The background was as follows. “In 2013, the defendant … was indicted on two counts alleging aggravated statutory rape pursuant to G.L. c.265, §23A. In addition, he was indicted as a habitual criminal pursuant to G.L. c.279, §25(a), with two drug offenses on his prior record as the predicate convictions…. As G.L. c.265, §23A, carries a maximum penalty of life in prison, the defendant was exposed to a mandatory life sentence for a conviction on the aggravated rape charges. In 2015, the defendant accepted a negotiated plea agreement under which he pleaded guilty to lesser charges without the habitual offender enhancements, and received a prison sentence of from six to eight years…. In 2018, the defendant was identified as a so-called ‘Farak defendant.’ His conviction of possession with intent to distribute heroin, based on certificates of drug analysis … signed by Farak, was, therefore, dismissed with prejudice. As the vacated conviction was one of the two predicate offenses relied on for application of the habitual criminal enhancement, the defendant no longer qualified as a habitual criminal. Before seeking to withdraw his guilty plea, which was negotiated in circumstances that now no longer exist, the defendant requested a preliminary ruling from the Superior Court judge that if he were to succeed in withdrawing his plea, he would not be subject to a harsher punishment as the result of a reprosecution of the rape charges than the prison sentence that he received pursuant to the plea agreement.” The judge then reported the following question: “‘Do the protections from harsher punishment established for “Dookhan defendants” [i.e., those whose prosecutions were tainted by the misconduct of Annie Dookhan] in [Bridgeman v. District Attorney for the Suffolk Dist., 471 Mass. 465 (2015) (Bridgeman I),] apply to ‘Farak defendants’ who are challenging pleas based upon Farak-related grounds relating to G.L. c.279, [§25(a)], predicate offenses?’”

In response to the judge’s question, the SJC first addressed the remedy it had fashioned for the thousands of Dookhan defendants. The Court stated, “[W]e ultimately declined to vacate [those defendants’] convictions wholesale, reasoning that as ‘serious as [Dookhan’s conduct] was, [it] did not result in irremediable harm’ to defendants’ opportunities to obtain fair trials (quotation and citation omitted). Bridgeman v. District Attorney for the Suffolk Dist., 476 Mass. 298, 322 (2017) (Bridgeman II). Further, ‘given the absence of any evidence of misconduct by a prosecutor or an investigator, [we did not] place Dookhan’s misconduct in the category that requires a stronger deterrent than a new trial to avoid the risk of repetition.’ Id.” “[W]e also held that any Dookhan defendant who succeeded in securing a new trial could not be charged with a more serious offense, nor receive a longer sentence than originally imposed (Bridgeman cap). Bridgeman I, 471 Mass. at 477.” Turning to the remedy for Farak defendants, the Court noted that Farak’s misconduct “was larger in scope than Dookhan’s wrongdoing” and “was compounded by the wrongful actions of members of the Attorney General’s office, who failed to investigate thoroughly Farak’s wrongdoing and later deliberately withheld information…. Consequently, in contrast to the remedy created for Dookhan defendants, we determined that for Farak defendants” the proper remedy was dismissal with prejudice of all the drug convictions that had been tainted by Farak’s misconduct. The Court then addressed the “category of Farak defendants for whom the dismissed convictions nevertheless continue to have an adverse effect. That is, there are some defendants, like the defendant here, for whom a Farak conviction was counted as a predicate for enhanced sentencing on subsequent charges prior to its dismissal. As such, the now vacated convictions exposed this category of defendants to enhanced penalties…. [S]uch a result cannot stand.” “[J]ust as we concluded that a cap on subsequent charges and sentences was appropriate for Dookhan defendants …, we now conclude that a similar cap is required in the case of Farak defendants who have been negatively affected, albeit indirectly, by the use of the convictions, tainted by Farak, as predicates for enhanced sentencing.” “[A]ny potential sentence on retrial for a defendant for whom a Farak conviction served as a predicate offense for an enhanced penalty must be capped at the sentence originally imposed when the defendant initially pleaded guilty.” “We further conclude that this cap must be applied retroactively for defendants who have already withdrawn such pleas and subsequently pleaded guilty to more serious charges, who were convicted of more serious charges at a trial, or who received longer sentences than they had for their first pleas.”

