In July, 2007, the defendant was convicted of attempted extortion, G. L. c. 265, § 25; intimidation of a witness, G. L. c. 268, § 13B; and filing a false police report, G. L. c. 268, § 6. His appeal from those convictions is the subject of our decision in Commonwealth v. Cohen (No. 1), ante 94 (2010). On April 15, 2009, a single justice of the Appeals Court allowed the defendant’s renewed motion to stay execution of sentence pending appeal. Thereafter, acting on the Commonwealth’s petition pursuant to G. L. c. 211, § 3, a single justice of this court vacated the April 15 order staying execution of the sentence. The defendant brings this appeal from the order of this court’s single justice. We vacate the order of the single justice, and reinstate the order of the single justice of the Appeals Court.
On August 10, 2007, the defendant filed a motion for a new trial, claiming that the exclusion of his friends and supporters from the jury selection proceedings at his trial violated his right to a public trial pursuant to the Sixth Amendment to the United States Constitution. On August 24, he moved to stay the execution of his sentence pending appeal. On August 27, the judge denied the motion for a stay without findings or a statement of reasons, and sentenced the defendant to concurrent State prison terms of from two and one-half to three years on the two charges of intimidation of a witness, a concurrent sentence of one year in a house of correction on the charge of filing a false police report, and a sentence of three years’ probation on the charge of attempted extortion.
On August 28, 2007, the defendant filed a notice of appeal from his convictions, and also petitioned a single justice of the Appeals Court to stay the execution of his sentence pending appeal pursuant to Mass. R. Crim. P. 31 (a), 378 Mass. 902 (1979), and Mass. R. A. P. 6, as appearing in 378 Mass. 930 (1979).
The judge denied the defendant’s motion for a new trial on June 27, 2008, and the defendant thereafter filed with the single justice of the Appeals Court a renewed motion for a stay of execution of sentence. On October 1, 2008, the single justice denied that motion, determining that “questions of law and fact leave the defendant short of a ‘reasonable possibility of success’ necessary for a stay of execution of the remainder of his sentence.” However, he concluded that the public trial question raised by the defendant presented “a new issue of a constitutional nature warranting expedited appellate treatment,” and allowed the defendant’s motion for expedited panel review of his order.
On April 8, 2009, in a decision issued pursuant to its rule 1:28, a panel of the Appeals Court vacated so much of the single justice’s order as denied the defendant’s renewed motion for a stay on the ground that it failed to present a meritorious appellate issue. The panel allowed the defendant to seek clarification from the single justice on the security issue. Commonwealth v. Cohen, 74 Mass. App. Ct. 1103 (2009). The defendant filed a motion before the single justice of the Appeals Court “for clarification or for decision on security,” and again sought a stay of sentence pending appeal. On April 15, the single justice allowed the defendant’s motion for a stay. He concluded that the decision by the panel of the Appeals Court satisfied the requirement of presenting an issue with a chance of success on the merits, and that with respect to the issue of security, the defendant did not pose a risk to the community or a risk of flight to avoid punishment.
The Commonwealth filed a petition pursuant to G. L. c. 211, § 3, in the county court for relief from the stay of sentence ordered by the single justice of the Appeals Court. On April 30, 2009, a single justice of this court allowed the petition and vacated the order of the single justice of the Appeals Court. The single justice read the court’s decision in Commonwealth v. Hodge (No. 1), 380 Mass. 851, 855 (1980) (Hodge), to mean that in ruling on a motion for stay of sentence pending appeal, a single justice did not have authority to review de nova the issue of security. The defendant appealed to this court from the order of the single justice.
