Opinion
20-P-110
11-09-2020
COMMONWEALTH v. WILLIAM SANTIAGO.
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 appeals from the denial of his motion to dismiss and seal charges filed against him. We affirm.
Discussion. In 1991, the defendant was charged with one count of assault and battery pursuant to G. L. c. 265, § 13A; one count of malicious destruction of property pursuant to G. L. c. 266, § 127; and one count of threatening to commit a crime pursuant to G. L. c. 275, § 2. On October 26, 1994, the charges were placed on file, a procedure authorized by G. L. c. 218, § 38, without a plea.
The defendant contends that "[t]he cases were first nolle prosequi 'NP' by the Chelsea District Court, then 'filed without a change of plea.'" However, taking the docket together with the defendant's criminal record, the cases were filed without a change of plea. As we have previously instructed the defendant, see Commonwealth v. Santiago, 67 Mass. App. Ct. 1115 (2006), he may move to challenge any perceived clerical mistake on the docket in the trial court. See Mass. R. Crim. P. 42, 378 Mass. 919 (1979). We take no position on the merits of such a challenge.
"Ordinarily, we do not consider appeals from indictments placed on file," Commonwealth v. Chappee, 397 Mass. 508, 523 (1986), because in the absence of a sentence, the judgment is not final, see Commonwealth v. Delgado, 367 Mass. 432, 438 (1975). A defendant must assent to an indictment being placed on file, because the procedure deprives a defendant of the right to appeal. See id.
The defendant does not argue that he did not consent for the cases to be placed on file. The defendant's remedy therefore does not lie with this court; instead, the defendant has the choice to move that the case be removed from the file and that there be a final disposition of these charges in the trial court. See Commonwealth v. Simmons, 448 Mass. 687, 698 (2007) ("By consenting to the filing, the defendant also consented to the delay in sentencing. Had he wished to be sentenced earlier, he need only have moved to do so"). This case does not present any exceptional circumstances that require us to look beyond the general rule that cases placed on file are not properly the subject of appellate review. See Commonwealth v. Prashaw, 57 Mass. App. Ct. 19, 27 (2003).
Because the charges were not dismissed, they cannot be sealed, and it was not error for the judge to deny the request to do so. See G. L. c. 276, § 100C (authorizing judges to seal records in cases where defendant has been acquitted, where grand jury has returned no bill, or where judge has found lack of probable cause).
Order entered September 23, 2019, denying defendant's motion to dismiss and seal, affirmed.
By the Court (Milkey, Blake & Henry, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: November 9, 2020.