Commonwealth v. Nash
| Decision Date | 14 December 2020 |
| Docket Number | SJC-12976,SJC-12990 |
| Citation | 159 N.E.3d 91,486 Mass. 394 |
| Parties | COMMONWEALTH v. Daniel A. NASH. Commonwealth v. Joseph Elibert. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Rosemary Curran Scapicchio, Boston, for Daniel A. Nash.
David Rassoul Rangaviz, Committee for Public Counsel Services, for Joseph Elibert.
Jennifer L. Sprague & Erin D. Knight, Assistant District Attorneys, for the Commonwealth.
Present: Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.1
We have before us two cases in which the defendants have sought stays of execution of their sentences pending appeal. In Daniel Nash's case, the trial judge granted a stay, which a single justice of the Appeals Court, on the Commonwealth's request, then vacated. In Joseph Elibert's case, the trial judge granted a stay but later revoked it on his own initiative, and a single justice of the Appeals Court upheld the latter order. In each case, the defendant appealed to a panel of the Appeals Court from the single justice's ruling.
We transferred the cases here so that we could address a variety of issues concerning stays of sentences pending appeal, including, among others, the important and recurring question of how judges who are faced with requests for stays ought to weigh the COVID-19 pandemic as a factor in determining whether a stay is appropriate in any given case. Recently, in Christie v. Commonwealth, 484 Mass. 397, 401-402, 142 N.E.3d 55 (2020), we held that the pandemic is a factor for judges to consider when ruling on requests for stays. In the cases now before us, we provide additional guidance as to how, specifically, that factor ought to be taken into account.
Background. We set forth the basic facts and the procedural background of each case, reserving additional details for the discussion section of the opinion.
1. Nash's case. Nash was convicted in December 2018 of two counts of rape ( G. L. c. 265, § 22 ) and one count each of indecent assault and battery on a person age fourteen or older ( G. L. c. 265, § 13H ) and secretly recording a person who is nude or partially nude ( G. L. c. 272, § 105 [b ]). The victim was his future sister-in-law. He raped her vaginally and anally while she was intoxicated and unconscious and recorded the events with the camera on his cellular telephone (cell phone). He was sentenced to two concurrent terms of from five to seven years in State prison for the rapes; a term of two and one-half years in a house of correction for the indecent assault and battery, to run from and after the sentences for the rapes, suspended for two years; and a three-year term of straight probation, with various conditions, for the illegal recording, to run from and after the sentences for the rapes.
Nash appealed to the Appeals Court from his convictions, and in April 2020, soon after we issued our decision in Christie, 484 Mass. 397, 142 N.E.3d 55, he moved for a stay of his sentences pending appeal. The trial judge issued a memorandum of decision analyzing all of the relevant factors, and he granted a stay. The Commonwealth sought review of that ruling by filing a petition in the county court pursuant to G. L. c. 211, § 3. The Commonwealth asserted in its petition that it had no other available appellate remedy and, therefore, that a petition under § 3 was its only recourse. A single justice of this court disagreed and denied the petition, stating:
2
The Commonwealth then followed the single justice's lead by filing a motion in the Appeals Court, where Nash's direct appeal was pending, asking the Appeals Court to vacate the stay of the sentence that the trial judge had granted.3 A single justice of the Appeals Court allowed the Commonwealth's motion, Nash appealed from that ruling to a panel of the Appeals Court, and we allowed Nash's application for direct appellate review.4
2. Elibert's case. Elibert was convicted in January 2020 of two counts of indecent assault and battery on a person under the age of fourteen ( G. L. c. 265, § 13B ).5 The victim was the twelve year old grandchild of Elibert's then girlfriend, with whom Elibert lived. He was sentenced to a term of from four to six years in State prison for the first conviction and a consecutive term of five years' probation, with various conditions, for the second conviction.
