Commonwealth v. Denehy

Decision Date08 January 2014
Docket NumberSJC–11296.
Citation2 N.E.3d 161,466 Mass. 723
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court


Merritt Schnipper for the defendant.

Deborah D. Ahlstrom, Assistant District Attorney, for the Commonwealth.

Martha Coakley, Attorney General, & Randall E. Ravitz, Assistant Attorney General, for the Attorney General, amicus curiae, submitted a brief.



The defendant, Edward J. Denehy, was convicted of disorderly conduct in violation of G.L. c. 272, § 53, and assault by means of a dangerous weapon in violation of G.L. c. 265, § 15B, on May 10, 2011, nearly three years after his initial arraignment on August 21, 2008. On appeal, he makes two primary arguments. First, he contends that he was not afforded a speedy trial under Mass. R.Crim. P. 36(b), as amended, 422 Mass. 1503 (1996), and therefore he is entitled to dismissal of the charges against him with prejudice. Second, he avers that the trial judge's order of restitution to compensate a police officer whose glasses were damaged during his interaction with the defendant was unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and its progeny, which require certain factual findings relevant to sentencing to be made by a jury. Further, he contends that, where he was acquitted of assault and battery on a police officer, the restitution award did not have a sufficient nexus to the crimes of which he was convicted. We granted the defendant's application for direct appellate review to clarify ambiguities regarding the Mass. R.Crim. P. 36 calculus and restitution orders.1

We conclude that the defendant was denied a speedy trial, and any failures by his trial counsel to perfect that claim constituted ineffective assistance of counsel. Although we resolve this matter on those grounds, we further conclude that the trial judge's determination of a restitution award did not violate Apprendi principles nor run astray of our “causal connection” requirement for such awards under Commonwealth v. McIntyre, 436 Mass. 829, 834, 767 N.E.2d 578 (2002). Because the requirements of rule 36 were not met, however, the defendant is entitled to have his convictions vacated and the complaints dismissed.2

Background. On August, 20, 2008, the defendant engaged in a confrontation with police officers at his home in Springfield. Officer Timothy Morrow of the Springfield police department entered the defendant's property on foot through an open gate after pursuing an unregistered, speeding dirt bike, which he then observed to be parked in a shed on the defendant's property. The officer briefly returned to his vehicle, and when he went back to the property, he found the defendant standing behind a closed gate, accompanied by a Great Dane dog and blocking the officer's reentry. During the conversation that followed, the defendant refused to permit Officer Morrow to enter his property and allegedly threatened to have his dog attack the officer if he entered. When several other officers arrived at the scene, they informed the defendant that they would enter the property to obtain the dirt bike and instructed him to remove the dog.

After opening the gate and entering the property, Officer Morrow was reportedly struck on the head and his glasses were damaged. In response to the confusion that ensued, a second officer sprayed the dog and then the defendant with pepper spray, while a third officer attempted to separate the dog from the defendant. The defendant was then handcuffed.

The next day, on August 21, 2008, the defendant was arraigned and charged with one count each of assault and battery on a police officer (G.L. c. 265, § 13D), disorderly conduct (G.L. c. 272, § 53), and assault by means of a dangerous weapon (G.L. c. 265, § 15B). Due to court congestion and requested continuances, the case was continued for more than twenty months. On May 5, 2010, the parties appeared in court for trial, but for the third time the Commonwealth did not have an essential witness present. The defendant moved to dismiss, and the trial judge granted the motion without prejudice.

On July 28, 2010, the Commonwealth sought a new complaint with identical charges, and on August 12, 2010, the defendant was arraigned on that complaint. On November 17, 2010, one day prior to the scheduled trial date, the defendant filed a motion to dismiss for lack of a speedy trial under Mass. R.Crim. P. 36. The docket sheet indicates that, on the next day, the rule 36 motion was withdrawn, and the case was continued at the defendant's request. Due to further requested and court-imposed continuances, trial was not held until May 9, 2011.

At trial, a jury found the defendant guilty of disorderly conduct and assault by means of a dangerous weapon, and not guilty of assault and battery on a police officer. The trial judge assessed a one hundred dollar fine on the disorderly conduct conviction and ordered unsupervised probation. In addition, she ordered restitution to be paid to Officer Morrow in the amount of $264, for the replacement of his damaged glasses.

