Opinion
21-P-809
08-26-2022
COMMONWEALTH v. RICHARD CALLAHAN.
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
In this much-traveled case, the defendant again appeals from his order of pretrial detention pursuant to G. L. c. 276, § 58A. We affirm.
Background.
We summarize the relevant and undisputed facts, reserving additional facts for later discussion. After an incident on November 2, 2019, the facts of which are not relevant to this appeal, the defendant was detained and, two days later, arraigned and held pursuant to § 58A. The defendant was charged with multiple crimes, including attempted murder. At arraignment, the Commonwealth moved for pretrial detention under § 58A; that motion was heard and allowed. The defendant later moved for release; that motion was denied and the defendant filed a petition for relief under G. L. c. 211, § 3. A single justice of the Supreme Judicial Court transferred the petition to a single justice of this court, who denied the petition. The defendant appealed, and a panel of this court vacated the single justice order and remanded the matter to the Superior Court in light of the Supreme Judicial Court decision in Mushwaalakbar v. Commonwealth, 487 Mass. 627, 627 (2021) (Mushwaalakbar). See Commonwealth v. Callahan, 99 Mass.App.Ct. 1129 (2021).
The other charges are defacement of real or personal property (four counts), breaking and entering in the nighttime with intent to commit a misdemeanor (two counts), breaking and entering in the nighttime (one count), strangulation or suffocation (two counts), assault and battery on a family or household member (one count), and intimidation of a witness (one count).
The trial court judge denied the defendant's motion to reconsider his pretrial detention pursuant to Mushwaalakbar and the defendant again filed a petition for relief under G. L. c. 211, § 3, which was transferred to this court. A second single justice of this court denied the defendant's petition. This appeal followed.
Standard of review.
"When a party appeals from an adverse judgment by the single justice under G. L. c. 211, § 3, we review the single justice's order for clear error of law or abuse of discretion." Brangan v. Commonwealth, 477 Mass. 691, 697 (2017). "A decision constitutes an abuse of discretion where it results from 'a clear error of judgment in weighing the factors' and consequently 'falls outside the range of reasonable alternatives.'" Commonwealth v. Herring, 489 Mass. 569, 573 (2022), citing L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) .
Discussion.
When deciding whether a defendant's pretrial detention violates due process, "judges should weigh (1) the length of detention and the projected length of ongoing detention, (2) the existence and nature of a plea offer, (3) evidence supporting detention under § 58A, (4) specific unfair prejudice to the defendant, and (5) the Commonwealth's responsibility for the delay." Mushwaalakbar, 487 Mass. at 629.
We are asked to determine whether the single justice erred when he determined that the motion judge committed no error of law or abuse of discretion. The defendant asserted that the motion judge abused her discretion by (1) "incorrectly exclud[ing] two-thirds of the petitioner's pretrial detention period as if it did not exist" and "not consider[ing] the projected length of ongoing detention," (2) weighing the absence of plea negotiations against him and considering the sentencing guidelines, (3) improperly weighing specific unfair prejudice to the defendant, and (4) "failing to find the Commonwealth responsible for any of the delay." We are unpersuaded.
1. The length of detention and the projected length of ongoing detention.
"[T]he judge should consider the length of time the defendant has been detained, as well as the projected length of continuing detention." Mushwaalakbar, 487 Mass. at 635. "[S]hould the length of a defendant's pretrial detention surpass the likely sentence on the charge if convicted before reaching the trial date, then due process may require releasing the defendant prior to the trial date." Id. Here, the judge properly noted that "at least two-thirds of the time the defendant has been detained is excludable under Commonwealth v. Lougee, 485 Mass. 70 (2020) and the [court's] pandemic emergency orders." In Lougee, the Supreme Judicial Court held that periods of pretrial delay resulting from continuances mandated by its COVID-19 pandemic emergency orders were excludable from speedy trial computations. See Commonwealth v. Lougee, 485 Mass. 70, 72 (2020). Mushwaalakbar clarified that these periods are not excluded when calculating whether a defendant has a right to a hearing on a motion for reconsideration under § 58A (4). Mushwaalakbar, 487 Mass. at 628.
The trial judge properly applied Lougee, which resulted in excluding the majority of the defendant's time in custody, and the single justice committed no error in upholding that decision. See Lougee, 485 Mass. at 72. The remaining time was far less than the potential sentence on these serious charges, so the judge properly perceived no concern that the length of pretrial detention could exceed the length of the defendant's sentence if convicted.
