Opinion
20-P-751
08-05-2020
COMMONWEALTH v. MELVIN JACKSON.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
The defendant is currently serving a sentence at the Massachusetts Correctional Institution at Concord (MCI Concord) for a possession of illegal firearms conviction. Pursuant to Mass. R. Crim. P. 30 (a), as appearing in 435 Mass. 1501 (2001), the defendant filed what he styled an "emergency COVID-19 motion" to "correct illegal sentence." The defendant claims he is at particular risk based on his medical ailments and MCI Concord's inadequate response to the pandemic. Before us now is the defendant's expedited appeal from the order denying that motion. We affirm.
The defendant is scheduled to complete the committed portion of his sentence in September, 2020.
The Supreme Judicial Court has emphasized our 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 (No. 1), 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. (No. 1), supra. None of these circumstances apply here.
Rather, the defendant makes his challenge through Mass. R. Crim. P. 30 (a), claiming that the present circumstances of his confinement violate the prohibition against cruel and unusual punishment under art. 26 of the Massachusetts Constitution and the Eighth Amendment to the United States Constitution. The defendant claims that rule 30 (a) is the proper vehicle for his claim, as the pandemic constitutes a changed circumstance that the sentencing judge "could not have known" at the time of his sentencing. Commonwealth v. Costa, 472 Mass. 139, 144 (2015). However, in Costa, the sentence itself was challenged as unconstitutional. Id. at 143. Here, the defendant claims that the fact-specific conditions of his confinement based on a valid sentence render that confinement unconstitutional. As the Supreme Judicial Court has recognized, the proper vehicle for such a claim is an 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 seeking preliminary injunction due to COVID-19). See Committee for Pub. Counsel Servs. v. Chief Justice of the Trial Court (No. 2), 484 Mass. 1029, 1031 n.4 (2020). "Granting a stay without such a challenge [i.e., challenging the validity of the sentence when it was imposed,] essentially amounts to granting a furlough, which lies within the purview of the executive branch." Id. at 1032. Accordingly, the judge did not abuse her discretion in denying the defendant's rule 30 (a) motion, which was not a proper vehicle for asserting his claims.
Rule 30 (a) permits "Any person who is imprisoned . . . pursuant to a criminal conviction [to] file a written motion requesting the trial judge to release him or her or to correct the sentence then being served upon the ground that the confinement or restraint was imposed in violation of the Constitution or laws of the United States or of the Commonwealth of Massachusetts." Mass. R. Crim. P. 30 (a).
He also claims violation of the Fourteenth Amendment to the United States Constitution.
In Foster (No. 1), 484 Mass. at 724, the Supreme Judicial Court affirmed the order denying a preliminary injunction after concluding that the plaintiffs, who brought forth a similar claim as the defendant here, would unlikely be able to "establish deliberate indifference on the part of the [Department of Correction]" to prevail on their Eighth Amendment claims.
Even if we were to entertain the defendant's claim on the merits, the defendant is not entitled to relief under Christie v. Commonwealth, 484 Mass. 397, 401-402 (2020). Based on the record before us, we cannot say that the defendant's release would not pose a risk to the public or that his medical ailments or MCI Concord's precautions render him at higher risk while incarcerated. See id. at 401 ("a judge deciding whether to grant a stay should consider not only the risk to others if the defendant were to be released . . . , but also the health risk to the defendant if the defendant were to remain in custody").
Order denying emergency motion to correct illegal sentence affirmed.
By the Court (Vuono, Meade & Wolohojian, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: August 5, 2020.