Elibert appealed to the Appeals Court from his convictions and immediately moved, in the Superior Court, for a stay of his sentences pending appeal. The trial judge initially denied the request for a stay. In April 2020, shortly after we issued our decision in Christie, 484 Mass. 397, 142 N.E.3d 55, Elibert sought reconsideration of the denial of the stay, citing as a new factor the emergence of the COVID-19 pandemic and its potential effect on him. The trial judge, on reconsideration, granted a stay. The stay proved to be short lived, however, as the judge revoked it on his own initiative on June 30, 2020.
Elibert next filed a motion in the Appeals Court pursuant to Mass. R. A. P. 6, as appearing in 481 Mass. 1608 (2019), entitled "motion to stay sentence pending appeal," in which he stated that he was seeking "reinstatement" of the stay that had been revoked. The Appeals Court single justice denied his motion, Elibert appealed from that ruling to a panel of the Appeals Court, and we allowed his application for direct appellate review.
Discussion. We first address two threshold procedural issues concerning these cases: what appellate remedy is available to the Commonwealth when a trial judge grants a defendant's request for stay of execution of a sentence pending appeal; and what appellate remedy is available to a defendant when a judge revokes a stay that previously was granted. We then address the legal standards to be applied by trial judges, appellate court single justices, and appellate courts when considering stays in these circumstances. Finally, we turn to the rulings that are before us in each case.
1. Commonwealth's remedy when the trial judge grants a stay (Nash's case).6 Nash takes the position that the Appeals Court single justice had no authority to act on the Commonwealth's motion to vacate the stay that the trial judge granted in his case.7 He does not claim that the Commonwealth has no appellate recourse at all when a stay is granted; rather, he argues that the Commonwealth's only recourse is to petition a single justice of this court for relief pursuant to G. L. c. 211, § 3, even in those cases where, as here, the Appeals Court is the appellate court that will hear and decide the defendant's direct appeal. We disagree.
The Commonwealth did, of course, pursue exactly the route suggested by Nash when it initially petitioned for relief in the county court under G. L. c. 211, § 3. Its petition was denied, however, by a single justice of this court on the ground that the Commonwealth had an adequate alternative remedy and, therefore, that relief from this court pursuant to § 3 was not necessary. Significantly, the single justice identified as the Commonwealth's proper remedy precisely the course that Nash now claims was improper, namely, a motion in the Appeals Court to vacate the stay. We agree with our single justice that the Commonwealth was not entitled to review under § 3 and instead could have, and should have, sought relief in the Appeals Court, as it eventually did. Some clarification is in order, however.
The single justice relied in part on the 2009 Reporters' Notes to Mass. R. Crim. P. 31, as appearing in 454 Mass. 1501 (2009), which state in relevant part:
Reporters' Notes (2009) to Rule 31, Mass. Ann. Laws Court Rules, Rules of Criminal Procedure (LexisNexis 2019). Similar language also appears in the 2009 Reporters' Notes to Mass. R. A. P. 6. See Reporters' Notes (2009) to Rule 6, Mass. Ann. Laws Court Rules, Rules of Appellate Procedure (LexisNexis 2019). Contrary to the two Reporters' Notes, however, neither rule 31 nor rule 6 prescribes a course for the Commonwealth to follow when a stay is granted in the trial court. Those rules set forth the procedure by which a defendant seeks a stay, the terms and conditions on which stays may be granted, the defendant's recourse when the trial judge denies a stay, the parties' remedies when a single justice of an appellate court grants or denies a stay, and the expiration of stays that have been granted. The rules are wholly silent as to what the Commonwealth should, or may, do to obtain appellate review of a trial judge's granting of a stay.8
Although neither rule 31 nor rule 6 expressly governs this situation, the source of the Commonwealth's authority to obtain review of a trial judge's granting of a stay, and the source of an appellate court's authority to provide such review in these circumstances, is Mass. R. A. P. 15, as appearing in 481 Mass. 1627 (2019). That is the all-purpose rule governing motions in pending appeals. It allows parties in pending or impending appeals to request interim relief from the appellate court on a broad range of matters related to the case. It is broad enough to encompass a motion by the...
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