If you or a loved one is in a similar situation to the defendant in this case, you deserve the same protections. Attorney Daniel Cappetta is an experienced and skilled attorney who will help you figure out what steps you can take to make sure that you have not been treated unjustly.  Contact him today for a free consultation.

The background was as follows. “The victim … was fatally shot at a baby shower. The [event] was attended by roughly one hundred guests (including the defendant)…. As midnight approached and the event concluded, the guests began to gather outside. An argument then broke out” and “escalated into physical violence.” “[The victim] was shot in the back and later died of his injuries.” The defendant was indicted for murder. “His first trial began in May of 2006. A mistrial was declared because, after more than a week of deliberation, the jury were still unable to reach a verdict. After the first trial, the defendant was appointed new counsel.” A year after the first trial, the defendant was tried again and was convicted of first-degree murder. “The principal factual issue at each trial was whether there was sufficient evidence to identify the defendant as the shooter.” “At both trials, the Commonwealth relied on the testimony of two eyewitnesses to identify the defendant as the” perpetrator. During the first trial only, however, an alibi witness [Sanchez] testified that he had been inside a building with the defendant when the shooting took place on a street outside the building.” After his conviction, the defendant filed a motion for a new trial, “arguing that his second attorney’s failure to call [Sanchez as a witness] or even [to] investigate [him] amounted to constitutionally ineffective assistance of counsel.” The motion was allowed and the Commonwealth appealed.

In its decision favorable to the defendant, the SJC noted that “although successor counsel was aware of Sanchez and that he had testified at the first trial” — counsel possessed the transcripts of that trial — “she made no attempt to locate or to speak with [Sanchez], either personally or through a private investigator, nor did she discuss his testimony with the defendant’s previous counsel. As a result, successor counsel lacked the ability to determine whether calling Sanchez as a witness [at the second trial] might have bolstered the defendant’s case, or weakened that of the prosecution.” In the Court’s view, where “Sanchez provided testimony contradicting the Commonwealth’s theory of the case at the defendant’s first trial, and a mistrial was declared,” “at least some credible explanation from successor counsel was required as to why Sanchez was not called at the second trial. [However,] [n]o such explanation was given” by successor counsel at the hearing on the defendant’s motion for a new trial. The Court concluded that if Sanchez had been called as a witness at the second trial, his “affirmative testimony that the defendant could not have been the shooter might have had a significant impact on the jury’s deliberations,” especially where the Commonwealth’s identification evidence was far from overwhelming.

A comprehensive and thorough investigation is the cornerstone of a high quality defense in any criminal matter.  If you or a loved one is charged with a crime, you will need an experienced attorney to act on your behalf. Attorney Daniel Cappetta knows how to properly investigate a case, build a defense, and zealously advocate on behalf of his clients. Call him for a free consultation today.

The basic facts were as follows. “[T]wo Boston police officers on patrol in a marked police cruiser observed a Honda Accord [being driven] with what appeared to be a defective brake light…. From the vehicle’s registration number, the officers discovered that its registered owner, the defendant, had an outstanding misdemeanor default warrant…. The officers then stopped the vehicle…. The defendant was the driver of the vehicle, and he was accompanied by one front seat passenger. The officers asked both the defendant and his passenger for identification. Upon conducting computer checks on the information provided, the officers learned that the passenger’s driver’s license was valid, he had no outstanding warrants, and he was not a suspect in any other crimes; further, he did not appear to be under the influence of any intoxicating substances. The passenger was polite and cooperative with police. One of the officers informed the defendant that, due to the default warrant, he was under arrest, and his vehicle would be towed. The officers ordered both men out of the vehicle. The defendant did not request that his passenger assume custody of the vehicle, and the officer did not offer this alternative. As required by Boston Police Department policy, in preparation for impoundment, one of the officers [conducted an inventory search of] the vehicle. The officer found a firearm under the driver’s seat…. [T]he defendant said that the firearm was his. The defendant was taken to the police station in a police cruiser…. The passenger … was allowed to leave the scene.”

After the issuance of a complaint charging the defendant with multiple firearm violations, he filed a motion to suppress the evidence seized during the inventory search, as well as his subsequent statements to police, “on the ground that both were fruits of an unlawful search.” A judge allowed the motion and the Commonwealth filed an interlocutory appeal.

