Commonwealth v. Harold L. Oliver, Jr. ( 2024 )

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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-1070
COMMONWEALTH
vs.
HAROLD L. OLIVER, JR.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After serving over thirty years of his thirty-to-forty year
State prison sentence for assault with intent to rape, second
offense, see G. L. c. 265, § 24, the defendant filed a motion
pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass.
1501 (2001), seeking a new sentencing hearing. The motion was
assigned to a Superior Court judge who declined to exercise his
discretion to revisit the sentence, concluding that the
defendant's motion failed to establish that justice was not
done. The defendant appeals from the denial of the motion.
The basis of the defendant's motion was that as a child and
adolescent he was the victim of horrific sexual abuse and human
trafficking, but that these mitigating circumstances were not
brought to the attention of the trial judge at sentencing.
Appropriately, he does not contend that his claim involves newly
discovered evidence or that his defense counsel at the time was
ineffective, as he admits that he was aware of his past abuse
but did not communicate it to counsel. Rather, the defendant
claims that he is entitled to relief under "[t]he fundamental
principle established by [rule 30 (b)]" that a new trial may be
awarded "if it appears that justice may not have been done,"
even "in the absence of error or new evidence." Commonwealth v.
Brescia, 471 Mass. 381, 388, 390 (2015).
To begin, we observe that the defendant has filed multiple
new trial motions and motions to revise and revoke since his
conviction. Indeed, he appears to have asserted a similar claim
as that asserted here in connection with a 1998 motion to revise
and revoke. Thus, the issue is waived, see Mass. R. Crim. P.
30 (c) (2), as appearing in 435 Mass. 1501 (2001); Commonwealth
v. Deeran, 397 Mass. 136, 142 (1986), and at the very least the
defendant must demonstrate a substantial risk of a miscarriage
of justice to be entitled to relief. See Commonwealth v.
Randolph, 438 Mass. 290, 296 (2002); Commonwealth v. Azar, 435
Mass. 675, 685 (2002). The Commonwealth argues that he is
entitled to no relief whatsoever because his motion is in effect
an untimely motion to revise and revoke. See Mass. R. Crim. P.
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29 (a) (2), as appearing in 489 Mass. 1503 (2022) (judge may
revise or revoke disposition of criminal case upon motion
brought "within sixty days of a disposition, within sixty days
of issuance of a rescript by an appellate court on direct
review, or within sixty days of the disposition of criminal
charges against a codefendant"); Commonwealth v. Fenton F., 442
Mass. 31, 36 (2004). Assuming without deciding that the motion
judge properly treated the motion as a rule 30 (b) motion and
had the discretion to order a new sentencing hearing, we discern
no abuse of that discretion.
"It is well established that, in reviewing the denial or
grant of a new trial motion, we examine the motion judge's
conclusion only to determine whether there has been a
significant error of law or other abuse of discretion"
(quotation and citation omitted). Brescia, 471 Mass. at 387.
"Under the abuse of discretion standard, the issue is whether
the judge's decision resulted from a clear error of judgment in
weighing the factors relevant to the decision . . . such that
the decision falls outside the range of reasonable alternatives"
(quotation and citation omitted). Commonwealth v. Kolenovic,
471 Mass. 664, 672 (2015).
Here, the motion judge declined to grant the relief sought
by the defendant because he determined that the defendant failed
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to show that "justice was not done." In making this
determination, the judge commented the original sentence was
neither "inappropriate" nor "too harsh," and that the evidence
of the abuse suffered by the defendant "does not serve as a
basis to overturn or vacate his legally imposed sentence, given
the defendant's underlying conduct, the fact that this offense
was committed while on parole, the time delay between sentencing
and this motion; [the] 1998 letter to Judge Barton; the Rule 29
motions previously denied; etc."
The defendant's reliance on Commonwealth v. Talbot, 444
Mass. 586, 595-597 (2005), is misplaced. In Talbot, the
contents of a presentencing report had no prejudicial effect on
the defendant's sentence because the information in the report
was cumulative of information that the judge already had. See
id. Nothing in Talbot suggests or implies that a judge may not
consider the appropriateness of the original sentence in
determining whether the evidence offered by a defendant years
later rendered the original sentence unjust. Nor are we
persuaded by the defendant's claim that he "stands in
essentially the same place" as the defendant in Commonwealth v.
Epps, 474 Mass. 743 (2016). There, new evidence based on
evolving scientific research about child head injuries would
have been a "real factor" in the jury's deliberations, and the
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defendant's deprivation of such a defense created a serious
doubt as to whether the jury's verdict would have been the same.
See id. at 768. Here, the motion judge reasonably concluded
that the evidence of the defendant's past abuse would not have
been such a significant factor at the defendant's sentencing
hearing as to cast doubt on the justice of the sentence imposed.
There was no abuse of discretion. The factors that the judge
considered were appropriate and relevant, and his determination
that there was no injustice is reasonable.
Order denying motion for new
trial affirmed.
By the Court (Massing, Shin &
D'Angelo, JJ.1),
Clerk
Entered: August 1, 2024.
1 The panelists are listed in order of seniority.
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