Opinion
14-P-199
04-20-2016
COMMONWEALTH v. ERIC JOHNSON.
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 Commonwealth appeals from an order issued over its objection dismissing a legally valid criminal complaint that charged the defendant, Eric Johnson, with threatening to commit a crime, G. L. c. 275, § 2. The Commonwealth asserts, and we agree, that the judge lacked the authority to dismiss sua sponte the complaint in the interest of public justice. We recently addressed this precise procedural issue in Commonwealth v. Everett, 88 Mass. App. Ct. 902, 903-904 (2015), and reverse here for substantially the same reasons.
The Commonwealth filed a complaint charging the defendant with threatening a correction officer about fifteen months after the alleged incident occurred in January, 2012. On October 18, 2013, the defendant appeared for a pretrial hearing and represented himself. At that hearing, the Commonwealth represented that discovery was complete. The judge nevertheless determined that the Commonwealth "unreasonabl[y] delay[ed]" its prosecution of the defendant by bringing charges after the defendant had completed serving a sentence and, thereby, in the judge's estimation unfairly deprived the defendant of the opportunity of obtaining a concurrent sentence. The judge then dismissed the complaint sua sponte in the "interest of justice." The Commonwealth objected and this appeal followed.
Discussion. "[A] judge is not precluded from dismissing [a complaint] that [is] legally invalid." Commonwealth v. Cheney, 440 Mass. 568, 575 n.12 (2003). However, the dismissal here was not based upon a procedural defect in the complaint but in the interest of public justice. "[A]s concerns cases pending in the Juvenile Court, District Court, and Boston Municipal Court, a dismissal 'in the interests of public justice'" is not an available option, unless it is done "in compliance with the terms of G. L. c. 278, § 18" -- requiring the proffer of a guilty plea or an admission to sufficient facts with a request for a continuance without a finding. Commonwealth v. Cheney, supra at 571. These prerequisites were not met here.
General Laws c. 278, § 18, as appearing in St. 1992, c. 379, § 193, provides in pertinent part:
"A defendant who is before the Boston municipal court . . . on a criminal offense within the court's final jurisdiction shall plead not guilty or guilty, or with the consent of the court, nolo contendere. Such plea of guilty shall be submitted by the defendant and acted upon by the court; provided, however, that a defendant with whom the commonwealth cannot reach agreement for a recommended disposition shall be allowed to tender a plea of guilty together with a request for a specific disposition. Such request may include . . . that a guilty finding not be entered, but rather the case be continued without a finding to a specific date thereupon to be dismissed, such continuance conditioned upon compliance with specific terms and conditions or that the defendant be placed on probation pursuant to the provisions of section eighty-seven of chapter two hundred and seventy-six."
We also see no basis in the record that would warrant dismissing the complaint for unreasonable delay. The Commonwealth filed the complaint well before the statute of limitations had run, and discovery was completed by the pretrial hearing date. Furthermore, the Commonwealth explained the rationale behind the delay here -- the prosecutor indicated that the Commonwealth commonly delays the prosecution of incarcerated individuals to ensure the safety of potential witnesses. These circumstances do not present a situation where the "delay has been intentionally undertaken to gain a tactical advantage over the accused or has been incurred in reckless disregard of known risks to the putative defendant's ability to mount a defense." Commonwealth v. Imbruglia, 377 Mass. 682, 691 (1979).
Accordingly, we reverse the order dismissing the complaint.
The defendant urges that the judge had the authority to dismiss the complaint pursuant G. L. c. 275, § 1, as amended by St. 1959, c. 313, § 17, which provides: "The justices of . . . district courts may cause all laws made for the preservation of the public peace to be kept; and in the execution of that power may require persons to give security to keep the peace, or for their good behavior, or both, as provided in this chapter." The judge did not rely on G. L. c. 275, § 1, and did not require the defendant to post a peace bond. Therefore, we do not reach this argument.
So ordered.
By the Court (Rubin, Maldonado & Massing, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: April 20, 2016.