In its decision in favor of the defendant, the SJC noted that “‘[a] lawful inventory search is contingent on the propriety of the impoundment of the [vehicle].’ [Commonwealth v. Oliveira, 474 Mass. 10, 13 (2016),]…. [A]t issue here is whether impoundment was ‘reasonably necessary.’ Oliveira [] at 14. The propriety of an impoundment turns on whether police reasonably could have concluded they had no lawful, practical alternative.” Here, the judge properly found “that the officers were aware that the defendant’s passenger lawfully could have assumed custody of the vehicle, yet nonetheless told the defendant that his vehicle ‘would be towed.’ The judge also found that police did not consider the alternatives to impoundment available under the [Boston Police Department’s] motor vehicle inventory policy. One option enumerated in the policy when officers arrest a driver is to ‘leave [the vehicle] with a person having apparent authority to assume control of it.’…. Unlike when a vehicle is impounded, no inventory search is conducted in those circumstances, because there is no risk of false claims against the police or the towing company.” The SJC “conclude[d] that, where [as here] officers are aware that a passenger lawfully could assume custody of a vehicle, it is improper to impound the vehicle without first offering this option to the driver. Absent such an inquiry, the police cannot conclude that impoundment is ‘reasonably necessary.’ Because no such inquiry was made here, the impoundment of the defendant’s vehicle was improper. [Therefore,] because the validity of an inventory search turns on the propriety of the underlying impoundment, the search was unlawful.”

Impounding a vehicle and using that as an excuse to conduct an inventory search is a common way for police to claim that they have a lawful basis to enter and search a car. As this case shows, however, there are limits to this claim of lawfulness. If you or a loved one is facing criminal charges because of a search similar to the one conducted in this case, you may well have an argument that any evidence recovered as a result of the search should be suppressed. Attorney Daniel Cappetta has successfully represented clients at motion to suppress hearings many times. Put his expertise to work for you and call him for a free consultation today.

The background was as follows. In response to a report of a domestic altercation at the home of the defendant’s girl friend, the police arrested the defendant for assault and battery and related charges. The police “found no drugs [at the scene,] but seized [drug] paraphernalia and the defendant’s three cell phones.” “Six months after the cell phones were seized, police applied for and obtained a warrant to search them for evidence of drug offenses. Shortly thereafter, the [SJC] decided in Commonwealth v. White, 475 Mass. 583, 590- 591 (2016), that probable cause to seize or search a cell phone requires, among other things, ‘information establishing the existence of particularized evidence likely to be found there.’ The [SJC] further ruled that, when a cell phone or other item is seized without a warrant and police later obtain a warrant to search it, the search is unreasonable unless the Commonwealth shows, among other things, ‘that the delay between the seizure and the filing of the application for a search warrant was reasonable.’ Id. at 593. Based on White, the defendant here [filed a motion] to suppress the evidence found in the search of his cell phones.” A judge allowed the motion and the defendant subsequently pleaded guilty to various offenses. He was sentenced to concurrent ten-year terms of incarceration. “At the time of sentencing, the defendant moved for the return of his cell phones, asserting that they were no longer needed as evidence…. A judge allowed the motion and ordered that the cell phones, [which were] being held by the … police, be returned to the defendant or his authorized representative. More than eight months later, the Commonwealth filed a ‘motion for clarification’ of the order that the cell phones be returned. The motion stated that, when the search warrants for the cell phones had been executed, two of the cell phones were found to contain ‘numerous and sexually explicit photographs and videos of the defendant and [the victim].’ The Commonwealth sought approval, before returning those cell phones, to wipe their memories ‘by engaging the factory reset option’ to ensure that ‘no sexually explicit photographs or videos of the victim [could] be given to the defendant’s representatives for possible retaliation for her participation in the prosecution.’” A judge (other than the one who had ordered that the cell phones be returned to the defendant) “allowed the Commonwealth’s request to first ‘wipe’ all data from two of the … phones in order to erase” the video recordings and photographs that the Commonwealth had cited. “The judge expressed concern that, if the cell phones were returned without being wiped, the materials at issue would be available to the defendant’s brother or others, who might disseminate them, intentionally or otherwise, and thereby harm the victim.” The judge stated, “‘I haven’t seen [that the defendant has] a compelling need [for] the information” on the phones, “particularly given the fact that he won’t even have access to [them] for some period of time.’…. Allowing the cell phones to be wiped would ‘avoid[] a risk [potential harm to the victim] which is far greater than the perceived needs of the defendant.’…. The defendant appealed and obtained a stay of any data erasure pending appeal.”

