COMMONWEALTH vs. BRANDEN E. MATTIER (No. 1).
Suffolk. January 7, 2016. - May 2, 2016.
Supreme Judicial Court of Massachusetts
May 2, 2016
474 Mass. 227 (2016)
Present: GANTS, C.J., CORDY, BOTSFORD, DUFFLY, LENK, & HINES, JJ.
Practice, Criminal, Execution of sentence, Sentence.
INDICTMENTS found and returned in the Superior Court Department on August 29, 2013.
A pretrial motion to suppress evidence was heard by Kenneth W. Salinger, J.; the cases were tried before Jeffrey A. Locke, J.; and a motion for stay of execution of sentencе was considered by him.
A motion for stay of execution of sentence filed in the Supreme Judicial Court was referred to Spina, J., and was considered by him.
Rebecca A. Jacobstein, Committee for Public Counsel Services, for the defendant.
Randall E. Ravitz, Assistant Attorney General (Gina Masotta, Assistant Attorney General, also present) for the Commonwealth.
HINES, J. The defendant, Branden E. Mattier, was convicted by a jury on three indictments charging conspiracy,
The defendant appealed from his convictions and filed in the trial court a motion for stay of the execution of his sentence pending appeal. The judge denied the motion. After his appeal was docketed in the Appeals Court, the defendant filed a motion for stay of the execution of the sentence in that court. We granted the defendant‘s application for direct appellate review of his appeal, and thereafter, the defendant filed a motion for stay in this court. The matter was referred to a single justice, who denied the motion. The defendant filed this appeal from the single justice‘s order, together with a motion for an expedited ruling.2 In response to the defendant‘s motion for an expedited ruling on his appeal from the single justice‘s order denying the stay, we now address separately the merits of that aspect of his appeal.
Analysis. We review the single justice‘s order denying a motion for stay to determine (1) “whether the single justice committed error of law in declining to make an independent exercisе of discretion on the issue of the stay of execution, in place of that made by the trial judge“; and (2) whether the single justice erred in ruling that the trial judge‘s action оn the motion to stay was not an abuse of discretion. Commonwealth v. Hodge (No. 1), 380 Mass. 851, 852 (1980). The single justice and the trial judge, as they were entitled to do, denied relief without explanation. See Commonwealth v. Cohen (No. 2), 456 Mass. 128, 132-133 (2010).
When considering the merits of a motion to stay the execution of a sentence, two factors are considered: (1) whether the defendant‘s appeal presents “an issue which is worthy of presentation to an appellate court, one which offers some reasonable possibility of a successful dеcision,” Commonwealth v. Allen, 378 Mass. 489, 498 (1979), quoting Commonwealth v. Levin, 7 Mass. App. Ct. 501, 504 (1979); and (2) “whether the defendant‘s release poses a security risk,” Commonwealth v. Charles, 466 Mass. 63, 77 (2013). The first prong is a “pure question of law or legal judgment.” Allen, supra, citing Levin, supra at 505. Without in any way prejudging the merits of the defendant‘s direct appeal, we are not persuaded that he has met his burden to establish a “reasonable possibility of . . . success[ ]” such that the single
To prevail on this aspect of his appeal from the single justice‘s order, the defendant must dеmonstrate a reasonable possibility of success on his challenge to the conspiracy conviction, the crime for which the judge imposed the сommitted portion of the sentence. The defendant makes two arguments in his attempt to meet this burden: (1) the evidence supporting the conspiracy conviction was secured as the result of an unlawful arrest on the identity fraud charge and should not have been admitted at trial; and (2) the remaining evidence offerеd by the Commonwealth to prove the conspiracy charge was “virtually non-existent.” Where, as here, the success of the defendant‘s appeal from the conspiracy conviction depends in large part on the validity of the identity fraud conviction, the defendant‘s burden is to demonstrate as well a reasonable possibility of success on his appeal from the identity fraud conviction and that reversal of the identity fraud conviction vitiates the conspiracy conviction. We are not persuaded that he has done so.
The defendant contends that the conviction fails as a matter of law on two grounds: (1) the forgery of a physician‘s letter submitted as part of the fraudulent One Fund claim does not meet the statutory requirement that the defendant “pose as [another] person“; and (2) the defendant did not obtain anything of value while posing as that physician. Building on this argument, the defendant contends that the evidence seized as a result of the warrantless arrest on the identity fraud and attempted larceny charges must be suppressed. The motion to suppress was erroneously denied, sо the argument goes, because in the absence of conduct implicating the identity fraud statute, the police had no probable cause for the аrrest on that charge and the warrantless arrest for attempted larceny, a misdemeanor, cannot stand.
We conclude that regardless of the merits of the appeal from the identity fraud conviction, the denial of the stay was not an abuse of discretion where the evidence was lawfully seized on an alternative ground. More specifically, the information contained in the affidavit in support of the search warrant application established probable cause to arrest the defendant for attempted larceny and authorized the search of the defendant at the time of the arrest. In particular, the affidavit contained the following
Last, where the defendant‘s cellular telephone wаs lawfully seized, the cellular telephone text messages implicating the defendant in the conspiracy as charged were properly admitted at trial. Thus, the defendant‘s failure to make the requisite showing as to the conspiracy conviction is fatal to his claim for a stay pending appeal.
Accоrdingly, we conclude that the single justice did not err in finding that the trial judge did not abuse his discretion in denying the defendant‘s motion for stay. Nor do we discern any abuse of discretiоn by the single justice in electing not to exercise independent discretion in review of the trial judge‘s order. We therefore affirm the decision of the single justice.
So ordered.