Commw. v. Lopez, 8012

• Decision Date: 08 October 1999
• Docket Number: 8012
• Citation: 430 Mass. 244
• Parties: SUPREME COURT OF THE STATE OF MASSACHUSETTSCOMMONWEALTH vs. DOMINGO LOPEZ. Hampden County
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

SUPREME COURT OF THE STATE OF MASSACHUSETTS

No. SJC-08012

COMMONWEALTH vs DOMINGO LOPEZ

Hampden County

October 8, 1999

Abrams, Lynch, Greaney, Marshall, & Ireland, JJ.

Controlled Substances. Practice, Criminal, Motion to suppress, Interlocutory appeal, Attorney's

fees

Indictment found and returned in the Superior Court Department on September 5, 1996.

A motion to suppress evidence was heard by Bertha D. Josephson, J.

After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further

appellate review.

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.

Argued September 13, 1999.

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 "[t]his 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 court. [2] See Commonwealth v. Cook,

426 Mass. 174, 180-181 (1997).

3. The Commonwealth has not disputed the reasonableness of the amount requested by the

defendant's attorney for fees and costs. The Commonwealth has concentrated on the main issue

pertaining to the meaning of rule 15 (d), rather than on the corollary issue of the payment that is

due, if its position on the main issue was rejected. In view of the fact that public funds are

involved, we believe that the Commonwealth should be granted the opportunity to indicate in

writing to the Appeals Court within thirty days of the issuance of the rescript whether it wishes to

challenge the amount of the attorney's fees and costs requested by the defendant. If there is such

a challenge, the Appeals Court is to conduct appropriate proceedings to determine the amount of

attorney's fees and costs due the defendant.

4. So much of the order of the Appeals Court dated February 12, 1999, which denies the

defendant his attorney's fees and costs, and the order dated February 25, 1999, affirming that

denial after reconsideration, are vacated. The case is remanded to the Appeals Court for further

proceedings consistent with this opinion to determine the reasonable attorney's fees and costs due

to the defendant under rule 15 (d), and for the entry of an appropriate order of payment. So

ordered.

(1) Defense counsel in the Superior Court was also privately retained.

(2) In its memorandum filed in the Appeals Court in opposition to the motion of the defendant's

counsel for attorney's fees and costs, the Commonwealth argued...