Opinion
18-P-1122
04-26-2019
COMMONWEALTH v. AARON M. FOX.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On appeal from an order denying his motion for new trial, the defendant contends that his conviction cannot stand because the statute underlying it is unconstitutional. We discern on the present record no basis for relief, and affirm.
On March 1, 2012, the defendant pleaded guilty to possession of a dangerous weapon, to wit a double edged knife. On February 28, 2017, the defendant filed a motion for new trial, together with a memorandum of law but without an affidavit or other supporting evidence. The motion was denied without a hearing.
At the heart of the defendant's claim is his contention that he was entitled, under the Second Amendment to the United States Constitution, to possess the knife on which his conviction was based. Citing District of Columbia v. Heller, 554 U.S. 570 (2008), the defendant contends that he was entitled to possess the knife so long as he was not using it for an illegal purpose, and so long as it was of a type "typically possessed by law-abiding citizens for lawful purposes." Id. at 625.
The defendant has not provided a sufficient evidentiary basis for us to consider his constitutional claim. The present record offers only the barest description of the knife itself, and no information about its common use or whether it is typically found, or conversely is unusual to find, in the possession of law-abiding citizens for lawful purposes. There accordingly was no error or abuse of discretion by the motion judge in the denial of the defendant's motion for new trial. We affirm the order denying the defendant's motion.
So ordered.
By the Court (Green, C.J., Neyman & Henry, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: April 26, 2019.