Opinion
21-P-378
05-07-2021
COMMONWEALTH v. Antonis G. MALLIOS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant sought relief from a single justice of the Supreme Judicial Court, pursuant to G. L. c. 211, § 3, from the denial of his request for a stay of his sentences pending appeal. The single justice transferred the matter to a single justice of this court. The single justice denied the defendant's request for a stay. The defendant now appeals from that denial. Because we conclude that the single justice neither abused her discretion, nor committed an error of law, we affirm the order denying the motion to stay the defendant's sentences pending appeal.
The defendant pleaded guilty in the Superior Court on October 11, 2019, and is serving concurrent sentences of two and one-half to three and one-half years in State prison, committed, on ten charges of larceny in violation of G. L. c. 266, § 30 (1) ; he also was sentenced to four years' probation, from and after the incarcerated portion of his larceny sentences, on two counts of false entry in corporate books, in violation of G. L. c. 266, § 67. His conditions of probation include, inter alia, payment of restitution in the amount of $1,239,564.06 (or a lesser amount as ordered by the court) and attendance at Gambler's Anonymous.
On April 6, 2020, the defendant filed a late motion to revise and revoke; the judge who had accepted the plea denied the motion on April 27, 2020. On September 11, 2020, the defendant filed a motion to stay, along with a motion to reconsider the denial of his motion to revise and revoke, and a separate motion for a new trial pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). The judge denied all of these motions.
In his petition to the single justice, the defendant argued that he should be released while his appeal is pending because he has meritorious issues on appeal, no record of crimes of violence, and, also faces the danger of his contracting COVID-19 while incarcerated. After her review, the single justice found no abuse of discretion or other error of law in the motion judge's denial of the stay.
We review the single justice's decision denying the motion for a stay for error of law or abuse of discretion. Commonwealth v. Nash, 486 Mass. 394, 412 (2020). Here, the single justice determined that the motion judge did not err or abuse his discretion by denying the stay. Although the single justice had the authority (but did not exercise it) to independently consider the merits of the petition under the factors articulated in Christie v. Commonwealth, 484 Mass. 397 (2020), and Commonwealth v. Hodge (No. 1), 380 Mass. 851 (1980), we "do[ ] not exercise [our] own independent discretion to evaluate the request for a stay; rather, [we] review[ ] the correctness of the single justice's ruling." Nash, supra. See Commonwealth vs. Harris, Supreme Judicial Ct., No. SJC-13046, slip op. at 2 (Apr. 29, 2021).
In Commonwealth v. Nash, 486 Mass. at 402-412, the court clarified the legal standards governing motions pursuant to Mass. R. Crim. P. 31, as appearing in 454 Mass. 1501 (2009), and Mass. R. A. P. 6 (b), as appearing in 454 Mass. 1601 (2009), to stay execution of sentences pending appeals from criminal convictions, particularly during the COVID-19 pandemic. A judge considering such a motion must consider three factors: "(1) the defendant's likelihood of success on appeal, (2) certain security factors [e.g., the risk of flight and the danger to any other person or to the community], and (3) certain risks associated with the pandemic." Id. at 403. The court emphasized, as to the first factor, that
"the defendant must show that there is at least one appellate issue of sufficient heft that would give an appellate court pause -- in other words, one or more issues that require a legitimate evaluation, that would engender a dialectical discussion among an appellate panel where both sides find some substantive support, and that would, if successful, lead to a favorable outcome for the defendant."
Id. at 404. As to the COVID-19 factor, the court clarified that "[i]t is not incumbent on a defendant seeking a stay to prove that COVID-19 is present, let alone rampant, at the facility where he or she is incarcerated, or that the defendant is at an especially high personal risk because of his or her age or medical condition." Id. at 406-407. Nor is it appropriate to use the COVID-19 factor against a defendant who "is not known to be at a particularly high risk from the dangers of COVID-19." Id. at 409.
Here, the defendant's first appellate issue relates to a claimed error in the denial of his motion pursuant to Mass. R. Crim. P. 29, as appearing in 474 Mass. 1503 (2016), to revise and revoke his sentence. The defendant pleaded guilty in October 2019, but his rule 29 motion to revise and revoke his sentence was not filed until April 2020. This was outside rule 29's sixty-day time limit. See Commonwealth v. McGuinness, 421 Mass. 472, 473 n.2 (1995) (" Rule 29 of Massachusetts Rules of Criminal Procedure, ... requires that a motion to revise or revoke must be filed within sixty days of the imposition of a sentence"). As the motion judge and the single justice determined, the motion was not timely filed, and was therefore properly denied.
