Opinion
12-P-1263
07-17-2015
COMMONWEALTH v. PAUL F. SHEDLOCK.
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
After a bench trial in the Plymouth Superior Court, the defendant, Paul F. Shedlock, was found to be a sexually dangerous person (SDP) and committed to the Massachusetts Treatment Center for a period of one day to life. See G. L. c. 123A, §§ 12-14. The defendant contends on appeal that: (1) he was denied a speedy probable cause hearing; (2) he was denied a speedy trial; (3) trial counsel was ineffective; (4) his constitutional right to counsel was violated when the judge denied his motion to proceed pro se; and, (5) the evidence of sexual dangerousness and the likelihood of reoffense was insufficient. For the following reasons, we affirm.
Discussion. Speedy probable cause hearing. The defendant maintains that he was denied the right to a speedy probable cause hearing after he was temporarily committed in November, 2012, pursuant to G. L. c. 123A, § 12(e). Approximately one year later, the defendant moved to dismiss the Commonwealth's petition, contending that the delay violated his due process rights. "[A]bsent unusual circumstances, a probable cause hearing should commence no later than ten business days after a temporary commitment order is made under § 12(e)". Commonwealth v. Bruno, 432 Mass. 489, 513 (2000).
The motion judge denied the defendant's motion, on the basis that "special circumstances", including an interim appeal, accounted for the delay between the defendant's November, 2002, commitment and the issuance of the Supreme Judicial Court's rescript of the matter in September, 2003. See ibid. The defendant concedes that exceptional circumstances existed while the appeal was pending, but points to the lapse of 109 business days between the rescript date and the February 17, 2004, probable cause determination as the basis for his contention that his motion to dismiss the Commonwealth's petition and motion for reconsideration were erroneously denied. On motion for reconsideration, the motion judge addressed this postrescript delay, noting that the November 25, 2003, probable cause hearing was rescheduled at the defendant's request and over the Commonwealth's objection to allow the defendant to retain an expert to testify at the hearing. As these circumstances are borne out by the record, we discern no abuse of discretion.
The judge cited the discharge of the defendant's original attorney before the first scheduled probable cause hearing, the next attorney's failure to attend the second scheduled probable cause hearing, the Commonwealth's appeal from the denial of its motion for temporary detention, the defendant's petition for further appellate review, and the time required to transfer the case from the Supreme Judicial Court back to the Superior Court.
Moreover, the statute does not contemplate dismissal of a petition as a remedy for such delay. See Kenney, petitioner, 66 Mass. App. Ct. 709, 712 (2006). Rather, the statute explicitly provides only for the defendant to move the court for relief from temporary commitment prior to the probable cause determination. See G. L. c. 123A, § 12(e); Kenney, supra.
Speedy trial. The defendant contends that the motion judge's denial of his motion to dismiss the petition for lack of a speedy trial was erroneous. Because of the important liberty interest at stake, G. L. c. 123A, § 14(a), requires that "the Commonwealth must ensure that trial is commenced within sixty days [of its petition for trial] unless the judge makes a finding, based on supporting evidence, that there is good cause to continue the trial or that it is otherwise in the interests of justice to do so" (footnote omitted). Commonwealth v. DeBella, 442 Mass. 683, 689 (2004).
The defendant moved pro se to dismiss the Commonwealth's petition for lack of a speedy trial on April 12, 2005. The defendant's attorney filed a motion to dismiss on that same basis on July 22, 2005. The motions were both heard and denied at a motion hearing on August 26, 2005.
The Commonwealth moved for trial on April 14, 2004. According to the docket, no further action was taken until 156 days later on September 17, 2004. This delay is attributable to the Commonwealth; however, the record also "indicates that [defense] counsel was not prepared to go to trial within the sixty-day period" or in the months thereafter. Id. at 690. At the August, 2005, motion hearing, the judge referred to Attorney Farrington's representations at an earlier hearing that he had been unable to timely attend to the defendant's case. In addition the defendant did not move for funds for psychiatric evaluation until October, 2005, and the defendant's experts did not submit their reports until November, 2005, well after the sixty-day trial period had lapsed. See ibid.