In its decision, the Appeals Court “conclude[d] that the judge erred in these circumstances in ordering the cell phones wiped before their return.” The Court stated, “We … begin with a strong presumption that the defendant is entitled to the return of his property — without regard to whether he has shown any need for it — and then ask whether the Commonwealth has shown a proper legal basis for refusing to return it.” “The Commonwealth made no claim that any data on the cell phones was still needed as evidence, was contraband, was the fruit of any crime, or was the property of the victim or anyone other than the defendant.” The Court disapproved of “[t]he judge’s statement that wiping the cell phones would ‘avoid[] a risk which is far greater than the perceived needs of the defendant[.]’” In the Court’s view, that assessment “was not a finding of fact that such harm was in any sense likely. Rather, it was an interest-balancing conclusion — one that erroneously put the burden on the defendant to show a need to possess what was already his.” “‘[T]he concept of private property represents a moral and political commitment that a pervasive disposition to balance away would utterly destroy. The commitment is enshrined in our Constitutions.’ Goulding v. Cook, 422 Mass. 276, 278 (1996).”

It is of crucial importance that all of a defendant’s rights be protected, regardless of whether they concern issues that arise prior to, during, or after a criminal case.  If you or a loved one had property seized in the course of a criminal investigation or case, you should be afforded the appropriate protections.  Contact Attorney Daniel Cappetta for assistance – he zealously represents his clients, at all stages of their criminal case.

The background was as follows. The defendant stabbed her fiancé, cutting his carotid artery. The Commonwealth presented evidence to the grand jury “that the defendant and the victim were fighting just prior to the stabbing,” and that the defendant had manifested a “violent temper and controlling behavior toward — and physical abuse of — the victim” during their relationship, “including a prior occasion [on] which the defendant stabbed the victim.” “The Commonwealth also presented [to the grand jury] substantial evidence that could have been seen as exculpatory, comprising testimony from witnesses who observed bruises on the defendant, including on the night of the killing; statements from the defendant regarding the victim’s abusive behavior toward her during their relationship; and the defendant’s statement that she acted in self-defense.” The grand jury indicted the defendant for murder and assault and battery with a dangerous weapon. The defendant filed a motion “to dismiss the murder charge, arguing … that the Commonwealth had failed to provide the grand jury with instructions regarding the mitigating circumstances that it presented.” The judge “allowed the motion, concluding that although there was probable cause to return an indictment for murder, the Commonwealth’s failure to provide instructions on the mitigating factors impaired the integrity of the grand jury proceedings.” The Commonwealth appealed.

In its decision, the SJC stated, “[I]n Commonwealth v. Walczak, 463 Mass. 808 (2012), we held that where the Commonwealth seeks to indict a juvenile for murder, and substantial evidence of mitigating circumstances or defenses (other than lack of criminal responsibility) is presented to a grand jury, the Commonwealth must instruct the grand jury on the elements of murder and on the legal significance of those mitigating circumstances or defenses…. We are called on in this case to determine whether the Commonwealth’s failure to provide [such] instructions to the grand jury … requires dismissal of [a murder] indictment against an adult.” “As reflected in this plurality opinion and in the [three] separate opinions that follow, six Justices are of the view that it is generally advisable for prosecutors to instruct grand juries on the elements of lesser offenses and defenses whenever such instructions would help the grand jury to understand the legal significance of mitigating circumstances and defenses. The Justices disagree, however, as to the consequences of failing to provide such instructions. The three Justices who subscribe to this plurality opinion would hold that the integrity of a grand jury is impaired, and the dismissal of an indictment due to the lack of instructions is therefore appropriate, … only where the exculpatory evidence presented to the grand jury was so compelling that giving instructions on that evidence probably would have resulted in the grand jury returning a no bill. Two Justices … would hold that a prosecutor’s failure to give a grand jury appropriate instructions on mitigating circumstances and defenses ought to result in the dismissal of an indictment if the absence of instructions probably influenced the grand jury’s decision to return an indictment for murder as opposed to manslaughter or a no bill. Two other Justices … would hold that the integrity of a grand jury is impaired by a prosecutor’s failure to give instructions … only if and when the facts known to the prosecutor clearly establish that the instruction would result in a complete exoneration, yet the prosecutor withholds appropriate instructions.” In all, “five Justices … agree that, here, the indictment should not have been dismissed.” The Court noted that “as a matter of best practices, instructions on both defenses and mitigating circumstances should be provided to grand juries, including instructions that might possibly affect the decision whether to indict for manslaughter as opposed to murder…. However, the operative question on a motion to dismiss an indictment is whether the integrity of the grand jury proceedings has been impaired, not whether a prosecutor has conformed to the best practices, and the question whether the proceedings have been impaired is determined only by asking whether, had there been appropriate instructions, the grand jury would have returned no indictment at all.”

