Opinion
12-P-801
11-24-2014
COMMONWEALTH v. FRANKLIN HERNANDEZ.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Commonwealth appeals from an order dismissing a criminal complaint against the defendant, Franklin Hernandez. We vacate the order.
Background. On April 15, 2005, the defendant was arrested for assault and battery in violation of G. L. c. 265, § 13A(a). The criminal complaint alleged that the defendant and the victim were in a car arguing when the defendant slapped and punched the victim. There was an independent witness to the alleged offense. Although the matter was returnable on April 19, 2005, the defendant did not appear and a warrant issued.
Between 2005 and 2011, the defendant served two committed sentences under a different name. In May of 2011, the defendant was brought to the Roxbury Division of the Boston Municipal Court Department on the default warrant. Counsel was assigned and the defendant was arraigned. The victim, who was present, was by that time the defendant's wife. The judge asked the prosecutor for information regarding the case, and the prosecutor asked to speak privately with the victim. The judge agreed to recall the case.
The case was recalled while the prosecutor's colleague was still speaking with the victim. The following exchange occurred:
Judge: "All right. This is a 2005 case. This gentleman has done two committed sentences since that time, and this case hasn't been taken care of. I'm dismissing this, over the objection of the Commonwealth."
Prosecutor: "Your Honor, can will the there was, if my memory serves me, there was an independent witness in the police report, so I'm not sure, despite whatever --"
Judge: "It's a 2005 case. Appeal me. I'm dismissing this case. He's done two committed sentences during the time of this -- from 2005 to now. Okay. And we have a wife here that is saying she doesn't even want to go forward. I'm not going to waste the Commonwealth's time or this court's time and money."
Discussion. "Article 30 [of the Massachusetts Declaration of Rights] provides for a separation of powers among the branches of government, essentially giving the prosecutor broad discretion in deciding whether to prosecute a case." Commonwealth v. Pyles, 423 Mass. 717, 719 (1996). See Manning v. Municipal Ct. of the Roxbury Dist., 372 Mass. 315, 318 (1977) ("A district attorney has wide discretion in determining whether to prosecute an individual, just as he has wide discretion in determining whether to discontinue a prosecution once commenced"). "A decision to enter a nolle prosequi on a criminal charge rests with the executive branch of government," Pyles, supra at 720, and pretrial dismissal of a valid complaint "without an evidentiary hearing basically quashes or enters a nolle prosequi of the complaint," Commonwealth v. Pellegrini, 414 Mass. 402, 404 (1993). Accordingly, "the judiciary does not have the power to dismiss an otherwise legally adequate complaint or indictment prior to verdict, finding, or plea, over the objection of the prosecutor." Commonwealth v. Manning, 75 Mass. App. Ct. 829, 831-832 (2009), and cases cited. See Pyles, supra at 719-720.
There is no challenge to the sufficiency of the criminal complaint in this case. The judge dismissed the complaint without the defendant having so moved, and the Commonwealth objected. "The Commonwealth, acting through its respective district attorneys, has a substantial interest in prosecuting the commission of crimes," Commonwealth v. DiBennadetto, 436 Mass. 310, 312 (2002), and art. 30 "does not 'permit judges to substitute their judgment as to whom and what crimes to prosecute.'" Manning, 75 Mass. App. Ct. at 832, quoting from Commonwealth v. Cheney, 440 Mass. 568, 575 (2003). Here, the "judge's action intrude[d] on the executive branch's authority to decide what crimes to prosecute," id. at 833, and the complaint must be reinstated.
The defendant, hoping to avoid this result, argues that he was deprived of a speedy trial as required by Mass.R.Crim.P. 36, 378 Mass. 909 (1979). Because of the judge's preemptive dismissal, the defendant did not have the opportunity to file a speedy trial motion. Therefore, this issue is not properly before us. Notwithstanding this procedural defect, we note that a reviewing court analyzing such a claim looks at four factors: (1) the length of delay; (2) the reason for the delay; (3) the defendant's assertion of his right to a speedy trial; and (4) prejudice to the defendant. Commonwealth v. Carr, 464 Mass. 855, 861 (2013). The only factor that could support the defendant's claim in this case is the length of the delay. When we take into account the reason for the delay (the defendant's default), we are not persuaded that this factor inures to his benefit.
The order dismissing the complaint charging assault and battery is vacated.
So ordered.
By the Court (Grainger, Carhart & Sullivan, JJ.),
Panel members appear in order of seniority.
Clerk Entered: November 24, 2014.