Commonwealth v. Alims Myrthil, Jr.

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
21-P-878
COMMONWEALTH
vs.
ALIMS MYRTHIL, JR.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The Commonwealth appeals from an order of a judge of the
Dorchester Division of the Boston Municipal Court allowing the
defendant's motion to dismiss and from an order denying the
Commonwealth's motion to reconsider the dismissal. We reverse.
Background. On September 6, 2018, the defendant was
charged with operating a motor vehicle under the influence of
liquor (OUI), second offense, and operating a motor vehicle
after a license suspension for OUI. After some preliminary
hearings, the case was scheduled for trial on May 23, 2019.
Both parties answered ready for trial, but the case was
continued due to court congestion. On the next scheduled trial
date of July 25, 2019, the Commonwealth answered not ready for
trial because the arresting officer was unavailable. The judge
(first judge) dismissed the case without prejudice for want of
prosecution.
On November 6, 2019, the arresting officer applied for a
new complaint based on the same incident. After a clerk's
hearing on December 19, 2019, a new complaint issued for the
same charges.1 On March 6, 2020, the defendant filed a motion to
dismiss the new complaint prior to arraignment. After a hearing
on the motion, a second judge entered findings and rulings and
allowed the motion to dismiss. The Commonwealth filed a motion
to reconsider, which the judge denied "in the interest of
justice." This appeal followed.
Discussion. We review the granting of a motion to dismiss
for want of prosecution for an abuse of discretion. See
Commonwealth v. Rosa, 491 Mass. 369, 370 (2023). This case is
controlled in all material respects by Rosa. In Rosa, a judge
allowed the defendant's motion to dismiss for want of
prosecution and added a condition, requiring the Commonwealth to
file a motion to vacate the dismissal if it chose to pursue the
case in the future. See id. at 371-372. The court held that
this ruling violated art. 30 of the Massachusetts Declaration of
Rights by interfering "with the prosecutor's exclusive
1 The defendant did not appear at the clerk's hearing because he
did not receive notice of the hearing, which was mailed to an
incorrect address.
2
'discretion in deciding whether to prosecute a particular
defendant.'" Id. at 374, quoting Commonwealth v. Cheney, 440
Mass. 568, 574 (2003). The defendant contends that because one
judge dismissed the first case, and another judge dismissed the
second case, Rosa (in which the same judge dismissed both cases)
does not control. This is a distinction without a difference,
as the judge's orders here, as in Rosa, "constituted a hurdle
for the Commonwealth to overcome in order to reprosecute the
case."2 Rosa, supra.
Additionally, under separation of powers principles, a
judge may determine "only whether a sufficient legal basis
exists for issuance of a criminal complaint." Commonwealth v.
Moore, 93 Mass. App. Ct. 73, 77 (2018). Put another way, the
decision to prosecute a case lies exclusively with the executive
branch, and therefore a judge may not dismiss a legally valid
complaint over the Commonwealth's objection. See Rosa, 491
Mass. at 372. "Only an attorney authorized by the Commonwealth
to represent it has authority to declare that he will not
2 In connection with dismissing this case, the judge said that
the Commonwealth could file a motion to reconsider before the
first judge or a motion to vacate the first dismissal.
Because the time to file a motion to reconsider the first
judge's order of dismissal has long passed, see Commonwealth v.
Montanez, 410 Mass. 290, 294 (1991), citing Mass. R. A. P. 4
(b), as amended, 378 Mass. 928 (1979), and there is no statute
or rule that permits the Commonwealth to file a motion to
vacate, neither option was viable.
3
further prosecute a case in behalf of the Commonwealth." Moore,
supra at 78, quoting Commonwealth v. Hart, 149 Mass. 7, 8
(1889).
Here the judge gave several reasons for dismissing the
second complaint: (1) the defendant was unable to participate
in the clerk's hearing, (2) there were now two docket numbers
for this offense associated with the defendant, and (3) the
passage of time negatively affected the defendant's ability to
mount a defense. None of the reasons finds support in our
common law. In the circumstances of the case, the defendant was
not entitled to a clerk's hearing. See G. L. c. 218, § 35A;
Boston Globe Media Partners, LLC v. Chief Justice of the Trial
Court, 483 Mass. 80, 84-85 (2019). Even if he was, a "hearing,
under [G. L. c. 218] § 35A, is not constitutionally mandated,
and the statute provides no remedy for unjustified denial of a
hearing." Commonwealth v. Irick, 58 Mass. App. Ct. 129, 132
(2003). The defendant has cited no case and we have found none
that permits or mandates dismissal of a criminal case based on
the way the charge will appear on the defendant's criminal
record. Moreover, the statute of limitations for prosecuting an
OUI is six years. See G. L. c. 277, § 63. And there was no
evidence that the three-year delay so affected the defendant's
ability to present evidence such that he can no longer receive a
4
fair trial.3 See Commonwealth v. Corbett, 26 Mass. App. Ct. 773,
779-780 (1989). Finally, the second judge did not find that the
charges were unlawful, nor could she.
Order allowing defendant's
motion to dismiss reversed.
Order denying Commonwealth's
motion to reconsider
reversed.
By the Court (Blake, Walsh &
Hershfang, JJ.4),
Clerk
Entered: July 5, 2023.
3 Approximately one-half of the delay is attributable to the
COVID-19 pandemic and therefore was unavoidable. See Robert
LeSage, petitioner, 488 Mass. 175, 186-187 (2021).
4 The panelists are listed in order of seniority.
5