Opinion
No. 11–P–1896.
2012-09-26
COMMONWEALTH v. Kerr CARRINGTON.
By the Court (GRASSO, KANTROWITZ & GRAHAM, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Kerr Carrington, was convicted of thirteen counts of larceny, thirteen counts of uttering, and nine counts of attempted larceny. He argues that because the trial transcripts were not delivered within the 120–day time frame as required by Administrative Order 09–2, he failed to obtain “right and justice” as required by art. 11 of the Massachusetts Declaration of Rights and, as such, his posttrial motion to dismiss should have been allowed. We affirm.
Background. The defendant ordered transcripts of the trial on May 5, 2011. Accordingly, the Suffolk County Superior Court Department criminal clerk ordered the transcripts on May 24, 2011. One hundred and twenty-five days later the defendant filed a motion to vacate his convictions and to dismiss the charges based on the delay.
Discussion. “For due process rights to be implicated as a result of a delay in the appellate process, the defendant must demonstrate that the Commonwealth deliberately blocked his appellate rights or that he was significantly prejudiced by the delay.” Commonwealth v. Fisher, 54 Mass.App.Ct. 41, 47 (2002). Here, the defendant has not affirmatively satisfied either of these criteria. First, he has not presented any evidence that the district attorney's office intentionally or deliberately delayed the production of the transcripts. Second, the defendant has not demonstrated that he suffered any prejudice. See Commonwealth v. Santos, 41 Mass.App.Ct. 621, 628 (1996). Indeed, it appears that he already is serving a separate prison sentence. Even if this were not so, the defendant, notwithstanding his argument to the contrary, has not demonstrated any prejudice.
For these reasons, as well as for substantially those in the brief of the Commonwealth, we affirm.
Order denying posttrial motion to dismiss affirmed.