DocketNumber: No. 10-P-815
Citation Numbers: 82 Mass. App. Ct. 123
Judges: Cypher
Filed Date: 7/11/2012
Status: Precedential
Modified Date: 6/25/2022
The defendant, Douglas E. Weed, was indicted by a grand jury in July, 2007, on eight sex offenses, and was arraigned on those charges on August 27, 2007. After arraignment, the charges were bifurcated; five counts were tried separately and are not part of this appeal.
Discussion. When a criminal defendant is not tried within the twelve-month time limit set forth under rule 36(b)(1)(C), he is entitled to dismissal of the charges without being required to demonstrate prejudice. See Mass.R.Crim.P. 36(b)(1)(D); Commonwealth v. Rodgers, 448 Mass. 538, 539-541 (2007). Dismissal is not required, however, if the delay comes within one of the “[ejxcluded [pjeriods” set forth in rule 36(b)(2), or if the defendant “acquiesced in, was responsible for, or benefited from the delay.” Commonwealth v. Spaulding, 411 Mass. 503, 504 (1992). Here, the judges who ruled on the defendant’s motions decided them “without taking any testimony and instead relied on the docket and other documentation submitted by the parties, all of which we have before us[; therefore,] we are in as good a position as the judge[s] below to decide whether the time limits imposed by [rule 36] have run.” Commonwealth v. Butler, 68 Mass. App. Ct. 658, 661 (2007), quoting from Barry v. Commonwealth, 390 Mass. 285, 289 (1983). “[W]hile we will give deference to the determination made by the judge below, we may reach our own conclusions.” Barry v. Commonwealth, supra at 290.
In the present case, the defendant was arraigned on August
We briefly summarize the includable 365 days. For purposes of analysis the days can be divided into three periods. The first two periods were determined by the motion judge in his ruling on the defendant’s motion to dismiss filed on February 23, 2009. The initial period began the day after arraignment, August 28, 2007,
In addition to these includable days, the defendant argues on appeal, as he did below, that the periods during which his case was on the “status list” or on the “trial list” must also be included in the rule 36 time. The defendant’s case was on the status list or trial list without impediment to trial from March 31, 2009, until May 26, 2009, a period of fifty-seven days, and from October 8, 2009, until November 1, 2009, a period adding twenty-five more days to the calculus. Together, these two periods reflect an additional eighty-two days of delay.
The trial judge considered these periods in ruling on the defendant’s third motion to dismiss. He decided that because the defendant had not objected to being placed on the status list or to being placed on the trial list, and because he had not
The judgments of conviction are reversed and the verdicts set
So ordered.
The trial on those five charges began on March 10, 2009 (two counts of statutory rape and three counts of indecent assault and battery on a child over fourteen years of age); guilty verdicts on all five counts were returned on March 12, 2009; and the defendant was sentenced on March 16, 2009, to two terms of ten to fifteen years to be served concurrently, and three terms of four to five years to be served concurrently with the ten- to fifteen-year sentences. The defendant appealed to this court, and we affirmed in an unpublished memorandum and order pursuant to our rule 1:28. See Commonwealth v. Weed, 79 Mass. App. Ct. 1119 (2011).
The Commonwealth entered a nolle prosequi on the charge of failing to register as a sex offender.
The defendant was sentenced to two terms of twelve to fifteen years in State prison to be served concurrently with each other but from and after the sentences imposed on the five counts tried earlier. See note 1, supra.
“In computing any time limit other than an excluded period, the day of the act or event which causes a designated period of time to begin to run shall not be included. Computation of an excluded period shall include both the first and the last day of the excludable act or event.” Mass.R.Crim.P. 36(b)(3).
In February, 2008, a “final” pretrial conference was scheduled for August 20, 2008. That date passed as a result of an agreement reached by the parties on August 5, 2008, that the conference should be rescheduled for September 3, 2008. See generally Barry v. Commonwealth, 390 Mass, at 296 n.13. Because the defendant agreed to continue this scheduled date, which marked the end of a clearly includable period under the rule, the time thereafter, between the scheduled date and the date the conference actually occurred, is excluded. See Commonwealth v. Fleenor, 39 Mass. App. Ct. 25, 27-28 (1995)
In deciding the first motion to dismiss, the motion judge ruled that this period included only 223 days, apparently omitting February 29, 2008, from the calculation. On appeal, the Commonwealth properly agrees that this period includes 224 days, not 223 days as determined by the motion judge.
The trial judge mled that it would not “be appropriate” to include these two weekend days that followed the Thanksgiving holiday because the defendant had obtained a protective order from trial that included Friday, November 27, 2009. However, Mass.R.Crim.P. 46, 378 Mass. 922 (1979), like Mass.R.Civ.P. 6, 365 Mass. 747 (1974), provides that such weekend days and holidays shall be included in calculations of time. There is no support in rule 36 or the decisional law for excluding days merely because they fall on a weekend, be it a holiday or otherwise.
The trial judge also noted that from March 31, 2009, until May 27, 2009, deoxyribonucleic acid (DNA) testing had not been completed, and counsel was facing a serious claim from the defendant that ultimately resulted in a motion to withdraw being filed on May 27, 2009. The judge concluded that the defendant benefited from this delay. The difficulty with the judge’s conclusions is the lack of evidentiary support that the defendant had any interest in waiting for the DNA results or that he and his attorney were not prepared to try the case during this period. A motion to withdraw will certainly toll the running of rule 36 time, but the period preceding the motion is not similarly excluded. See, e.g., Commonwealth v. Judd, 25 Mass. App. Ct. 921, 923 (1987). That the defendant had already filed one motion for a speedy trial in January, 2009, followed by a motion to dismiss for failure to provide a speedy trial that was decided before the period at issue, undercuts any notion that he was benefiting from or acquiescing in any delay. Moreover, even if we were to exclude this period, it would not alter the result.