Although the ultimate result in this case is disappointing, the fact that the prosecutor’s conduct was challenged, and that the court specifically stated that the prosecutor did not conform to best practices, is encouraging and may result in a different outcome in the future. Attorney Daniel Cappetta is a former prosecutor, and has been practicing criminal defense for many years. He knows the ins and outs of both sides of the courtroom and will make sure that the Commonwealth’s conduct is properly held in check and challenged whenever appropriate, so that his clients get the best outcome possible. Call him for a free consultation today.

The background was as follows. “The defendant pleaded guilty in November 2012 to two charges of possession of child pornography and one charge of failure to register as a sex offender. He was sentenced to a term of incarceration on the child pornography convictions and five years’ probation on the failure to register conviction. A special condition of his probation was that he ‘not possess pornography.’ In May 2014 the probation department served the defendant with a surrender notice alleging that he violated several of his probation conditions. After an evidentiary hearing… the judge made oral findings that the defendant twice failed to report to probation and that he possessed pornography…. Finding the defendant in violation on these grounds, the judge revoked his probation.” On appeal, “[t]he defendant argue[d] that he was not on fair notice that the materials he possessed [photographs and written materials] qualified as pornography in violation of the special condition.”

In its decision affirming the judge’s revocation order, the Appeals Court “conclude[d] that the defendant had fair warning that at least one of the categories of materials he possessed — explicit stories describing the rapes of young children — constituted pornography in violation of the special condition.” However, the Court “agree[d] with [the defendant’s] contention that the judge’s finding of failure to report [to probation officers on two occasions] rested on unreliable hearsay.” The Court explained that “[t]he evidence on this issue consisted of the testimony of a probation officer [Loughlin] reading from the notes of another probation officer [Lydon]. The notes themselves were not admitted in evidence. Loughlin testified as follows: ‘[Lydon] was able to determine from a contact with the Worcester County Sheriff’s Office that around April 18th, [the defendant] was in custody of the Connecticut authorities on [an] outstanding warrant. [Lydon] had subsequent conversations with the interstate compact unit and Connecticut, and later determined that [the defendant] was released from incarceration in Connecticut and failed to report. Didn’t report on April 18, 2014. And then, after arranging with Connecticut to notify [the defendant] that he needed to report to probation forthwith, on April 1st, 2014, according to Connecticut authorities, [the defendant] was due to report the next day, on the 2nd, and failed to report on that day.’”

The Appeals Court opined “that Loughlin’s testimony, which was multileveled hearsay, was not substantially reliable…. [T]he problem … is that Lydon did not have direct knowledge about the defendant’s failure to report in Connecticut. Instead of reporting facts observed by law enforcement officers, Lydon’s notes provide unexplained conclusions. The evidence does not establish who in Connecticut told the defendant that he had to report, or whether he was even told to report on April 18, 2014…. Moreover, the hearsay statements were internally inconsistent” as to the date on which the defendant allegedly failed to report. “The hearsay statements therefore did not bear sufficient indicia of reliability and trustworthiness to obviate the need for confrontation” at the probation revocation hearing. “As this was the only evidence of the defendant’s alleged failure to report, the Commonwealth did not prove by a preponderance of the evidence that the defendant violated his probation on this basis.”

Regarding the parties’ dispute as to whether the conditions of probation provided fair warning to the defendant about possession of pornography, the Appeals Court advised that “[t]o the extent [that] judges in future cases find it appropriate to impose a no-pornography condition, they should endeavor to provide more guidance as to what types of material would qualify as pornographic. For example, the probation order could incorporate or borrow from the definitions of child pornography … set out in G.L. c.272, §29C, or 18 U.S.C. §2256(8)…. The probation order could also ‘clarif[y] whether it extended [to] non-visual materials.’ [United States v.] Loy, [237 F.3d 251, 267 (3d Cir. 2001)].”

