Opinion
12-P-569
08-07-2015
COMMONWEALTH v. MESSIAH A. FRANKLIN.
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 April 21, 2015, a panel of this court issued a summary decision pursuant to our rule 1:28 in which we affirmed the defendant's convictions of carrying a firearm without a license (count I) and carrying a loaded firearm (count III). We vacated his conviction of possession of ammunition without an FID card (count II) as duplicative, and affirmed the denial of the defendant's motion for new trial.
Subsequently, the defendant moved for reconsideration. We allowed the motion, and directed the parties to brief three questions not previously argued on appeal, including whether the motion for new trial should have been allowed pursuant to Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2011), on the basis that justice had not been done. "The Appeals Court has authority to consider an issue apparent on the record of a criminal case that is not properly preserved for appellate review and is not argued to it in any party's appellate brief. At least, it may consider whether the record shows a substantial risk of a miscarriage of justice." Commonwealth v. Simpson, 428 Mass. 646, 648-649 (1999). See Commonwealth v. Cullity, 470 Mass. 1022, 1022 n.2 (2015) (concerning opportunity for supplemental briefing).
At the time the motion for reconsideration was filed, Justice Graham, an original member of the panel, had retired, and Justice Rubin was added to the panel.
The gravamen of the defendant's argument on his motion for new trial was that the firearm in question was an "antique," and that counsel was ineffective for failing to assert this defense at trial. Under the law at the time of trial the defense of an exemption from G. L. c. 269, § 10(a), for antique firearms was not viable. See Commonwealth v. Bibby, 54 Mass. App. Ct. 158, 163-164 (2002). The judge ruled, correctly, that counsel was not ineffective for failing to raise a defense foreclosed by then-existing case law. See Commonwealth v. Clarke, 460 Mass. 30, 38 (2011) (assessing the reasonableness of counsel's decisions when made).
After trial, the Supreme Judicial Court held that antique firearms are exempt from the provisions of § 10(a). Commonwealth v. Jefferson, 461 Mass. 821, 830 (2012). "Where a decision does not announce new common-law rules or rights but rather construes a statute, no analysis of retroactive or prospective effect is required because at issue is the meaning of the statute since its enactment." McIntire, petitioner, 458 Mass. 257, 261 (2010). See Eaton v. Federal Natl. Mort. Assn., 462 Mass. 569, 587 (2012) ("In general, when we construe a statute, we do not engage in an analysis whether that interpretation is given retroactive or prospective effect; the interpretation we give the statute usually reflects the court's view of its meaning since the statute's enactment"). Accordingly, Jefferson applies. The defendant presented evidence at the hearing on the motion for new trial that the firearm was made before 1900, thus fitting within the exemption. The evidence was not disputed at the hearing. Because the motion before him dealt only with the ineffective assistance claim, however, the judge did not make findings and rulings regarding the age of the firearm.
If credited, the evidence regarding the age of the firearm would, after Jefferson, demonstrate a substantial risk of a miscarriage of justice in the defendant's convictions of the crimes at issue in counts I and III. Cf. Commonwealth v. Hinds, 437 Mass. 54, 63 (2002), cert. denied, 537 U.S. 1205 (2003) ("findings based on legally insufficient evidence are inherently serious enough to create a substantial risk of a miscarriage of justice"). Conviction of a crime under § 10(a) based on conduct that does not violate the statute would constitute a substantial risk of a miscarriage of justice, ibid., and would warrant relief under rule 30(b).
The first rule 1:28 decision in this matter was vacated by order of this court on July 21, 2015.
Conclusion. The order denying the motion for new trial is vacated, and the matter is remanded for findings and rulings on the question whether the defendant has made a sufficient showing that the firearm is an antique so as to warrant relief under rule 30(b) in the interest of justice. The direct appeal is stayed pending resolution of the motion for new trial.
If the convictions on counts I and III are vacated, the conviction on count II is no longer duplicative.
So ordered.
By the Court (Rubin, Brown & Sullivan, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: August 7, 2015.