Christie v. Commonwealth

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SJC-12927
GLENN CHRISTIE vs. COMMONWEALTH.
Suffolk. March 31, 2020. - April 1, 2020.
Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
Practice, Criminal, Sentence, Execution of sentence, Stay of
proceedings.
Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on March 17, 2020.
A motion to stay execution of a sentence was heard by Budd,
J., and the case subsequently was reported by her.
David Rassoul Rangaviz, Committee for Public Counsel
Services, for the petitioner.
Sarah M. Joss, Special Assistant Attorney General, for
Probation Service.
David F. O'Sullivan, Assistant District Attorney, for the
Commonwealth.
Katharine Naples-Mitchell, for Mary T. Bassett & others,
amici curiae, submitted a brief.
GANTS, C.J. The issue presented on appeal is whether the
denial by a single justice of the Appeals Court of a motion to
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stay execution of a sentence pending appeal before the Governor
declared a state of emergency arising from the COVID-19 pandemic
required a Superior Court judge to deny a subsequent motion to
stay brought after the declaration. We conclude that it does
not: the health risks to a person in custody caused by the
pandemic constitute changed circumstances that require de novo
review of the motion to stay. We also conclude that, in
conducting that de novo review, a judge must give careful
consideration not only to the risks posed by releasing the
defendant –- flight, danger to others or to the community, and
likelihood of further criminal acts -- but also, during this
pandemic, to the risk that the defendant might die or become
seriously ill if kept in custody.1
Background. In 2007, the defendant was convicted on four
indictments charging statutory rape, one indictment charging
indecent assault and battery on a child under the age of
fourteen, and one indictment charging dissemination of obscene
material to a minor. See Commonwealth v. Christie, 89 Mass.
App. Ct. 665, 666 (2016). The convictions on all but the
dissemination charge were reversed on appeal, and the verdicts
were set aside. See id. at 676. On remand to the Superior
We acknowledge the amicus brief submitted by ten public
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health experts.
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Court, the defendant pleaded guilty to three counts of rape of a
child and one count of indecent assault on a child under
fourteen on June 19, 2018. He was sentenced to time served in
prison and was placed on probation for ten years. On April 29,
2019, a Superior Court judge found that the defendant committed
technical violations of his conditions of his probation,
specifically missing a meeting with his probation officer, being
temporarily suspended from his sex offender treatment program,
and failing to comply with global positioning system monitoring.
The judge revoked his probation and sentenced him to from one to
two years in State prison. He is currently serving that
sentence at the Massachusetts Treatment Center (treatment
center), a medium security prison operated by the Department of
Correction.
In November 2019, the defendant filed a motion to
reconsider the revocation or, alternatively, to stay his
sentence pending appeal. The judge denied that motion on
February 14, 2020. His appeal from that denial is now pending
in the Appeals Court. The defendant then sought a stay of his
sentence pending appeal from a single justice of the Appeals
Court, who denied the motion on February 26, 2020.
On March 10, 2020, the Governor declared a state of
emergency throughout the Commonwealth in response to the spread
of COVID-19, a particularly virulent and dangerous coronavirus.
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See Executive Order No. 591. The next day, the World Health
Organization declared COVID-19 to be a global pandemic. On
March 17, because of the pandemic, this court closed court
houses to the public except to conduct emergency hearings that
cannot be resolved through a video conference or telephonic
hearing.
That same day, the defendant filed an emergency petition in
the county court, pursuant to G. L. c. 211, § 3, seeking
immediate release from custody based on the changed
circumstances arising from the COVID-19 pandemic, noting that he
is fifty-four years old and suffers from chronic medical
conditions that place him at particular risk of serious illness
or death were he to contract the virus. A single justice denied
the petition, where the defendant had not sought this relief
from a judge in the Superior Court. The defendant subsequently
filed an emergency motion for immediate release in the Superior
Court, which a judge (who was not the sentencing judge) denied
following a hearing on March 23. The defendant then renewed his
petition under G. L. c. 211, § 3, before the single justice, who
reserved and reported the case to the full court.
Discussion. 1. COVID-19. COVID-19 is a respiratory
illness caused by a novel coronavirus. While some patients with
COVID-19 develop mild respiratory illness, others develop severe
complications, such as pneumonia in both lungs, multi-organ
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failure, and in some cases death. COVID-19 is a particular risk
to older adults and to individuals with underlying health
conditions, such as cardiovascular disease, diabetes, and
chronic respiratory disease.
Prevention of COVID-19 is highly dependent on physical
social distancing (i.e., remaining at least six feet apart from
other people), as well as frequent hand-washing and sanitizing.
Persons who have been exposed to someone who has or may have
COVID-19 have been asked by international, Federal, and State
authorities to self-isolate for at least two weeks following the
potential exposure in order to slow the spread of the virus.
The United States Centers for Disease Control and
Prevention has issued guidance on the management of COVID-19 in
correctional facilities, discussing the "unique challenges for
control of COVID-19 transmission among incarcerated/detained
persons, staff, and visitors." See Interim Guidance on
Management of Coronavirus Disease 2019 (COVID-19) in
Correctional and Detention Facilities (Mar. 23, 2020),
https://www.cdc.gov/coronavirus/2019-ncov/community/correction-
detention/guidance-correctional-detention.html
[https://perma.cc/KY9V-TS9K]. If a virus as contagious as
COVID-19 were to enter a correctional facility, the risk of
transmission is high. Incarcerated individuals often bunk in
the same cell or unit and cannot realistically maintain adequate
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social distancing. Indeed, when this emergency motion to renew
the petition for relief was filed in the county court on March
24, 2020, there were already four confirmed cases of COVID-19 at
the treatment center. By the time the defendant filed his reply
brief two days later, the number had almost tripled to eleven
cases. As of the date of hearing, that number had again
increased to seventeen.
