Opinion
11-P-1010
03-27-2012
COMMONWEALTH v. DIEGO BASTIDAS.
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
A surety who posted $20,000 cash bail for the defendant appeals from the denial by a judge of the District Court of his third motion to vacate the forfeiture of the bail and obtain its return. Passing the issues of timeliness, estoppel, and sovereign immunity argued by the Commonwealth in its brief, but apparently not raised below, we affirm on the ground that no error has been demonstrated on the incomplete record before us.
The surety, Carlos A. Ramirez, is the appellant.
Background. The surety's motions to obtain return of the bail were heard and decided by the same judge over a five-year period. The judge first ordered bail to be forfeited on September 26, 2006. On October 5, 2006, the judge denied the surety's motion to reconsider the forfeiture order, and, upon the surety's request for reconsideration of that denial, on October 26, 2006, reaffirmed his decision. The judge denied another motion by the surety for return of bail on March 27, 2008. The surety then sought appellate review of that order by means of a petition pursuant to G. L. c. 211, § 3. A single justice of the Supreme Judicial Court reserved and reported the matter to the full bench; however, the surety took no steps to perfect the appeal, and the matter was dismissed without prejudice on December 4, 2007.
On July 7, 2010, the surety filed the motion at issue here. The judge denied the motion on November 16, 2010, giving his reasons in a marginal order. The judge observed that this was the third time that the same motion had been presented to him, and stated further that '[t]he basic facts have not changed. The surety posted the bail knowing the defendant was subject to deportation and knowing that defendant would be taken into [Immigration and Naturalization Service] or [Immigration and Customs Enforcement] custody immediately after posting the bail. That in fact happened, and there is no showing of any effort by the [d]efendant or the surety to have the court or the Commonwealth seek to have him brought into court from federal custody until his inevitable deportation.' (Emphasis supplied.)
Discussion. In order to obtain the return of the forfeited bail, the surety was required to satisfy a two-pronged burden. See Commonwealth v. Bautista, 459 Mass. 306, 313-316 (2011). He was required to prove that the defendant's placement in Federal custody awaiting deportation proceedings was an act beyond the control of the defendant, himself. Id. at 313-314. He also was required to prove that the defendant's nonappearance was without the surety's fault. Id. at 316.
The judge's order makes clear that his denial of relief was based upon the surety's failure to prove the second prong. The judge specifically found that the facts had not changed over the course of the surety's efforts to obtain relief, and that they established that the surety was not without fault.
The surety argues that these findings are unsupported. However, the record required to assess this contention is inadequate. The only material provided to us consists of the documents and transcript relating to the surety's most recent motion. The record contains nothing relating to the earlier hearings at which the judge originally determined that the surety was not without fault. No transcripts of those hearings have been furnished, and the surety has not availed himself of any alternative method of reconstructing the evidentiary record.
Notably, the record contains no affidavit or testimony from the surety.
It is the burden of the appellant to furnish a record that supports his claims on appeal. Arch Med. Assocs., Inc. v. Bartlett Health Enterprises, Inc., 32 Mass. App. Ct. 404, 406 (1992). 'Without a record of the testimony or representations at the [relevant] hearing[s], we have no basis for concluding that the evidence did not support the judge's findings . . . .' Ibid.
It has been represented to us that the recordings of the hearings held in 2006 are no longer available, as they have been destroyed in the ordinary course. Having chosen not to appeal when the judge first decided this matter, this problem is one of the surety's own making. In any event, the unavailability of the recordings does not excuse the surety from fulfilling his duty as the appellant to present a record adequate for appellate review of the issues he presents.
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The order denying the surety's motion to reinstate and return bail is, accordingly, affirmed.
So ordered.
By the Court (Cohen, Brown & Fecteau, JJ.),