Whether a probation officer has sufficient evidence to prove that a violation of probation has occurred has significant consequences, including the possibility of incarceration.  If you or a loved one is facing a probation violation hearing, it is crucial that you have an attorney who can assess the strength of the evidence levied against you, explore any weakness or questions about the admissibility of that evidence, and advocate for a favorable sentence in the event that a violation is ultimately found.  Attorney Daniel Cappetta has successfully represented clients many times at probation violation hearings.  Call him today for a free consultation.

The background was as follows. The Norfolk case stemmed from four incidents in January and February, 2012, in which the defendant broke into residences in Brookline and stole various valuable items. The Middlesex case stemmed from two incidents in February, 2012, in which the defendant broke into residences in Cambridge and stole various valuable items. In due course, police officers arrested the defendant at his residence and, pursuant to a search warrant, seized items that had been stolen from the burglarized homes. The defendant was held in pretrial custody following his arrest. After a jury trial in the Norfolk case, the defendant was convicted of several counts and “received a sentence of six to eight years in State prison … and … 733 days of jail credit for the time he was held awaiting trial. Following a subsequent jury trial in the Middlesex case, the defendant was convicted of two counts…. He received [concurrent] ten-year State prison sentence[s]” on those convictions. Moreover, “[t]he defendant’s sentences in the Middlesex case were to run concurrently with his sentences in the Norfolk case.” Subsequently, “the defendant moved to correct the mittimus on the Middlesex case, seeking to have the jail credit on the Norfolk case apply to the subsequent Middlesex case.” The motion was denied and the defendant appealed.

In its decision affirming the denial of the defendant’s motion to correct the mittimus, the Appeals Court noted that pursuant to G.L. c.279, §33A, “a defendant is entitled to credit for time spent awaiting trial on an offense. However, a defendant is not entitled to jail credit for time spent awaiting trial if he is already serving a committed sentence for unrelated offenses…. A defendant in custody awaiting trial on multiple unrelated cases is entitled to apply the jail credit to only one case; however, a judge has discretion to award jail credit to multiple cases upon a timely request…. The key consideration in this analysis is fairness to the defendant.” In the Court’s view, “[t]his case hinge[d] on whether the Norfolk and Middlesex [prosecutions were] related for purposes of applying jail credits.” “The defendant contend[ed] that the [two prosecutions] were related because they stemmed from a ‘crime spree’ that involved a common scheme, and thus he was entitled, as a matter of law, to have the [Norfolk] jail credits applied to the Middlesex case, too.” The Court concluded that “the Norfolk and Middlesex cases were not related for purposes of applying jail credits.” “[T]he [defendant’s] convictions did not involve a single occurrence or arise out of the same incident. Instead, the defendant’s conduct involved discrete burglaries on different days, at different homes, in different cities and towns, and with different victims…. Furthermore, the defendant cites no authority for the proposition that the house breaks and thefts were related for purposes of awarding jail credits because they involved a similar scheme and occurred over a two-week period.”

In the event you or a loved one has been convicted of a crime and sentenced to a period of incarceration, the issue of jail credits is a critical one.  While jail credits may be a straightforward calculation in some cases, where a defendant has been sentenced on multiple dockets, is facing a probation violation and a new case, or receives sentences in different counties, he or she may face similar concerns to those raised in this case.  Attorney Daniel Cappetta works hard to make sure his clients obtain the best outcome possible – whether that is in relation to litigating an open case, fighting to make sure his clients obtain the jail credits they deserve, or arguing issues on appeal. Put his skill and experience to use for you and call him today for a free consultation.

The background was as follows. In 2010, the defendant pleaded guilty to two counts of distribution of cocaine and was sentenced to a term of incarceration. “In addition, he paid a drug analysis fee of $150, which was imposed pursuant to G.L. c.280, §6B. [Subsequently,] [h]e filed a motion for a new trial, seeking to withdraw his guilty plea due to the misconduct of Sonja Farak, a [state laboratory] chemist … who analyzed the substances seized in his case…. That motion was initially denied, but ultimately, after the defendant was released at the end of his sentence, the indictments were dismissed with prejudice on the Commonwealth’s motion. The defendant thereafter filed a motion seeking a refund of fees associated with the vacated convictions, namely, the drug analysis fee and certain fees incurred on the inmate account he was obligated to maintain while he was incarcerated. See G.L. c.124, §1(u).” The motion was denied and the defendant appealed.