The defendant suffers from multiple chronic medical
conditions, including nephropathy, hypothyroidism, and thyroid
cancer. He also has limited mobility due to spinal issues and
relies on a wheelchair. He, therefore, is at heightened risk of
serious illness or death if he were to contract the virus.
2. Stay of execution pending appeal. Under Mass. R. Crim.
P. 31 (a), as appearing in 454 Mass. 1501 (2009), a defendant
sentenced to a term of imprisonment may seek a stay of execution
pending appeal. The stay may be sought from the judge who
imposed the sentence or, pursuant to Mass. R. A. P. 6, as
appearing in 481 Mass. 1608 (2019), from a single justice of the
court that will hear the appeal. Mass. R. Crim. P. 31 (a). The
decision whether to grant a stay is within the sound discretion
of the judge or justice. Commonwealth v. Cohen (No. 2), 456
Mass. 128, 132 (2010).
When considering the merits of a motion to stay the
execution of a sentence, a judge should consider two factors.
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First is whether the appeal presents "an issue which is worthy
of presentation to an appellate court, one which offers some
reasonable possibility of a successful decision in the appeal."
Commonwealth v. Allen, 378 Mass. 489, 498 (1979), quoting
Commonwealth v. Levin, 7 Mass. App. Ct. 501, 504 (1979). See
Cohen, 456 Mass. at 132. Second, the judge should consider "the
possibility of flight to avoid punishment; potential danger to
any other person or to the community; and the likelihood of
further criminal acts during the pendency of the appeal."
Commonwealth v. Hodge (No. 1), 380 Mass. 851, 855 (1980).
The power to stay a sentence pending appeal "may be
exercised by the sentencing judge, by a single justice of the
Appeals Court, or by a single justice of this court." Allen,
378 Mass. at 496. "Each judge or Justice has the power to
consider the matter anew, taking into account facts newly
presented, and to exercise his [or her] own judgment and
discretion." Id. In this case, a Superior Court judge and a
single justice of the Appeals Court denied the defendant's
motions to stay his sentence on February 14 and February 26,
respectively, based on the information that was available at the
time, before the COVID-19 pandemic had reached Massachusetts.
On March 23, when a different Superior Court judge denied
the defendant's motion for immediate release or, alternatively,
a stay of execution of the sentence, the COVID-19 pandemic had
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taken hold in the Commonwealth, resulting in the Governor's
order of a state of emergency. Although it is not entirely
clear from his order, the judge appears to have understood that
he did not have the authority to reconsider the defendant's
motion to stay the execution of his sentence because a single
justice of the Appeals Court had already denied that request one
month earlier.
If there had been no change in circumstances, the judge
would have been correct. However, because of the arrival of the
COVID-19 pandemic in Massachusetts, the exponential spread of
the virus, and the particular danger of transmission of the
virus to persons in custody who cannot realistically engage in
social distancing, a fundamental change in circumstances had
occurred between the date when the single justice denied the
motion (February 26) and the date when the judge decided the new
motion to stay (March 23). Therefore, it was error for the
judge not to reconsider the defendant's motion to stay execution
of sentence in light of the rapidly changing situation arising
from the COVID-19 pandemic. We therefore remand this matter to
the Superior Court to permit such reconsideration.
We also note that the health risks to persons in custody
arising from this pandemic require that we adjust the analysis
applied to motions to stay the execution of sentence pending
appeal. In ordinary times, in considering the second factor, a
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judge should focus on the danger to other persons and the
community arising from the defendant's risk of reoffense. See
Cohen, 456 Mass. at 132; Hodge, 380 Mass. at 855. In these
extraordinary times, a judge deciding whether to grant a stay
should consider not only the risk to others if the defendant
were to be released and reoffend, but also the health risk to
the defendant if the defendant were to remain in custody. In
evaluating this risk, a judge should consider both the general
risk associated with preventing COVID-19 transmission and
minimizing its spread in correctional institutions to inmates
and prison staff and the specific risk to the defendant, in view
of his or her age and existing medical conditions, that would
heighten the chance of death or serious illness if the defendant
were to contract the virus.
In addition to those factors, in this particular case, it
is important that the judge give careful consideration to the
circumstances under which the defendant would quarantine if he
were to be released. The defendant proffers that a friend has
agreed to house him if he were to be released from custody,
despite the risk that the defendant might have been exposed to
the COVID-19 virus. On remand, the defendant should address
questions raised during the appellate oral argument regarding
the actual availability of such a residence where he might be
safely quarantined and the suitability of such a residence if it
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were available. The facts regarding these matters were not
fully developed at the time of oral argument and should be
presented more fully to the motion judge. The motion judge
should recognize that, because of the pandemic, and because time
is of the essence, it may not be realistic to conduct the usual
due diligence to provide assurances of availability and
suitability, but that should not prevent the judge from relying
on the information that reasonably can be provided under the
circumstances.
Conclusion. For the reasons stated, we vacate the judge's
denial of the defendant's motion for reconsideration of a stay
pending appeal and remand the matter to the Superior Court for
proceedings consistent with this opinion. A hearing on the
remanded motion shall be conducted in the Superior Court within
forty-eight hours of the issuance of this decision.
So ordered.