Opinion
20-P-582
06-15-2020
COMMONWEALTH v. BRIAN HOWELL.
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
The defendant currently is serving a sentence at the Massachusetts Correctional Institution at Shirley for various convictions. According to him, that sentence is due to expire in mid-August of this year. Pursuant to Mass. R. Crim. P. 30 (a), as appearing in 435 Mass. 1501 (2001), the defendant filed what he styled a "motion for release from unlawful restraint." That motion sought the defendant's early release from his sentence because of the risks posed to him by the COVID-19 pandemic while he is incarcerated. According to his motion and accompanying papers, he is at particular risk based on his suffering from chronic respiratory ailments. Before us now is the defendant's expedited appeal from the order denying that motion. We affirm.
In 2017, after the defendant pleaded guilty, he was sentenced to eighteen months of incarceration, deemed served, and a four-year term of probation. After he was found in violation of his probation, he was sentenced to four years to four years and one day in State prison, with credit for 887 days served.
The Supreme Judicial Court has made it clear that judges have limited authority to release inmates serving custodial sentences due to the threats posed by COVID-19. See Committee for Pub. Counsel Servs. v. Chief Justice of the Trial Court, 484 Mass. 431, 450 (2020). A motion seeking such relief properly lies only where "a defendant (1) has moved under Mass. R. Crim. P. 29, [as appearing in 474 Mass. 1503 (2016),] within sixty days after imposition of sentence or the issuance of a decision on all pending appeals, to revise or revoke his or her sentence, (2) has appealed the conviction or sentence and the appeal remains pending, or (3) has moved for a new trial under Mass. R. Crim. P. 30." Committee for Pub. Counsel Servs., supra. None of those circumstances apply here.
Instead, the defendant is arguing that relief is necessary and appropriate because his continued detention under the present circumstances amounts to a violation of the Federal and State Constitutions (such as the prohibition on cruel and unusual punishment in the Eighth Amendment to the Unites States Constitution). He correctly points out that, were an inmate to prove that the conditions of an inmate's confinement amounted to a constitutional violation, a judge presumably could remedy that violation. The question remains, however, what the proper vehicle would be to assert such a claim.
The defendant contends that, in a trio of recent cases involving juvenile sentences, the Supreme Judicial Court has recognized motions brought pursuant to rule 30 (a) as a proper vehicle to challenge sentences as cruel and unusual. See Commonwealth v. Lutskov, 480 Mass. 575, 579, 581-585 (2018); Commonwealth v. Perez, 477 Mass. 677, 681-687 (2017); Commonwealth v. Costa, 472 Mass. 139, 144 (2015). However, in each of those cases, it was the sentence itself that was being challenged as unconstitutional. In the case before us, the defendant is not challenging his sentence. Rather, he is making a claim that the fact-specific conditions of his confinement on a valid sentence render that confinement unconstitutional. As the Supreme Judicial Court has recognized, the proper vehicle for such a claim is an original action of the sort raised in Foster v. Commissioner of Correction (No. 1), 484 Mass. 698 (2020) (class action brought on behalf of vulnerable prisoners and confined persons facing heightened risks from COVID-19 pandemic). See Committee for Pub. Counsel Servs. v. Chief Justice of the Trial Court (No. 2), 484 Mass. 1029, 1032 (2020) (pendency of Foster case does not provide procedural toehold for petitioners to press postconviction motion to stay sentence based on COVID-19 pandemic). See also id. at 1029 n.4 (referring to Foster procedure as "the proper vehicle by which to seek injunctive relief").
On June 2, 2020, the court affirmed the order denying a preliminary injunction in that case after concluding that the plaintiffs had not currently shown a substantial likelihood of success on the merits. Foster, 484 Mass. at 719-724.
In sum, the defendant has not shown that the judge abused his discretion in denying his rule 30 (a) motion, which was not a proper vehicle for asserting his claims.
Order denying motion for relief from unlawful restraint affirmed.
By the Court (Vuono, Milkey & Desmond, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: June 15, 2020.