Com. v. Levin

• Decision Date: 04 May 1979
• Parties: COMMONWEALTH v. Barry LEVIN (and seven companion cases 1 ).
• Court: Appeals Court of Massachusetts

Page 1207

388 N.E.2d 1207

7 Mass.App.Ct. 501

COMMONWEALTH v. Barry LEVIN (and seven companion cases ¹).

Appeals Court of Massachusetts, Norfolk.

Argued April 19, 1979.

Decided May 4, 1979.

Gerald Alch, Boston, for Barry Levin.

James D. St. Clair, Boston (Robert D. Keefe, Boston, with him), for Earle Groper.

John P. Kivlan, Asst. Dist. Atty. (William D. Delahunt, Dist. Atty., with him), for the Commonwealth.

Before ARMSTRONG, GREANEY and PERRETTA, JJ.

ARMSTRONG, Justice.

Following a six-week trial in the Superior Court, the defendants were convicted of uttering a forged life insurance policy, larceny of the policy by false pretenses, and attempted larceny of the proceeds of the policy. ² They were sentenced to terms of six to eights years at M.C.I. Walpole on the uttering convictions; other, shorter sentences concurrent with the six to eight year terms were imposed for various other convictions. Both defendants appealed. The trial judge denied stays of execution pending appeal (other than short ones for purposes of presenting motions for such stays in this court), as did a single justice of this court. See G.L. c. 279, § 4, as amended through St.1972, c. 740, § 17. The cases are before us on appeals from the denials by the latter. See Appeals Court Rule 2:01, as amended, 3 Mass.App. 805 (1975); Commonwealth v. Roberts, 372 Mass. 868, 362 N.E.2d 904 (1977).

We begin by examining the scope of appellate review, which has been a subject of some disagreement among the parties. The Commonwealth contends that a stay of execution pending appeal lies within the discretion of the single justice and that the determination by the single justice will not be reversed in the absence of an abuse of discretion. That contention finds support in many cases, including Commonwealth v. Drohan, 210 Mass. 445, 448, 97 N.E. 89 (1912); Lebowitch, petitioner, 235 Mass. 357, 363, 126 N.E. 831 (1920); Fine v. Commonwealth, 312 Mass. 252, 261, 44 N.E.2d 659 (1942); Di Pietro v. Commonwealth, 369 Mass. 964, 339 N.E.2d 924 (1976); Commonwealth v. Roberts, supra. Most recent cases have tended to lay special emphasis on whether the defendant has made a showing that he has a reasonable likelihood of success on appeal. See Stranad v. Commonwealth, 366 Mass. 847, 318 N.E.2d 617 (1974); Di Pietro v. Commonwealth, supra; Commonwealth v. Roberts, supra; Commonwealth v. Allen, --- Mass.App. --- ^A, 385 N.E.2d 532 (1979).

In the case last cited, Commonwealth v. Allen, the defendant argued that the Legislature, by St.1966, c. 678, had manifested an intention that stays should be granted regardless of whether the defendant has shown a reasonable likelihood of success. That statute amended G.L. c. 279, § 4, which had theretofore required the trial judge or a single justice, as a precondition of granting a stay of execution in a noncapital case, to file "a certificate that in his opinion there is reasonable doubt whether the judgment should stand." It was argued that, under G.L. c. 279, § 4, as amended, the standard to be applied by the single justice should be whether the appeal is "frivolous," ³ a standard which was characterized as "less stringent" than the "reasonable likelihood of success" standard. By contrast, the Commonwealth argues in the present cases that the latter standard is not met unless the defendant is able to demonstrate a high probability of reversal on appeal. We reject both contentions.

It has been customary, on the criminal side of the court, to employ the words "reasonable likelihood of success," but on the civil side of the court to employ the words "meritorious issue" or "meritorious claim" in analogous situations. A "meritorious claim," or "meritorious appeal," has been held to mean "one which is worthy of judicial inquiry because raising a question of law deserving some investigation and discussion . . .", Lovell v. Lovell, 276 Mass. 10, 11-12, 176 N.E. 210, 211 (1931); Russell v. Foley, 278 Mass. 145, 148, 179 N.E. 619 (1932), ". . . one that is worthy of presentation to a court, not one which is sure of success," General Motors Corp., petitioner, 344 Mass. 481, 482, 182 N.E.2d 815, 815-816 (1962). Despite the difference in terminology, the concepts are, in our view, substantially identical. Although our cases have not discussed the relationship between the terms, we can assert, on the basis of some familiarity, that in the day-to-day business of hearing applications for stays of execution of sentence in our single justice sessions, the concept that our judges have in mind when they apply the standard of "reasonable likelihood of success on appeal" is not one of substantial certainty of success, but rather is one equivalent to the civil concept of "meritorious appeal"; that is, an appeal which 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. Both the civil and criminal terms import the contradictory of the word "frivolous"; for how can it be said that an appeal which has no reasonable likelihood of success, which presents no meritorious issue to be determined on appeal, is other than "frivolous"?

