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SJC-12927

                 GLENN CHRISTIE     vs.   COMMONWEALTH.



            Suffolk.       March 31, 2020. - April 1, 2020.

      Present:    Gants, C.J., Gaziano, Lowy, Budd, Cypher,
                           & Kafker, JJ.


Practice, Criminal, Sentence, Execution of sentence, Stay of
     proceedings.



     Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on March 17, 2020.

     A motion to stay execution of a sentence was heard by Budd,
J., and the case subsequently was reported by her.


     David Rassoul Rangaviz, Committee for Public Counsel
Services, for the petitioner.
     Sarah M. Joss, Special Assistant Attorney General, for
Probation Service.
     David F. O'Sullivan, Assistant District Attorney, for the
Commonwealth.
     Katharine Naples-Mitchell, for Mary T. Bassett & others,
amici curiae, submitted a brief.


    GANTS, C.J.        The issue presented on appeal is whether the

denial by a single justice of the Appeals Court of a motion to
                                                                      2


stay execution of a sentence pending appeal before the Governor

declared a state of emergency arising from the COVID-19 pandemic

required a Superior Court judge to deny a subsequent motion to

stay brought after the declaration.       We conclude that it does

not:       the health risks to a person in custody caused by the

pandemic constitute changed circumstances that require de novo

review of the motion to stay.      We also conclude that, in

conducting that de novo review, a judge must give careful

consideration not only to the risks posed by releasing the

defendant –- flight, danger to others or to the community, and

likelihood of further criminal acts -- but also, during this

pandemic, to the risk that the defendant might die or become

seriously ill if kept in custody.1

       Background.     In 2007, the defendant was convicted on four

indictments charging statutory rape, one indictment charging

indecent assault and battery on a child under the age of

fourteen, and one indictment charging dissemination of obscene

material to a minor.      See Commonwealth v. Christie, 89 Mass.

App. Ct. 665, 666 (2016).      The convictions on all but the

dissemination charge were reversed on appeal, and the verdicts

were set aside.      See id. at 676.   On remand to the Superior




       We acknowledge the amicus brief submitted by ten public
       1

health experts.
                                                                     3


Court, the defendant pleaded guilty to three counts of rape of a

child and one count of indecent assault on a child under

fourteen on June 19, 2018.     He was sentenced to time served in

prison and was placed on probation for ten years.     On April 29,

2019, a Superior Court judge found that the defendant committed

technical violations of his conditions of his probation,

specifically missing a meeting with his probation officer, being

temporarily suspended from his sex offender treatment program,

and failing to comply with global positioning system monitoring.

The judge revoked his probation and sentenced him to from one to

two years in State prison.     He is currently serving that

sentence at the Massachusetts Treatment Center (treatment

center), a medium security prison operated by the Department of

Correction.

    In November 2019, the defendant filed a motion to

reconsider the revocation or, alternatively, to stay his

sentence pending appeal.     The judge denied that motion on

February 14, 2020.   His appeal from that denial is now pending

in the Appeals Court.   The defendant then sought a stay of his

sentence pending appeal from a single justice of the Appeals

Court, who denied the motion on February 26, 2020.

    On March 10, 2020, the Governor declared a state of

emergency throughout the Commonwealth in response to the spread

of COVID-19, a particularly virulent and dangerous coronavirus.
                                                                     4


See Executive Order No. 591.   The next day, the World Health

Organization declared COVID-19 to be a global pandemic.    On

March 17, because of the pandemic, this court closed court

houses to the public except to conduct emergency hearings that

cannot be resolved through a video conference or telephonic

hearing.

    That same day, the defendant filed an emergency petition in

the county court, pursuant to G. L. c. 211, § 3, seeking

immediate release from custody based on the changed

circumstances arising from the COVID-19 pandemic, noting that he

is fifty-four years old and suffers from chronic medical

conditions that place him at particular risk of serious illness

or death were he to contract the virus.    A single justice denied

the petition, where the defendant had not sought this relief

from a judge in the Superior Court.    The defendant subsequently

filed an emergency motion for immediate release in the Superior

Court, which a judge (who was not the sentencing judge) denied

following a hearing on March 23.   The defendant then renewed his

petition under G. L. c. 211, § 3, before the single justice, who

reserved and reported the case to the full court.

    Discussion.   1.   COVID-19.   COVID-19 is a respiratory

illness caused by a novel coronavirus.    While some patients with

COVID-19 develop mild respiratory illness, others develop severe

complications, such as pneumonia in both lungs, multi-organ
                                                                    5


failure, and in some cases death.   COVID-19 is a particular risk

to older adults and to individuals with underlying health

conditions, such as cardiovascular disease, diabetes, and

chronic respiratory disease.

    Prevention of COVID-19 is highly dependent on physical

social distancing (i.e., remaining at least six feet apart from

other people), as well as frequent hand-washing and sanitizing.

Persons who have been exposed to someone who has or may have

COVID-19 have been asked by international, Federal, and State

authorities to self-isolate for at least two weeks following the

potential exposure in order to slow the spread of the virus.

    The United States Centers for Disease Control and

Prevention has issued guidance on the management of COVID-19 in

correctional facilities, discussing the "unique challenges for

control of COVID-19 transmission among incarcerated/detained

persons, staff, and visitors."   See Interim Guidance on

Management of Coronavirus Disease 2019 (COVID-19) in

Correctional and Detention Facilities (Mar. 23, 2020),

https://www.cdc.gov/coronavirus/2019-ncov/community/correction-

detention/guidance-correctional-detention.html

[https://perma.cc/KY9V-TS9K].    If a virus as contagious as

COVID-19 were to enter a correctional facility, the risk of

transmission is high.   Incarcerated individuals often bunk in

the same cell or unit and cannot realistically maintain adequate
                                                                      6


social distancing.    Indeed, when this emergency motion to renew

the petition for relief was filed in the county court on March

24, 2020, there were already four confirmed cases of COVID-19 at

the treatment center.     By the time the defendant filed his reply

brief two days later, the number had almost tripled to eleven

cases.    As of the date of hearing, that number had again

increased to seventeen.

