Opinion
No. 15–P–1673.
11-18-2016
COMMONWEALTH v. Eugene C. BERTINI.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is the defendant's consolidated appeal from orders denying his motions pursuant to Mass.R.Crim.P. 30(a), as appearing in 435 Mass. 1501 (2001), and Mass.R.A.P. 8(e), as amended, 378 Mass. 932 (1979). We affirm.
Background. On April 8, 1991, the defendant, who was born on June 7, 1973, and who was in the custody of the Department of Youth Services (DYS), was charged by complaint issued from District Court with operating under the influence of intoxicating liquor (OUI) in violation of G.L. c. 90, § 24(1)(a )(1). The defendant was appointed an attorney and subsequently admitted to sufficient facts to warrant a finding of guilty of OUI and responsible for two civil motor vehicle infractions. The defendant was sentenced to one year of probation and 180 days license suspension.
He also was charged with two civil infractions for failure to keep left and a marked lanes violation.
On November 20, 2014, twenty-three years later, the defendant filed in District Court a pro se motion to vacate his guilty plea and for a new trial. A judge denied the motion, and no appeal was taken. Represented by counsel, the defendant on June 5, 2015, filed a motion to vacate the guilty plea, pursuant to Mass.R.Crim.P. 30(a), on the grounds that prior to his arraignment in District Court he did not receive a transfer hearing pursuant to G.L. c. 119, § 61 (now repealed), as was in effect at that time. See St.1990, c. 267, § 3. The same judge denied the motion, and the defendant appealed. In January, 2016, the defendant, pursuant to Mass.R.App.P. 8(e), moved in District Court to "[c]orrect" the record in order to include certified copies of his DYS records. The same judge denied the motion, and the defendant again appealed. The defendant's appeals from those orders were consolidated by this court.
Discussion. " Rule 30(a) provides that a defendant may only seek relief from a sentence ‘which he is then serving.’ " Rodwell v. Commonwealth, 432 Mass. 1016, 1018 (2000). Here, there is no question that the defendant no longer is on probation for his 1991 conviction. Rule 30(a), therefore, does not apply, and the judge correctly denied the defendant's motion. Commonwealth v. Bergquist, 51 Mass.App.Ct. 53, 55 (2001).
Moreover, in 1991, insofar as is relevant here, the District Court had original jurisdiction over "all misdemeanors," "complaint of which shall be brought in the division of the district court department" wherein the offense allegedly occurred. G.L. c. 218, § 26, as amended by St.1978, c. 478, § 187. "[O]perating a motor vehicle while under the influence of liquor [was] a misdemeanor" at that time. Commonwealth v. Grise, 398 Mass. 247, 250 (1986). General Laws c. 119, § 61, had allowed the Commonwealth to "request a transfer hearing whenever it [was] alleged in a complaint that a child, who [was] fourteen years old or older, [had] committed an offense against a law of the commonwealth, which, if he were an adult, would be punishable by imprisonment in the state prison." Misdemeanors, however, are not punishable by imprisonment in State prison. See G.L. c. 274, § 1. Accordingly, the Commonwealth was not required to request a transfer hearing before proceeding against the defendant in District Court.
Additionally, G.L. c. 119, § 74, as appearing in St.1967, c. 787, was inapplicable to the defendant because he had turned seventeen well before he committed the offense at issue. For the same reason, the definition of "[d]elinquent child" in effect at that time, see G.L. c. 119, § 52, as amended through St.1960, c. 353, § 1, did not include the defendant. The defendant's DYS records having no impact on the pertinent facts, the judge did not abuse his discretion in denying the motion to correct the record.
Order denying motion to vacate guilty plea affirmed.
Order denying motion to correct record affirmed.