2. The existence and nature of a plea offer.
Because plea offers can bear on how much time a defendant would likely spend incarcerated, a judge must consider the existence and nature of a plea offer. See Mushwaalakbar, 487 Mass. at 635. At the time of the hearing, the defendant had been detained for about one year and seven months, and there was no evidence that he had been offered an opportunity to resolve the case and serve a shorter sentence. The single justice did not err in determining the trial judge committed no abuse of discretion in weighing this factor.
It was not error for the trial judge to consider the sentencing guidelines when assessing the reasonableness of the defendant's pretrial detention. See Mushwaalakbar, 487 Mass. at 635 (due process may require release from pretrial detention "should the length of a defendant's pretrial detention surpass the likely sentence on the charge if convicted before reaching the trial date"); Lougee, 485 Mass. at 81 (pretrial detention poses due process concerns "where the duration of pretrial confinement approaches or exceeds the length of sentence a defendant would be likely to receive if he or she were found guilty of the crimes charged"). Although the guidelines are advisory, Massachusetts Sentencing Commission, Advisory Sentencing Guidelines (Nov. 2017), they may provide a useful framework, particularly in the absence of case-specific negotiations, for assessing the reasonableness of pretrial detention.
3. Specific unfair prejudice to the defendant.
"[T]he judge should consider whether continued detention would result in any specific prejudice to the defendant." Mushwaalakbar, 487 Mass. at 636. "Prejudice includes, but is not limited to, specific health risks. Heightened risks of contracting COVID-19 while incarcerated fall under this factor." Id. The defendant claims specific prejudice from: "(1) indefinite detention and its deleterious effects, (2) ineffective assistance of counsel, (3) denial of access to the court, and (4) time." He also argues that the "judge failed to consider whether and to what extent to which the petitioner is disadvantaged in defending himself." We are unpersuaded.
The defendant did not identify any specific health risks and was unable to point to any prejudice specific to him. The judge concluded that "[t]he fact that the pandemic, and specific health concerns of one or more of his attorneys, prevented him from seeing his attorneys in person as frequently as he desired to, does not amount to specific prejudice such that his motion for release should be allowed." The judge also appropriately considered that "each of the four attorneys appointed to represent the defendant engaged in motion practice on behalf of [him]." We discern no abuse of discretion in the single justice's determination that the motion judge did not commit an error of law or abuse of discretion in weighing this factor against the defendant.
4. Commonwealth's responsibility for delay.
"[D]elays caused solely by the COVID-19 pandemic are essentially 'a wash' and should not be weighed in favor of either party." Mushwaalakbar, 487 Mass. at 636. "If, however, a delay is not solely due to the COVID-19 pandemic -- for example, if the Commonwealth answers that it is not ready for trial -- then that delay would weigh against the Commonwealth." Id. at 637.
The defendant maintains that the Commonwealth improperly delayed hearings on his motions to suppress evidence and to dismiss the case, causing a six-month delay and extending his pretrial detention time, and that the motion judge improperly "absolved the Commonwealth" of this delay. We disagree.
The motion judge found that the three continuances in question, which together resulted in less than four months' delay, did not merit a finding that due process required the defendant to be released from pretrial detention. It was within the motion judge's discretion to find that reasonable grounds supported the Commonwealth's requests for the continuances, see Mass. R. Crim. Pro. 36 (b) (2) (F), as amended, 422 Mass. 1503 (1996), and the single justice did not err in concluding that the motion judge did not abuse her discretion in weighing this factor.
The Commonwealth first moved for a continuance because the prosecutor was scheduled to get her second dose of the COVID-19 vaccine, then because the prosecutor was called into trial in another session and had to participate in jury selection on the date of the motion, and finally because the prosecutor would be out of state for a medical procedure.
Conclusion.
The motion judge properly weighed the overwhelming evidence of dangerousness that supported pretrial detention under § 58A, and, taken as a whole, the record supports the judge's denial of the defendant's motion to reconsider his pretrial detention under § 58A. The single justice committed no error or abuse of discretion in affirming the order of the motion judge.
We address the merits of each claim, but do not necessarily analyze each argument advanced in support of those claims. "To the extent that we have not specifically addressed other points made ... in [the memorandum of law], they 'have not been overlooked. We find nothing in them that requires discussion.'" Commonwealth v. Brown, 479 Mass. 163, 168 n.3 (2018), quoting Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
Order of single justice, entered September 8, 2021, denying motion to reconsider affirmed.
The panelists are listed in order of seniority.