    The defendant suffers from multiple chronic medical

conditions, including nephropathy, hypothyroidism, and thyroid

cancer.    He also has limited mobility due to spinal issues and

relies on a wheelchair.    He, therefore, is at heightened risk of

serious illness or death if he were to contract the virus.

    2.    Stay of execution pending appeal.    Under Mass. R. Crim.

P. 31 (a), as appearing in 454 Mass. 1501 (2009), a defendant

sentenced to a term of imprisonment may seek a stay of execution

pending appeal.   The stay may be sought from the judge who

imposed the sentence or, pursuant to Mass. R. A. P. 6, as

appearing in 481 Mass. 1608 (2019), from a single justice of the

court that will hear the appeal.    Mass. R. Crim. P. 31 (a).    The

decision whether to grant a stay is within the sound discretion

of the judge or justice.    Commonwealth v. Cohen (No. 2), 456

Mass. 128, 132 (2010).

    When considering the merits of a motion to stay the

execution of a sentence, a judge should consider two factors.
                                                                     7


First is whether the appeal presents "an issue which is worthy

of presentation to an appellate court, one which offers some

reasonable possibility of a successful decision in the appeal."

Commonwealth v. Allen, 378 Mass. 489, 498 (1979), quoting

Commonwealth v. Levin, 7 Mass. App. Ct. 501, 504 (1979).       See

Cohen, 456 Mass. at 132.    Second, the judge should consider "the

possibility of flight to avoid punishment; potential danger to

any other person or to the community; and the likelihood of

further criminal acts during the pendency of the appeal."

Commonwealth v. Hodge (No. 1), 380 Mass. 851, 855 (1980).

    The power to stay a sentence pending appeal "may be

exercised by the sentencing judge, by a single justice of the

Appeals Court, or by a single justice of this court."    Allen,

378 Mass. at 496.    "Each judge or Justice has the power to

consider the matter anew, taking into account facts newly

presented, and to exercise his [or her] own judgment and

discretion."   Id.   In this case, a Superior Court judge and a

single justice of the Appeals Court denied the defendant's

motions to stay his sentence on February 14 and February 26,

respectively, based on the information that was available at the

time, before the COVID-19 pandemic had reached Massachusetts.

    On March 23, when a different Superior Court judge denied

the defendant's motion for immediate release or, alternatively,

a stay of execution of the sentence, the COVID-19 pandemic had
                                                                      8


taken hold in the Commonwealth, resulting in the Governor's

order of a state of emergency.    Although it is not entirely

clear from his order, the judge appears to have understood that

he did not have the authority to reconsider the defendant's

motion to stay the execution of his sentence because a single

justice of the Appeals Court had already denied that request one

month earlier.

    If there had been no change in circumstances, the judge

would have been correct.     However, because of the arrival of the

COVID-19 pandemic in Massachusetts, the exponential spread of

the virus, and the particular danger of transmission of the

virus to persons in custody who cannot realistically engage in

social distancing, a fundamental change in circumstances had

occurred between the date when the single justice denied the

motion (February 26) and the date when the judge decided the new

motion to stay (March 23).    Therefore, it was error for the

judge not to reconsider the defendant's motion to stay execution

of sentence in light of the rapidly changing situation arising

from the COVID-19 pandemic.    We therefore remand this matter to

the Superior Court to permit such reconsideration.

    We also note that the health risks to persons in custody

arising from this pandemic require that we adjust the analysis

applied to motions to stay the execution of sentence pending

appeal.   In ordinary times, in considering the second factor, a
                                                                      9


judge should focus on the danger to other persons and the

community arising from the defendant's risk of reoffense.       See

Cohen, 456 Mass. at 132; Hodge, 380 Mass. at 855.    In these

extraordinary times, a judge deciding whether to grant a stay

should consider not only the risk to others if the defendant

were to be released and reoffend, but also the health risk to

the defendant if the defendant were to remain in custody.       In

evaluating this risk, a judge should consider both the general

risk associated with preventing COVID-19 transmission and

minimizing its spread in correctional institutions to inmates

and prison staff and the specific risk to the defendant, in view

of his or her age and existing medical conditions, that would

heighten the chance of death or serious illness if the defendant

were to contract the virus.

    In addition to those factors, in this particular case, it

is important that the judge give careful consideration to the

circumstances under which the defendant would quarantine if he

were to be released.   The defendant proffers that a friend has

agreed to house him if he were to be released from custody,

despite the risk that the defendant might have been exposed to

the COVID-19 virus.    On remand, the defendant should address

questions raised during the appellate oral argument regarding

the actual availability of such a residence where he might be

safely quarantined and the suitability of such a residence if it
                                                                  10


were available.   The facts regarding these matters were not

fully developed at the time of oral argument and should be

presented more fully to the motion judge.   The motion judge

should recognize that, because of the pandemic, and because time

is of the essence, it may not be realistic to conduct the usual

due diligence to provide assurances of availability and

suitability, but that should not prevent the judge from relying

on the information that reasonably can be provided under the

circumstances.

    Conclusion.   For the reasons stated, we vacate the judge's

denial of the defendant's motion for reconsideration of a stay

pending appeal and remand the matter to the Superior Court for

proceedings consistent with this opinion.   A hearing on the

remanded motion shall be conducted in the Superior Court within

forty-eight hours of the issuance of this decision.

                                    So ordered.
