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SJC-12766

               HELLEN KIAGO-WILSON   vs.   COMMONWEALTH.


                         November 12, 2019.


Supreme Judicial Court, Superintendence of inferior
     courts. Practice, Criminal, Sentence.


     Hellen Kiago-Wilson appeals from a judgment of the county
court denying her petition for relief under G. L. c. 211, § 3.
After a jury trial in the Superior Court, she was convicted of
making false Medicaid claims and of larceny by false pretenses
and was sentenced to a term of incarceration. Before
sentencing, Kiago-Wilson, stating that she was the primary
caretaker of a dependent child, filed a motion requesting that
the judge consider the provisions of G. L. c. 279, § 6B. 1 In her
petition under G. L. c. 211, § 3, she argued that the judge
violated § 6B by sentencing her to a term of incarceration
without making the necessary findings, and she requested that

     1   General Laws c. 279, § 6B, provides in relevant part:

     "Unless a sentence of incarceration is required by law, the
     court may, upon conviction, consider the defendant's status
     as a primary caretaker of a dependent child before imposing
     a sentence. A defendant may request such consideration, by
     motion supported by an affidavit, not more than [ten] days
     after the entry of judgment. Upon receipt of such a motion
     supported by an affidavit, the court shall make written
     findings concerning the defendant's status as a primary
     caretaker of a dependent child and alternatives to
     incarceration. If such a motion has been filed, the court
     shall not impose a sentence of incarceration without first
     making such written findings."
                                                                   2


she be released immediately. A single justice of this court
denied relief on the ground that Kiago-Wilson had an adequate
alternative remedy. We affirm.

     Kiago-Wilson has filed a memorandum and appendix pursuant
to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), which
requires a party challenging an interlocutory ruling of the
trial court to "set forth the reasons why review of the trial
court decision cannot adequately be obtained on appeal from any
final adverse judgment in the trial court or by other available
means." S.J.C. Rule 2:21 (2). That rule does not apply, as
Kiago-Wilson is not challenging an interlocutory ruling.
Rather, she is challenging her sentence, which is part of the
final judgment of the trial court. Nonetheless, it is clear on
the record that she has a remedy in the ordinary appellate
process, as she can raise her claims under G. L. c. 279, § 6B,
on direct appeal from her convictions. Moreover, although it
appears that Kiago-Wilson unsuccessfully moved for a stay of her
sentence in the Superior Court, it does not appear on the record
that she has sought a stay of execution of sentence (or any
other type of relief) from a single justice of the Appeals
Court, the court in which her direct appeal will be entered.
See Mass. R. A. P. 6 (b), as appearing in 454 Mass. 1601 (2009);
Mass. R. Crim. P. 31 (a), as appearing in 454 Mass. 1501 (2009).
Where she had these ordinary means to challenge her sentence
and, if warranted, to be released pending appeal, the single
justice did not err or abuse her discretion by denying
extraordinary relief.

                                   Judgment affirmed.


     The case was submitted on the papers filed, accompanied by
a memorandum of law.

     S. James Boumil, Jr., for the petitioner.