Discussion. 1. Speedy trial. We turn first to whether the defendant's rule 36 motion to dismiss for lack of a speedy trial is properly before us. The defendant argues first that this court should correct or modify the record, in accordance with a motion he filed pursuant to Mass. R.A.P. 8(e), as amended, 378 Mass. 932 (1979), to deem his motion to dismiss denied rather than withdrawn, and second that his rule 36 motion should be granted because he was denied a speedy trial. The Commonwealth asserts that the defendant's rule 36 motion was clearly withdrawn and therefore the issue is not preserved on appeal, and that applicable exclusions under rule 36 render the proceedings within the twelve-month period required by the rule. We agree with the Commonwealth that the defendant's motion must be considered withdrawn, but we conclude that the withdrawal of the motion in the circumstances of this case constituted ineffective assistance of counsel and therefore consider its merits.

a. Rule 8(e) motion. Under Mass. R.A.P. 8(e), if the record does not “truly disclose[ ] what occurred in the lower court,” a party may move to correct the record “to conform to the truth.” The day after counsel filed the rule 36 motion, the motion judge discussed the motion with the parties but did not rule on it. The docket entry from that day indicates that the motion was “withdrawn.” The defendant argues that the docket entry is an erroneous interpretation of a confusing exchange with the judge at the motion hearing.

Docket entries “import incontrovertible verity” and “stand as final” unless corrected by the court. Savage v. Welch, 246 Mass. 170, 176, 140 N.E. 787 (1923). See Barry v. Commonwealth, 390 Mass. 285, 285, 289, 455 N.E.2d 437 (1983) (“When a claim is raised under rule 36, the docket and minutes of the clerk are prima facie evidence of the facts recorded therein”). In assessing whether a record correction is needed, docket entries may be “supplemented, or even rebutted, by other evidence,” including affidavits. Commonwealth v. Mattos, 404 Mass. 672, 676–677, 536 N.E.2d 1072 (1989). Accord Commonwealth v. Fling, 67 Mass.App.Ct. 232, 237, 852 N.E.2d 1137 (2006). However, [a] party's self-serving and uncorroborated assertions of what transpired at trial cannot serve as grounds to contend that the official record of the proceedings, prepared by a neutral court official, was falsified.” Zabin v. Picciotto, 73 Mass.App.Ct. 141, 173, 896 N.E.2d 937 (2008). Thus, “absent a showing that the court has intentionally falsified the record,” the court's “determination is conclusive.” Id. at 172, quoting Burda v. Spencer, 28 Mass.App.Ct. 685, 689, 554 N.E.2d 1227 (1990).

The only evidence the defendant proffers in support of his argument is an affidavit from trial counsel expressing her intentions and an ambiguous statement in the transcript.3 This is insufficient to rebut the prima facie verity of the docket. Trial counsel had ample opportunity during the course of the lower court proceedings to indicate on the record her desire to continue to pursue the motion or to seek correction of the docket entry. Cf. Parks v. Johnson, 46 Mass.App.Ct. 905, 905, 703 N.E.2d 728 (1998) (court declined to consider issue of jury instructions where record did not reflect that appellant had objected and appellant had not attempted to correct record to reflect sidebar colloquy in which appellant purportedly objected). We therefore deny the defendant's motion to correct or modify the record and consider the rule 36 motion withdrawn.

Although the rule 36 issue is technically waived, we assess whether trial counsel's error in failing to preserve this issue amounted to ineffective assistance of counsel, a claim alluded to in the parties' briefs. Counsel's performance is ineffective if “there has been serious incompetency, inefficiency, or inattention of counsel—behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer,” and counsel's conduct “likely deprived the defendant of an otherwise available, substantial ground of defence.” Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974).

Typically, we turn to the merits of the defendant's claim to determine whether the Saferian test is implicated. See, e.g., Commonwealth v. Butler, 464 Mass. 706, 709, 985 N.E.2d 377 (2013); Commonwealth v. Cardenuto, 406 Mass. 450, 454, 456, 548 N.E.2d 864 (1990). Here, as we discuss infra, trial counsel brought a meritoriousrule 36 motion claiming that the speedy trial clock had run. However, trial counsel unreasonably relinquished this claim first by apparently withdrawing the motion, second by failing to attempt to correct the record to the extent it was not her intention to...

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