Discussion. Rule 6 (a) (1) of the Massachusetts Rules of Appellate Procedure directs that Mass. R. Crim. P. 31 (a) is to govern a motion to stay execution of a sentence pending appeal. Rule 31 (a) states in relevant part:
“If a sentence of imprisonment is imposed upon conviction of a crime, the entry of an appeal shall not stay the execution of the sentence unless the judge imposing it or a judge of the Supreme Judicial Court or the Appeals Court determines in his discretion that execution of said sentence shall be stayed pending the final determination of the appeal” (emphasis added).6
This rule, like its statutory predecessor, G. L. c. 279, § 4, “confers discretionary power to stay the execution of sentence pending appeal. The power may be exercised by the sentencing
Two considerations govern the discretion that each judge or Justice may exercise in reviewing a stay request: security and likelihood of success on appeal. Hodge, 380 Mass, at 854-855. As to the former, the single justice of this court correctly pointed out that in Hodge, we stated that security considerations “involve determinations of fact and the exercise of sound, practical judgment, and common sense” and that the “exercise of discretion by the trial judge will be upheld unless it is shown that he abused that discretion.” Id. at 855. Standing alone, this language would appear to support the result the single justice reached. When it is considered in the context of the entire decision in Hodge, however, we conclude that the quoted language has a different meaning. In Hodge, supra at 853, the Commonwealth had argued that the single justice, in ruling on its motion to vacate a trial judge’s order staying a sentence pending appeal, was required to undertake an independent exercise of discretion and to consider de nova the issue whether a stay should be granted. The court in Hodge rejected the Commonwealth’s position, concluding that “the single justice was not required to make an independent exercise of discretion and therefore properly chose to rule merely on whether the trial judge abused his discretion by granting the stay.” Id. at 852. Hodge, therefore — which quotes with approval the language in Allen that we have earlier quoted, see Hodge, supra at 854 — stands for the proposi
In the present case, the trial judge, as she was entitled to do, see Allen, 378 Mass. at 493, did not state any reasons as to why she denied the defendant’s motion for a stay. She may have done so solely on the view that his public trial claim offered no possibility of success on appeal. Supporting that possibility, at the end of trial, the judge rejected the Commonwealth’s argument that the defendant posed a danger to his community, releasing him with conditions and GPS monitoring for approximately one month prior to sentencing. Particularly without any findings by the trial judge to which he could defer, the single justice of the Appeals Court was certainly entitled to exercise his own discretion to take a fresh look at whether the defendant posed a security risk. It constituted error of law for the single justice of this court to vacate the order of the single justice of the Appeals Court on the ground that the latter did not have the legal authority to do so.
Conclusion. The order of the single justice vacating the order
So ordered.
On October 9, 2009, this court issued, without opinion, an order in this
The other conditions — most of which had been imposed as conditions of the defendant’s pretrial release — included a requirement that the defendant remain in the town of Stoughton, surrender firearms and permits, stay away from the Stoughton police department, and refrain from intimidating or contacting witnesses or police officers.
We apply the versions of Mass. R. Crim. P. 31 and Mass. R. A. P. 6 in effect when the relevant events occurred. Effective October 1, 2009, amendments to these rules changed the procedure available to the parties after a trial judge acts on a motion for a stay. See Mass. R. Crim. P. 31, as amended, 454 Mass.
Additional proceedings not determinative of the issues raised here took place before single justices of both the Appeals Court and this court.
On the question of security, the single justice considered the factors set
See note 3, supra.
We read the court’s discussion of security considerations in Hodge, see Hodge, 380 Mass. at 855, to mean only the following. Of the two considerations relevant to a stay pending appeal, a single justice will more likely decline to exercise his own, independent discretion on the issue of security, which involves factual determinations, sound judgment, and common sense. The second consideration, likelihood of success on the merits of the appeal, presents “a pure question of law or legal judgment.” Id., quoting Commonwealth v. Allen, 378 Mass. 489, 498 (1979).
Under the rules in effect when the events at issue occurred, Mass. R. Crim. P. 31 (a), 378 Mass. 902 (1979), the single justice of this court could have decided to deny the defendant a stay pending appeal based on his own independent exercise of discretion, review of the record, and determination