The statutory change in 1966 may have been intended to enable the trial judge and the single justice to grant a stay of execution of sentence without making a determination that the appeal would present a meritorious issue; the correctness of that view does not arise in these cases because both judges denied the stays sought by the defendants. In an appeal such as these, from a denial of a stay of execution, we need not determine what circumstances might have warranted the granting of a stay, but only whether the judge erred in denying it. And the case law since the 1966 amendment has held unequivocally that, "(w)here the (defendant) has not established a reasonable likelihood of success on appeal, there can be no abuse of discretion in denying a stay of execution of a sentence pending that appeal." Di Pietro v. Commonwealth, 369 Mass. at 964, 339 N.E.2d at 925. See also Commonwealth v. Roberts, supra; Commonwealth v. Allen, supra.

Two distinct categories of considerations should govern the exercise of discretion by the trial judge or the single justice in acting on a motion for a stay of execution of sentence pending appeal. There are those relating to security, such as the possibility of flight to avoid punishment and of further acts of criminality during the pendency of the appeal, as to which such factors as familial status, roots in the community, employment, prior criminal record, and general attitude and demeanor, are customarily taken into consideration. These considerations involve determinations of fact and the exercise of sound, practical judgment and common sense; and as to such considerations it is frequently said that the exercise of discretion by the judge will be upheld unless his action is one "that no conscientious judge, acting intelligently, could honestly have taken." Commonwealth v. Roberts, supra, quoting Davis v. Boston Elev. Ry., 235 Mass. 482, 502, 126 N.E. 841, 846 (1920). The other category of considerations (this category being first in terms of logical priority) is that relating to the likelihood of success on the merits of the appeal. These considerations present pure questions of law, or legal judgment, as to which an appellate tribunal is as competent to make an assessment as the trial judge or the single justice. In reviewing the judge's assessment of the questions of law presented by the appeal, the scope of review should be correspondingly broader; and if an appellate court has a clear conviction that an appeal does present a genuine and meritorious question of law for decision, there is no reason in logic why it should defer to the contrary judgment of the trial judge or the single justice.

We conclude, therefore, that when a denial by a single justice of a stay of execution pending appeal is predicated, in whole or in part, on reasons of security, the denial should not be disturbed on appeal unless the defendant can demonstrate abuse of discretion in the traditional sense mentioned above; but where such a denial is predicated upon a conclusion that there is no meritorious issue to be presented on appeal, an appellate court may reverse the denial if, upon its evaluation of the legal contentions as presented to the single justice, it is left with a firm conviction that the appeal does present a meritorious issue for decision on appeal, and thus that the defendant has a reasonable likelihood of success on appeal.

In the present cases the Commonwealth has not argued, either before the single justice or before us, that reasons of security are a factor to be considered in denying the stays of execution sought by the defendants. Both defendants are men with substantial roots in the community, who are active in professional or business affairs. They have not, so far as appears, had any prior criminal involvement; the crimes of which they stand convicted are not crimes of violence; and they have maintained at all times that they are innocent of those crimes. When the single justice denied the stays "in (his) discretion," he obviously did not have such factors in mind, and the Commonwealth does not contend that the denials could be sustained on that basis.

Rather, the case was put to the single justice, both by the defendants and by the Commonwealth, as one involving the sole issue whether the defendants had a reasonable likelihood of success on appeal; and when the single justice denied the motions for stay in his "discretion," we take this to mean that it was his opinion or judgment that the legal issues sought to be presented in the appeals lacked merit. Such an opinion or judgment is one of discretion in the broad sense that lawyers may differ in their assessment of the likelihood of success; but it is essentially an exercise of legal judgment, as to which the scope of...