While it is the Commonwealth's duty to ensure that trial commences within the sixty-day period, dismissal is not a remedy available to a defendant who acquiesced in the delay. Id. at 689-690. Here, the motion judge explicitly found that "most of the continuances were requested by the [defendant] or were caused by [the defendant's] failure to comply with certain orders for discovery." The docket bears this out and nothing in the record points to the contrary. "The purpose of the statute is to have cases brought to trial rapidly, but not to deny justice in the interest of expediency." Id. at 691. In view of the judge's finding that the defendant's prior counsel was unprepared to proceed to trial between April 14, 2004, and September 17, 2005, and that subsequent delays were also attributable to the defendant, we discern no abuse of discretion in the denial of the motion.
The defendant filed a motion to proceed pro se in November, 2003. The motion was endorsed "no action" after hearing. Efforts to reconstruct the record with respect to this motion were unsuccessful. As there is no showing that the defendant contested this endorsement or took timely further action to advance the motion, the defendant was thereafter bound by the action of his attorney. Contrast Commonwealth v. Rodgers, 448 Mass. 538, 544-545 (2007).
Ineffective assistance. The defendant contends that trial counsel was ineffective for failing to demand a trial date and for waiving the defendant's presence at certain pretrial hearings. "[F]or purposes of this appeal the Commonwealth agrees that [the Saferian standard applies]." Commonwealth v. Sargent, 449 Mass. 576, 585 (2007). See Commonwealth v. Ferreira, 67 Mass. App. Ct. 109, 115 (2006) (applying ineffective standard in SDP case).
Commonwealth vs. Saferian, 366 Mass. 89, 96 (1974).
Cf. Poe v. Sex Offender Registry Bd., 456 Mass. 801, 811-814 (2010) (applying ineffective standard in sex offender classification hearing); Commonwealth v. Patton, 458 Mass. 119, 128-129 (2010) (in probation revocation or other proceeding involving important liberty interest where a person has a right to appointed counsel, there is a right to effective assistance of counsel).
The defendant fails to meet his burden under the familiar Saferian standard. Unlike other statutory provisions, see, e.g., G. L. c. 123A, § 13(a), G. L. c. 123A, § 14(a), contains express exceptions to the sixty day time period. See G. L. c. 123A, § 14(a), inserted by St. 1999, c. 74, § 8 ("The trial may be continued upon motion of either party for good cause shown or by the court on its own motion if the interests of justice so require"); DeBella, 442 Mass. at 688. We have only the trial record before us, which is the weakest form of an ineffective challenge. See Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002). Given the broad standard under § 14(a), the defendant has failed to demonstrate that better work or an earlier trial date would have accomplished something more for the defense. See Ferreira, supra at 117.
Motion to proceed pro se. The defendant filed a motion to proceed pro se on August 16, 2005. The defendant contends he was denied the right to represent himself when this motion was denied on August 19, 2005. Assuming without deciding that the defendant's constitutional right to proceed pro se, which was recognized in Commonwealth v. Martin, 425 Mass. 718, 721 (1997) as to criminal cases, also applies in the SDP setting, he nonetheless must make an unequivocal request. See Commonwealth v. Myers, 51 Mass. App. Ct. 627, 628-629 (2001).
The Commonwealth maintains that a hearing was held on August 19, 2005, to address Attorney Farrington's motion to withdraw and the defendant's motion to proceed pro se. No transcripts have been provided for this date or any other date addressing the defendant's motion. It was the defendant's burden to present us with a record sufficient to allow appellate review of his claim, either in the form of transcripts or a reconstructed record. See Mass.R.A.P. 8(b)(1), as amended, 430 Mass. 1603 (1999); Sargent, 449 Mass. at 582 n.10. The record is inadequate to assess the defendant's claim. See Commonwealth v. Monteiro, 71 Mass. App. Ct. 477, 478 n.2 (2008).
