Opinion
14-P-1207
01-29-2016
COMMONWEALTH v. OWEN M. MCCANTS.
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
In 1974, the defendant, Owen M. McCants, was sentenced after trial on two separate indictments. Four decades later, in 2014, McCants filed a postconviction discovery motion "to copy and/or inspect probation records" (motion to copy and/or inspect) in respect to those convictions. On March 17, 2014, a Superior Court judge, who was not the sentencing judge, denied that motion without a hearing. The defendant timely filed a motion to reconsider that was denied without a hearing on July 14, 2014. On appeal, the defendant contends the judge abused his discretion under Mass.R.Crim.P. 28(d)(3), 378 Mass. 899 (1979), in denying these motions. For substantially the same reasons as stated in the Commonwealth's memorandum at pages four through seven, we affirm.
In May, 1974, a Superior Court jury found the defendant guilty of two counts of unarmed robbery, and two counts of unnatural acts against another. He received four concurrent sentences of three to five years imprisonment. In November, 1974, a Superior Court jury found the defendant guilty of armed robbery and rape, and he was sentenced to two concurrent prison terms of ten to twenty years from and after his sentence imposed in May, 1974.
In the defendant's motion to reconsider, and again on appeal, the defendant highlights that he has filed a motion for postconviction relief pursuant to Mass.R.Crim.P. 30, as appearing in 435 Mass. 1501 (2001). "In the ordinary course, an established route for a defendant to 'obtain appellate review of the denial of his motion for postconviction discovery would be in connection with an appeal from the denial of his motion for a new trial, if the new trial motion is in fact denied.'" Commonwealth v. Ware, 471 Mass. 85, 92 (2015), quoting from Donald v. Commonwealth, 437 Mass. 1007, 1007 (2002). To the extent the defendant seeks appellate review of the denial of his motion for postconviction discovery on the basis that he has filed a motion for new trial, that basis is not properly before us, as we see no ruling on a new trial motion.
Rule 28(d)(3) provides in relevant part that "[p]rior to the disposition the presentence report shall be made available to the prosecutor and counsel for the defendant for inspection." The defendant, who seeks the presentencing discovery forty years after sentencing, has failed to assert or demonstrate that these documents were not "made available" in 1974 prior to sentencing. See G. L. c. 276, § 85, as amended by St. 1968, c. 333, § 2 ("before disposition of the case against [the defendant] by sentence . . . such record of the probation officer shall be made available to the defendant and his counsel for inspection").
Furthermore, "[w]hen, through no fault of the Commonwealth, the passage of time has destroyed or eroded the record of the proceeding . . . the defendant rather than the Commonwealth must bear the consequences. . . . It promotes judicial efficiency and finality by discouraging a defendant from letting years pass without challenging the proceeding only to attempt to undo it many years later, whether by neglect or by intention." Commonwealth v. Wheeler, 52 Mass. App. Ct. 631, 637-638 (2001).
Here, the Commonwealth represents that the records of the defendant's 1974 sentencing hearings have been destroyed and are no longer available. Having let forty years pass before moving to copy and/or inspect the probation records, the defendant must bear the consequence of their destruction. The Commonwealth cannot produce that which does not exist. Accordingly, we discern no abuse of discretion in the judge's denial of the defendant's postconviction discovery motions for probation records.
Order dated March 17, 2014, denying postconviction discovery motion, affirmed.
Order dated July 14, 2014, denying motion for reconsideration, affirmed.
By the Court (Berry, Meade & Maldonado, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: January 29, 2015.