Opinion
11-P-1442
04-23-2012
JULIUS L. OWENS, petitioner.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is an appeal from the denial of two pro se habeas corpus petitions. In March, 2005, petitioner Owens was indicted on twenty-one criminal charges (among them four counts of assault with intent to murder, two counts of armed robbery, two counts of assault and battery on a police officer, one count of assault and battery by means of a dangerous weapon, and one count of armed carjacking). He was arraigned on all counts on April 8, 2005; public counsel was appointed. Owens entered pleas of not guilty, and bail was set at $250,000 or $2,500,000 with surety. Thereafter, as a Superior Court judge summarized:
'The criminal case docket entries reflect that there have been at least 45 court dates since Owens'[s] arraignment. The docket also reflects that seven attorneys have been appointed to represent Owens and at least 117 papers (motions or correspondence) have been filed by him in his criminal case to date. Owens was ordered committed to Bridgewater State Hospital (BSH) on three different dates as a result of being found incompetent and on April 5, 2007 he was ordered evaluated for criminal responsibility. Trials have been scheduled on 6 occasions and the case is currently scheduled for trial on July 5, 2011. On November 17, 2010 this court allowed Owens'[s] request to proceed as a pro se defendant with Attorney Shields acting as stand-by counsel.
'Owens submitted his motion to dismiss in his criminal case based on lack of a speedy trial on November 23, 2010 and a hearing was held on November 29, 2010. A memorandum of decision and order was entered denying the motion to dismiss on December 27, 2010. Owens filed a motion for interlocutory appeal on January 10, 2011. On January 14, 2011 Justice Botsford, sitting as a single justice, denied Owens'[s] petition for review of the trial court's denial of his motion to dismiss.' (Footnotes omitted.)
On May 17, 2011 (according to the judge; the docket is inscrutable), Owens filed duplicative petitions for a writ of habeas corpus based, evidently, upon the same speedy trial concerns. The judge denied the petitions, concluding that they were 'nothing more than an attempt to re-litigate Owens' [s] motion to dismiss. Ordinary appellate procedures would be available to the defendant, to review the correctness of the trial court['s] ruling on his motion to dismiss, should he be convicted of any of the indictments against him.' Owens appealed.
In his record appendix, Owens has reproduced only a portion of the indictments, the judge's decision on his petitions for habeas corpus, and the docket, which also appears to be incomplete. To the extent they may be relevant, Owens has not reproduced his earlier motion to dismiss with his supporting affidavit and memorandum, the Commonwealth's opposition, or the judge's decision denying that motion. He also has not reproduced either relevant petition for habeas corpus, any supporting materials, any filing in opposition by the Commonwealth, or his notice of appeal.
'[A] petition for a writ of habeas corpus may be brought by an individual who contends that the term of a lawfully imposed sentence has expired, and who bases his arguments on grounds distinct from the issues at the indictment, trial, conviction, or sentencing stage.' Stewart, petitioner, 411 Mass. 566, 568 (1992) (citations omitted). Soura, petitioner, 436 Mass. 1003, 1003-1004 (2002). 'Under [Mass.R.Crim.P.] 36(b)(1)(C), [378 Mass. 910 (1979),] a criminal defendant who is not brought to trial within one year of the return day in the court in which the case is awaiting trial is presumptively entitled to dismissal of the charges unless the Commonwealth justifies the delay.' Commonwealth v. Montgomery, 76 Mass. App. Ct. 500, 502 (2010). Owens reiterates his speedy trial arguments that certain periods of delay fall outside the excluded periods under Mass.R.Crim.P. 36(b)(2), 378 Mass. 910-912 (1979), but this has not been established on the record. His unsupported arguments do not compel the conclusion that he is entitled to relief on speedy trial grounds. As the judge noted, Owens has an adequate alternative route to seek relief, and Owens makes no allegation, much less a showing, that his allegations could not be addressed in the ordinary appellate process (e.g., review of the denial of his motion to dismiss). See Benyamin v. City Manager of Worcester, 440 Mass. 1036, 1037 (2004).
Notwithstanding Owens's unsupported assertions, on the record provided we are unable to compute the periods to be excluded under Mass.R.Crim.P. 36(b)(2). For that reason, if no other, Owens's petition fails. Compare the specificity, for example, in Montgomery, 76 Mass. App. Ct. at 502-506. While it was the Commonwealth's burden to justify the number of excludable days, Owens has not reproduced enough of the record to establish that the Commonwealth failed to meet that burden below.
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The petitions were properly denied.
Order denying petitions for writ of habeas corpus affirmed.
By the Court (Grasso, Mills & Trainor, JJ.),