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SJC-12065

              COMMONWEALTH   vs.   GILMAR BARATIERI.


                       September 12, 2016.


Supreme Judicial Court, Superintendence of inferior
     courts. Bail. Surety.


     Queila Alcedina Lopes and Angelina Placido acted as
sureties for the defendant, Gilmar A. Bartieri, in the District
Court, and posted a total of $50,000 in bail on his behalf. 1
After Baratieri subsequently failed to appear for a hearing on
March 30, 2015, a judge ordered the bail forfeited. Prior to
that, the sureties had filed a motion for return of bail, on the
basis that Baratieri could not appear for the hearing because he
was in Federal custody, on an Immigration and Customs
Enforcement detainer. 2 The motion was denied. The sureties then
filed a petition pursuant to G. L. c. 211, § 3, in the county
court, asking the court to order return of bail. A single
justice denied the petition, and the sureties filed a notice of
appeal.


     1
       Baratieri was charged with several crimes including
aggravated rape of a child, in violation of G. L. c. 265, § 23A;
and indecent assault and battery on a child under the age of
fourteen, in violation of G. L. c. 265, § 13B.
     2
       On the basis of the record before us, it appears that,
shortly after the defendant was taken into Federal custody, he
appeared before an immigration judge, admitted to overstaying
his visa, and requested an order of removal to Brazil, his
native country. The judge ordered the defendant removed, and
the defendant subsequently left the United States for Brazil on
April 29, 2015.
                                                                   2


     After their appeal was entered in this court, the sureties
filed a brief. 3 Their brief contained no explanation of why the
matter was suitable for consideration pursuant to G. L. c. 211,
§ 3. The Commonwealth, in turn, filed a document indicating
that it did not intend to file a responsive brief because, it
claimed, the sureties had failed to comply with S.J.C. Rule
2:21, as amended, 434 Mass. 1301 (2001). The sureties have now
filed a "petition" to appeal pursuant to rule 2:21. It is
questionable whether the trial court ruling from which the
sureties seek relief is "interlocutory," for purposes of rule
2:21, and thus questionable whether the rule applies here.
Regardless, it is evident that the sureties had an adequate
alternative remedy. As the Commonwealth noted in its opposition
to the sureties' G. L. c. 211, § 3, petition, bail forfeiture
issues are typically resolved through the normal appellate
process. See Commonwealth v. Bastidas, 81 Mass. App. Ct. 1124
(2012) (memorandum and order pursuant to rule 1:28) (surety's
appeal from denial of motion to return bail); Commonwealth
v. Gomez, 78 Mass. App. Ct. 569 (2011) (defendant's appeal from
bail forfeiture order). See also Commonwealth v. Bautista, 459
Mass. 306, 310 (2011) (surety appealed to Appeals Court from
denial of motion to return bail; Supreme Judicial Court
transferred appeal on its own motion).

     To the extent that the sureties have even addressed in
their petition the issue of an adequate alternative remedy, they
argue only that because the defendant has been deported, further
action in the trial court is "unlikely." This may well be so,
but it does not negate the fact that the Appeals Court, and not
this court, is the proper place to challenge a bail forfeiture
ruling in the first instance. We see no reason why the sureties
could not have appealed directly to the Appeals Court from the
denial of their motion for return of the bail at the time that
ruling occurred. The ruling may have been "interlocutory" in
the theoretical sense that the underlying criminal case was
still ongoing, but as to the nonparty sureties, it was a final
order that resolved the matter entirely. This case does not
present the type of exceptional circumstance that requires the
exercise of this court's extraordinary power of general
superintendence pursuant to G. L. c. 211, § 3.

                                   Judgment affirmed.


     3
       The sureties were represented by counsel throughout the
proceedings, in both the trial court and this court, relevant to
their efforts to have bail returned.
                                                              3



     The case was submitted on briefs.
     Adriana Contartese for the petitioners.
     Erin J. Anderson, Assistant District Attorney, for the
Commonwealth.
