Cf. Stack v. Boyle, 342 U.S. 1, 6, 72 S.Ct. 1, 96 L.Ed. 3 (1951) (bail determination before trial); Commesso v. Commonwealth, 369 Mass. 368, 372, 339 N.E.2d 917 (1975) (same). To the extent that Commonwealth v. Roberts, 372 Mass. 868, 362 N.E.2d 904 (1977), indicates a contrary view, we do not follow it. Thus the full court has jurisdiction to review, on exceptions, report, or appeal, questions of law arising in a determination by a single justice of this court under G.L. c. 279, § 4. G.L. c. 211, §§ 5, 6. Similarly, a panel of the Appeals Court has like jurisdiction to review such a determination by a single justice of that court. Appeals Court Rule 2:01, as amended, 3 Mass.App. 805 (1975). A decision by a panel of the Appeals Court may be the subject of further appellate...