Opinion
19-P-1717
11-05-2020
COMMONWEALTH v. Ricky L. BETHUNE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a consolidated jury trial in the Superior Court, the defendant, Ricky L. Bethune, was convicted of twelve counts of violating an abuse prevention order and one count of intimidation of a witness. He filed a timely notice of appeal. Thereafter, the defendant filed two motions -- a motion to correct clerical mistakes, and a motion to correct illegal sentence. The motions were denied. This consolidated appeal followed. We affirm.
The motions. The thrust of the defendant's argument is that the Superior Court lacked jurisdiction over the indictments, and that he was illegally sentenced on dismissed and non-indicted offenses. Following the defendant's indictments in the Superior Court, the Commonwealth filed a nolle prosequi on the District Court complaints. This was the proper procedure as "[i]t has long been the rule in the Commonwealth that the pendency of a criminal matter in a District Court does not preclude a prosecutor from seeking an indictment for the same offense. Commonwealth v. Raposa, 386 Mass. 666, 668 (1982). Indeed, it is permissible for "a prosecutor to seek indictments [in Superior Court] while identical charges are pending in the District Court and then to nol pros the case in a District Court." Commonwealth v. Burt, 393 Mass. 703, 706 (1985). See Raposa, supra. That is precisely what occurred here. There was no error.
Direct appeal. Although we liberally construe the defendant's pro se brief, he is "held to the same standards as practicing members of the bar." Commonwealth v. Jackson, 419 Mass. 716, 719 (1995). Here, he filed a timely notice of appeal of his convictions, but failed to make any coherent argument regarding the direct appeal in his appellate brief. Accordingly, this claim is waived. See Commonwealth v. Graziano, 96 Mass. App. Ct. 601, 607 n.10 (2019) (argument not made in defendant's appellate brief is waived).
Even if the claim was not waived, it lacks merit. The Superior Court had jurisdiction to hear the case. See discussion on the motions, supra. Moreover, the defendant's unsupported assertions that the prosecutor presented false testimony to the jury, made false statements, and perpetrated a fraud upon the court are not supported by the record. And, the allegations that the judge allowed or participated in these events is likewise belied by the record. There was no error, let alone a substantial risk of a miscarriage of justice. See Commonwealth v. Russell, 439 Mass. 340, 345 (2003) (waived claim reviewed to determine whether any error creates substantial risk of miscarriage of justice).
The defendant makes additional claims and contentions interspersed throughout his submissions. We have examined all of his points and arguments. That we have not discussed those means simply that "[w]e find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
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Judgments affirmed.
Order denying motions to correct clerical mistakes and illegal sentence affirmed.