Commonwealth v. Lopez

• Decision Date: 08 October 1999
• Citation: 430 Mass. 244,717 NE 2d 254
• Parties: COMMONWEALTH v. DOMINGO LOPEZ.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

430 Mass. 244

717 NE 2d 254

COMMONWEALTH v. DOMINGO LOPEZ.

Supreme Judicial Court of Massachusetts, Hampden.

September 13, 1999.

October 8, 1999.

Present: ABRAMS, LYNCH, GREANEY, MARSHALL, & IRELAND, JJ.

Thomas H. Townsend, Assistant District Attorney (Jane Davidson Montori, Assistant District Attorney, with him) for the Commonwealth.

John M. Thompson (Joseph M. Kenneally with him) for the defendant.

Michael J. Traft, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief.

GREANEY, J.

We review in this case an order of the Appeals Court that denied an award of attorney's fees and costs. The attorney's fees and costs were sought by the defendant's attorney pursuant to Mass. R. Crim. P. 15 (d), as appearing in 422 Mass. 1501 (1996), in connection with an interlocutory appeal by the Commonwealth from an order of a Superior Court judge allowing the defendant's motion to suppress. We vacate the order of the Appeals Court and remand the case to that court for a determination of the reasonable amount of the attorney's fees and costs and the entry of an order for their payment.

The background of the dispute is as follows. The defendant was charged in the Superior Court with trafficking in cocaine in violation of G. L. c. 94C, § 32E (b). He filed a motion to suppress evidence seized as a result of the stop and search of the motor vehicle in which he was traveling. The judge held an evidentiary hearing and, in a written decision, allowed the motion to suppress. A single justice of this court granted the Commonwealth leave to pursue an interlocutory appeal to the Appeals Court from the order granting suppression. See Mass. R. Crim. P. 15 (a) (2), as appearing in 422 Mass. 1501 (1996). After oral argument on the appeal, the Appeals Court entered an order remanding the case to the motion judge to make additional findings of fact. The judge made the requested findings. The Commonwealth concluded that the additional findings made its position on the appeal untenable and moved to dismiss the appeal "without costs." The Appeals Court allowed the Commonwealth's motion and dismissed the appeal "with prejudice and without costs to any party." The defendant's appellate counsel, who was privately retained by the defendant,¹ filed a motion under rule 15 (d) for the payment of reasonable attorney's fees and costs for his work in opposing the Commonwealth's interlocutory appeal. The Commonwealth filed a written opposition to the motion. The Appeals Court treated the rule 15 (d) motion as a motion to reconsider its initial order on attorney's fees and denied the motion "substantially for the reasons stated in the Commonwealth's opposition." We granted the defendant's application for further appellate review.

1. We reject the Commonwealth's argument that an order denying a defendant his attorney's fees and costs under rule 15 (d) cannot be appealed by the defendant. As we shall explain, rule 15 (d) requires such a payment. An order denying payment to a defendant of attorney's fees and costs (as distinguished from an order allowing payment) is a final order that deprives the defendant and his attorney completely of a payment required by the rule. Because rule 15 (d) is an integral part of rule 15, which concerns interlocutory appeals, it logically follows that an order denying a defendant his attorney's fees and costs after the decision on a rule 15 (a) application by the Commonwealth to appeal, or the appeal itself, is appealable.

2. Rule 15 (d) reads as follows: "(d) COSTS UPON APPEAL. If an appeal or application therefor is taken by the Commonwealth, the appellate court, upon the written motion of the defendant supported by affidavit, shall determine and approve the payment to the defendant of his or her costs of appeal together with reasonable attorney's fees to be paid on the order of the trial court upon the entry of the rescript or the denial of the application" (emphasis added). The Reporters' Notes state that "this subdivision was drafted to dispel any uncertainty concerning the defendant's right to reimbursement of his or her costs of appeal and attorney's fees. The appellate court is to determine the amount to be paid to the defendant, which payment is to be received from the Commonwealth." Reporters' Notes to Mass. R. Crim. P. 15 (d), Mass. Ann. Laws, Rules of Criminal Procedure at 182 (Lexis 1997). In Commonwealth v. Murphy, 423 Mass. 1010, 1011 (1996), we held that the prosecution bears the costs of an interlocutory appeal under rule 15, "and the fees mandated by rule 15 (d) are one of those costs." See K.B. Smith, Criminal Practice and Procedure § 1490 (2d ed. 1983 & Supp. 1999). The rule and the governing law establish that payment of the defendant's attorney's fees and costs is mandatory, and, as a consequence, there is no basis to support any of the Commonwealth's arguments that the payment lies within the discretion of the appellate...