In its decision, the SJC stated “that the same due process principles that underlie our decision in [Commonwealth v. Martinez, 480 Mass. 777 (2018)] … require a refund of the [defendant’s] drug analysis fee.” “The overriding principle is that where a defendant has been ordered to make a payment because of a conviction, the invalidation of that conviction erases the State’s claim to that payment, and any amount paid must be restored to the defendant as a matter of due process’ (emphasis added). Martinez[] at 785.” Regarding the defendant’s motion for a refund of his inmate account fees, the SJC ruled that “neither [G.L. c.278, §14, which pertains to the refunding of account fees,] nor due process requires that those fees be refunded.” The Court explained that the statute only applies to “individuals in pretrial status who are eventually released without having been found guilty of any offense. The statute does not apply to those who, like the defendant here, were convicted of one or more offenses” and were serving their sentences when the fees were incurred. Moreover, “the defendant is not entitled to a refund of the [inmate] account … fees” “[u]nder the [due process] principles set forth in Martinez and Nelson [v. Colorado, 137 S.Ct. 1249 (2017)].” “Unlike probation fees, victim-witness assessments, restitution, and fines paid as penalties, the fees at issue here were not ordered solely as a consequence of the defendant’s convictions, but [were] withdrawn from his inmate account in connection with certain financial transactions. [The fees] cannot fairly be said to be part of the penalty imposed by the court as a punishment for the offenses of which the defendant was convicted. Moreover, like monies that are subject to civil forfeiture, the fees were imposed by a process outside the scope of the criminal proceeding. We conclude that these fees were not exacted from the defendant upon conviction and solely as a consequence of his convictions. The defendant is therefore not entitled to have them refunded.”

If you or a loved one was impacted by Sonia Farak’s misconduct, you may be eligible for a refund of fees, fines, or other assessments.  You will need an attorney familiar with the developments in the case law to make sure that you are made whole again.  Attorney Daniel Cappetta is such an attorney – he is well versed in drug lab issues and has worked hard to make sure that his clients that have been wronged in the drug lab scandals receive the outcome and compensation they deserve. Contact him for a free consultation today.

The background was as follows. “In December of 2017, the defendant was arrested and charged by criminal complaint in the District Court with one count of indecent assault and battery on a child under the age of fourteen” and related offenses. “At arraignment, the Commonwealth moved for pretrial detention pursuant to G.L. c.276, §58A.” Section 58A(4) provides that “‘[w]hen a person is held under arrest for an offense listed in subsection (1) and upon a motion by the [C]ommonwealth, the judge shall hold a [dangerousness] hearing.” Here “[a]fter an evidentiary hearing [on the Commonwealth’s motion], a District Court judge ordered that the defendant be held without bail. The judge then allowed the defendant’s motion for reconsideration, and ordered that the defendant could be released with conditions, including [GPS] monitoring.” Three weeks after his release, a grand jury returned several indictments against the defendant “for the same events underlying the December 2017 complaint. The prosecutor arranged with defense counsel to schedule the defendant’s arraignment in the Superior Court; no new arrest warrant was issued. The defendant complied with a summons, and was arraigned…. At arraignment, the Commonwealth moved for pretrial detention pursuant to G.L. c.276, §58A. The defendant opposed the motion on the ground that the Commonwealth lacked the right to seek a dangerousness hearing in the Superior Court because the defendant had not been “‘subject to arrest” or “held under arrest” when he appeared for his arraignment, pursuant to [a] summons.’…. [A] Superior Court judge allowed the motion for pretrial detention, without prejudice. Subsequently, the defendant filed a petition pursuant to G.L. c.211, §3, seeking to vacate the order of pretrial detention” on the grounds “that the Commonwealth lacked authority to move to detain him pursuant to G.L. c.276, §58A, because he was not ‘under arrest’ or subject to arrest within the meaning of the statute when he appeared in the Superior Court pursuant to a summons.” The single justice reserved and reported the matter to the full SJC.

