Opinion
20-P-872
01-04-2022
COMMONWEALTH v. John E. CASSIDY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant was convicted of four counts of unlawful possession of a large capacity feeding device, in violation of G. L. c. 269, § 10 (m ), one count of unlawful possession of a large capacity firearm, in violation of G. L. c. 269, § 10 (m ), one count of unlawful possession of an assault weapon, in violation of G. L. c. 140, § 131M, and one count of unlawful possession of ammunition, in violation of G. L. c. 269, § 10 (h ) (1). His convictions were affirmed by this court in a decision issued pursuant to our former Rule 1:28, see Commonwealth v. Cassidy, 91 Mass. App. Ct. 1109 (2017). The Supreme Judicial Court granted further appellate review and ultimately affirmed his convictions. See Commonwealth v. Cassidy, 479 Mass. 527 (2018). The defendant filed a petition for writ of certiorari in the United States Supreme Court which was denied on October 5, 2018. See Cassidy v. Massachusetts, 139 S. Ct. 276 (2018). He subsequently filed a motion in the Superior Court entitled "pro se defendant's motion for clarification and ruling." It was somewhat difficult to follow. It purported to seek clarification about how certain firearms laws worked, or could be complied with, but at the end it also asked for the motion judge to "overturn his convictions as a law that cannot be complied with." The judge denied the motion and the defendant has now appealed pro se.
To the extent the defendant merely seeks clarification about the operation of the law, that is, relief in the nature of a declaratory judgment, a postjudgment motion in his criminal case is obviously not the proper procedural avenue for seeking it. However, to the extent the defendant seeks relief from judgment, we will treat his motion as one for a new trial. We begin by noting that to the extent the defendant seeks to relitigate claims decided by the Supreme Judicial Court in his direct appeal he is directly estopped from doing so. See Commonwealth v. Arias, 488 Mass. 1004 (2021). Further, we are without power to reverse or modify a decision of the Supreme Judicial Court, something that the defendant acknowledges. To the extent the defendant seeks such relief he must seek it directly from the Supreme Judicial Court, and we express no opinion on the proper procedural avenue for doing so, although of course the defendant is free to seek further appellate review of this decision from that court.
To some extent, the defendant appears to complain that some different approach to licensure for those who have brought into the Commonwealth firearms lawfully purchased and possessed in other states was articulated by the court subsequent to the Supreme Judicial Court's decision in his case, in the case of Commonwealth v. Harris, 481 Mass. 767 (2019). To the extent the defendant argues that the Supreme Judicial Court has modified the law in Harris or has employed an approach in that case under which the outcome in his case would have been different, we are without authority to modify its decision in its final judgment in his direct appeal.
Beyond that, much of the defendant's argument appears to focus on the fact that he had a Texas license for his large capacity firearms and feeding devices. These arguments appear to turn on G. L. c. 140, § 129C (u ), which allows some nonresidents who have a license in another state to be exempt from certain Massachusetts licensing requirements "provided ... that the licensing requirements of such nonresident's state of residence are as stringent as the requirements of the commonwealth for a firearm identification card ..." But, as the Supreme Judicial Court made clear in his direct appeal, this provision is not applicable to large capacity weapons and feeding devices and therefore, whatever the stringency of the licensing requirements in Texas, § 129C (u ) is irrelevant to the defendant's case. See Cassidy, 479 Mass. at 532-533 & n.7.
The defendant argues that it is impossible for an out of state resident to comply with Massachusetts law when bringing firearms that are lawfully purchased and owned in another state into the Commonwealth. It is not clear if this is intended as a claim that the statutes under which he was convicted or his conviction itself violates due process, but in any event, if he is referring to the licensure statutes for firearms, feeding devices, and ammunition that may permissibly be owned in Massachusetts, he is obviously incorrect. After complying with the licensing requirements set out in those statutes, a new resident may bring such firearms, feeding devices and ammunition into the state and may possess them lawfully. To the extent his complaint is about items that are simply unlawful to possess within the Commonwealth, or for which one or another new resident cannot for whatever reason comply with the licensure requirements, he may be correct, but in the absence of any constitutional limitation -- and the Supreme Judicial Court found that in his case none was implicated -- the fact that one may not bring into one state something that may not lawfully be possessed there, even though it may be lawfully be possessed in some other state, is an unremarkable feature of our Federal system.
The defendant also argues that there is an unlawful delegation of discretion in the statutory scheme. To the extent that the defendant argues that certain defenses available to him under G. L. c. 269, § 10 (a ) are not available to him under § 10 (m ), which relates to large capacity firearms and ammunition, the legislature was free to make that choice. Contrary to the suggestion in the defendant's brief, the statute does not convey discretion on any state official to allow those defenses with respect to the weaponry described in § 10 (m ). Although prosecutors of course have broad discretion in deciding what crimes to prosecute, they have no authority under the statute to charge persons who have violated § 10 (m ), on the basis of some preference or judgment about some such defendants, only with crimes under § 10 (a ) as a means to provide them with its defenses. Nor is there any evidence in the record that any prosecutor has ever done so. Beyond that, the defendant's claims about discretion in the system for firearms licensure, as well as all the other claims contained in his brief before us to the extent we understand its arguments, were ruled upon in the Supreme Judicial Court's opinion in his direct appeal.
The order of the motion judge entered July 29, 2019, denying the defendant's motion for clarification is affirmed.
So ordered.
Affirmed.