Furthermore, as the single justice properly noted, the sixty-day time period exists to protect the separation of powers under article 30 of the Massachusetts Declaration of Rights. See Committee for Pub. Counsel Servs. v. Chief Justice of the Trial Court (No. 1), 484 Mass. 431, 451 (2020). In fact,
"[w]here there is no constitutional violation, ... art. 30 of the Massachusetts Declaration of Rights precludes the judiciary from using its authority under Rule 29 to revise and revoke sentences in a manner that would usurp the authority of the executive branch. Removing any limitation on the time in which a motion to revise and revoke a sentence may be brought, however, would do precisely that."
Id. at 436. See Commonwealth v. McCulloch, 450 Mass. 483, 488 (2008), quoting McGuinness, 421 Mass. at 476 n.4 ("A judge may not interfere with the executive function of the parole board by using postconviction evidence in an order to revise and revoke").
The defendant's remaining appellate claim is that it was error to deny his motion for a new trial based on a claim of ineffective assistance of counsel at sentencing. The single justice saw "very little likelihood of success" for this claim on appeal. In essence, crediting the motion judge, who took the defendant's guilty plea, the single justice held that the "defendant does not argue that he had a reasonable defense or that, but for his counsel's actions, he would have gone to trial. Instead, he argues that had counsel made other arguments, he would have persuaded the Court to impose a lesser sentence on the defendant's plea." The motion judge found the claim lacked merit.
As the motion judge found, defense counsel submitted a lengthy sentencing memorandum with attachments, and had argued vigorously in a lengthy, recorded lobby conference, at which the defendant was present. The judge concluded that "[d]efense counsel's sentencing advocacy ... was considerable and effective." He noted that, among the arguments the defendant advanced in the motion, most of those in fact were argued in counsel's sentencing memorandum, and the others are not supported by affidavit.
The motion judge and the single justice both noted that the defendant pleaded guilty to stealing more than $1 million from two entities
"in a scheme he perpetrated for his own benefit over many years. [The defendant] used his special skills to commit and cover up his crimes, abused his position of trust with each company and put the financial viability of both entities in jeopardy. He [then] gambled the money away, leaving the two entities without meaningful recourse."
Perhaps most revealing of the claim's lack of merit was the motion judge's finding that the sentence he imposed was "less than half of what the Commonwealth [was] seeking, based on defense counsel's advocacy." Neither of the appellate issues presented would give an appellate court any pause, let alone do they portend a favorable outcome for the defendant. See Nash, 486 Mass. at 404.
The single justice also considered that the defendant did not have a history of violence, and she understood the defendant's medical history including that he suffered from hypertension, a fatty liver, an overactive bladder, and asthma. The single justice also reviewed the special master's report for the week ending with March 17, 2020, which shows that, despite an earlier surge, there was then only one active case of COVID-19 among the inmates and one among the correctional officers at Old Colony Correctional Center in Bridgewater, where the defendant is now serving his sentence.
Along with the special master's report, the single justice specifically incorporated in her analysis the then recent mandate of Nash, 486 Mass. at 409, and the required careful balancing, including her weighing the special risks incarcerated prisoners face, as well as the need to reduce the number of incarcerated individuals, to protect those who remain incarcerated from the dangers of COVID-19, and "at the same time [to] protect[ ] the safety of the public, the families of those who are released, and the individuals themselves." Id. We add that the defendant's circumstances discussed above did not merit a finding of "exceptional circumstances" in this case. Commonwealth vs. Harris, Supreme Judicial Ct., No. SJC-13046, slip op. at 4 (Apr. 29, 2021) (COVID-19 pandemic itself does not present "an exceptional circumstance warranting exercise of a judge's inherent power to grant a stay where a defendant files a motion for a new trial"; rather, defendant must show exceptional circumstances exist in his or her particular case).
After conducting a careful review of all of the documents filed by the defendant and the Commonwealth, as well as the relevant case law discussed above, the single justice determined that the motion judge had not abused his discretion or committed an error of law by denying the motion to stay sentences. Similarly, we discern neither an abuse of discretion, nor an error of law, in the single justice's denial of the motion.
Order of single justice denying motion to stay sentences affirmed.