In its decision, the SJC cited its conclusion in Commonwealth v. Diggs, 475 Mass. 79, 80 (2016), “‘that where a criminal defendant has been arrested or is subject to an outstanding arrest warrant for an enumerated offense, the defendant may be subject to pretrial detention under G.L. c.276, §58A(4), even if the defendant is not held in custody following the arrest, so long as the dangerousness hearing takes place “immediately upon the person’s first appearance before the court.”’” The Court rejected the defendant’s position, which “would require the Commonwealth to re-arrest any individual who previously had been released on conditions after a dangerousness hearing in the District Court, or released under G.L. c.276, §58, should the Commonwealth seek a dangerousness hearing following an indictment and subsequent arraignment in the Superior Court.” The SJC opined that “requesting a defendant’s presence in court through a summons is far preferable to arresting [him],” because “subjecting a defendant to arrest is more disruptive to [him].”

Being found “dangerous” pursuant to § 58A is an extremely serious potential consequence for defendants criminally charged with a qualifying offense because it may result in a 120 day detention period.  If you or a loved one has been charged with such an offense and the Commonwealth is moving for dangerousness, you will need an experienced and dedicated attorney to represent you.  Attorney Daniel Cappetta has successfully litigated numerous dangerousness hearings and makes sure that his clients get the best possible result.  Call him for a free consultation today.

The background was as follows. “The defendant … currently faces deportation based in part upon an admission to sufficient facts for a finding of guilty on two counts of assault by means of a dangerous weapon. During the plea colloquy conducted in connection with that admission, the judge warned the defendant about certain ‘practically inevitable’ immigration consequences that would arise if the defendant did not have United States citizenship and ‘if … the crime admitted to is one that presumptively mandates removal from the United States’ (emphasis added), as required by Mass. R. Crim. P. 12(c)(3)(A)(iii)(b). The judge neglected, however, to recite the following, more general words of warning prescribed by G.L. c.278, §29D: ‘If you are not a citizen of the United States, you are hereby advised that the acceptance by this court of your plea of guilty, plea of nolo contendere, or admission to sufficient facts may have consequences of deportation, exclusion from admission to the United States, or denial of naturalization, pursuant to the laws of the United States.’ The same statute requiring oral delivery of this warning at all criminal plea colloquies further provides: ‘If the court fails so to advise the defendant, and he later at any time shows that his plea and conviction may have or has had one of the enumerated consequences, … the court, on the defendant’s motion, shall vacate the judgment and permit the defendant to withdraw the plea of guilty, plea of nolo contendere, or admission of sufficient facts, and enter a plea of not guilty.’…. [O]ne and one-half years after the plea colloquy, following the commencement of deportation proceedings, the defendant [filed a motion] to withdraw [his] admission based on the contention that the judge failed to provide the statutory warning.” The motion was denied and the defendant appealed.

In its decision, the SJC stated, “Given the complexity of Federal immigration law, the offense- specific warning provided to the defendant in the instant case is confusing, and it is neither equivalent to, nor an adequate substitute for, the more general advisory that G.L. c.278, §29D, entitles every criminal defendant to receive.” “[T]he warning given to the defendant here does not equate to a plain statement of three specific immigration consequences that ‘may’ occur, as the Legislature prescribed. Instead, the defendant was told that certain crimes ‘presumptively mandate[] removal’ and would make immigration consequences ‘practically inevitable’ — but without receiving any indication whether the defendant’s own offenses … constitute that type of crime.” “To comprehend whether … [this] warning applies to a particular defendant therefore requires both a thorough, nuanced understanding of Federal immigration law and often a significant quantity of personal information about the particular defendant (including immigration history and status, criminal record, and the nature and circumstances of the pending charges).” “Without the general statutory warning [set forth in G.L. c.278, §29D,] the … warning [given to the defendant was] therefore too technical, legalistic, and complex in its application to be particularly informative.”

Although the potential consequences of a criminal conviction are significant for any person, such consequences may be especially dire for non-citizens. It is of the utmost importance that any non-citizen charged with a criminal case know the potential consequences of a plea. AttorneyDaniel Cappetta has significant experience representing both citizen and non-citizen clients in criminal matters. He makes sure that all of his clients are fully informed, both by him, and by the court. If you or a loved one is charged with a criminal case that may have immigration implications, call Attorney Cappetta today for a thorough evaluation of your case.