The Commonwealth's representations as to what occurred at that hearing also are not properly before this court in the absence of a transcript or an allowed motion to expand the record, and we do not consider them.
Sufficiency. The defendant contends that the trial judge erred in finding him sexually dangerous and likely to reoffend. The defendant maintains that the trial judge's findings did not link his diagnosis of personality disorder to a potential for reoffense and lacked an evidentiary basis to find him sexually dangerous.
We review the SDP finding "in the light most favorable to the Commonwealth" to determine if "any rational trier of fact could have found, beyond a reasonable doubt, the essential elements of sexual dangerousness, as defined by G. L. c. 123A, § 1." Commonwealth v. Husband, 82 Mass. App. Ct. 1, 4 (2012), quoting from Commonwealth v. Blake, 454 Mass. 267, 271 (2009) (Ireland, J. concurring). "With respect to the weighing and crediting of testimony admitted at trial, we will not substitute our judgment for that of the trier of fact. Hill, petitioner, 422 Mass. 147, 156 (1996). We do, however, scrutinize without deference the propriety of the legal criteria employed by the trial judge and the manner in which those criteria were applied to the facts." Commonwealth v. Boucher, 438 Mass. 274, 275-276 (2002).
To establish that an individual is a sexually dangerous person, the "Commonwealth must prove three elements beyond a reasonable doubt: (1) that the person was convicted of a sexual offense designated by the statute;[] (2) that he suffers from a mental abnormality or personality disorder; and (3) that, as a result of that mental abnormality or personality disorder, he is likely to commit further sexual offenses if not confined to a secure facility." Husband, supra at 3-4, citing G. L. c. 123A, §§ 1, 14(d). The judge found that the defendant suffered from antisocial personality disorder and that this condition deprived him of the "power to control his sexual impulses," making him "unable to conform his conduct to the norms of whatever society he happens to be in." This disorder is a "personality disorder" within the meaning of the statute. See Commonwealth v. Reese, 438 Mass. 519, 526 n.9 (2003).
The parties agreed that the defendant had been convicted of a sexual offense.
The defendant does not contest the factual underpinnings of his offenses or the diagnosis of antisocial personality disorder, although he does contest certain inferences drawn by the judge. The defendant contends that the judge mischaracterized the rapes for which he was convicted as "violent, brutal, and sadistic," arguing that he never actually committed the threats he made during the rapes (e.g., to cut out the victim's tongue, the threat of death at gunpoint if she did not cooperate, and in one instance, threatening to kill the victim's husband, who was bound and forced to watch). This argument is misplaced in multiple respects. Suffice it to say that a fact finder may infer that a threat of death or mutilation is violent, brutal, and sadistic.
In making the likelihood determination, the judge employed the appropriate legal criteria, "by analyzing a number of factors, including the seriousness of the threatened harm, the relative certainty of the anticipated harm, and the possibility of successful intervention to prevent that harm." Boucher, supra at 276. The judge found that the circumstances of the rapes of which the defendant was convicted presented a serious threat of harm, the Static 99 placed the defendant at a very high likelihood of reoffense, and the defendant suffered from a long history of drug and alcohol abuse and failed to participate in sex offender treatment. The judge concluded that these factors, collectively, demonstrated a significant risk that the defendant would likely reoffend.
Contrary to the defendant's contention, the judge did consider and weigh the facts indicating that the defendant was not likely to sexually reoffend. The judge's findings make clear that he considered the competing opinions of the experts. The judge also considered factors that would suggest a low risk of reoffense, such as age and adverse health factors. It was for the judge to weigh the conflicting opinions and determine "which expert's testimony to accept, if any." Husband, 82 Mass. App. Ct. at 10, quoting from Brodin & Avery, Massachusetts Evidence § 7.4.3. (8th ed. 2007). "The available expert testimony furnished proof beyond a reasonable doubt for" the judge's finding of likelihood to reoffend. See Husband, 82 Mass. App. Ct. at 11.
Judgment affirmed.
By the Court (Sullivan, Maldonado & Massing, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: July 17, 2015.