NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

SJC-11482

              COMMONWEALTH   vs.   SHABAZZ AUGUSTINE.


        Suffolk.     October 10, 2013. - March 11, 2015.

  Present:   Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.


Practice, Criminal, Appeal, Interlocutory appeal, Attorney's
     fees, Request for fees and costs.



     Indictment found and returned in the Superior Court
Department on July 29, 2011.

     Following review reported in 467 Mass. 230 (2014), a motion
to award appellate attorney's fees was filed in this court on
February 28, 2014.


     The case was submitted on briefs.
     Matthew R. Segal & Jessie J. Rossman for the defendant.
     Cailin M. Campbell, Assistant District Attorney, for the
Commonwealth.
     Jane Larmon White, Committee for Public Counsel Services,
for Committee for Public Counsel Services, amicus curiae.


    BOTSFORD, J.   Following our decision in Commonwealth v.

Augustine, 467 Mass. 230 (2014), the defendant filed a request

for attorney's fees pursuant to Mass. R. Crim. P. 15 (d), as

appearing in 422 Mass. 1501 (1996).    He seeks fees for counsel
                                                                        2


he engaged to replace his court-appointed counsel for the

defense of the Commonwealth's interlocutory appeal in the case.

It is undisputed that the defendant is indigent and that his new

counsel agreed not to charge him any fees for their services.

For reasons explained below, we hold that the defendant is not

entitled to the payment of fees under rule 15 (d) in these

circumstances.

     Procedural background.    The defendant was indicted in 2011

for the murder of Julaine Jules.    In November, 2012, he moved to

suppress "cell site location information" that the Commonwealth

had obtained, without a warrant, from his cellular telephone

service provider.    Augustine, 467 Mass. at 234.     A judge of the

Superior Court allowed his motion and suppressed the challenged

evidence.   Id.   The Commonwealth thereafter applied for leave to

appeal from the adverse ruling in accordance with Mass. R. Crim.

P. 15 (a) (2), as appearing in 422 Mass. 1501 (1996).1       Id.    A

single justice of the county court granted the application and

directed the appeal to proceed in this court.       Id.   We held

that, under art. 14 of the Massachusetts Declaration of Rights,

     1
       The rule provides: "A defendant or the Commonwealth shall
have the right and opportunity to apply to a single justice of
the Supreme Judicial Court for leave to appeal an order
determining a motion to suppress evidence prior to trial. If
the single justice determines that the administration of justice
would be facilitated, the single justice may grant that leave
and may hear the appeal or may report it to the full Supreme
Judicial Court or to the Appeals Court." Mass. R. Crim. P. 15
(a) (2), as appearing in 422 Mass. 1501 (1996).
                                                                      3


the defendant had a reasonable expectation of privacy in his

cell site location information, and therefore that a warrant was

required for the Commonwealth to obtain the information.         Id. at

255.        We remanded the case to the Superior Court to give the

Commonwealth an opportunity to demonstrate the requisite

probable cause for a warrant.        Id. at 256.

        After we issued our opinion, and before we issued the

rescript to the trial court, the defendant filed his motion

seeking fees associated with the appeal, pursuant to rule 15

(d).2       The Commonwealth countered by filing a motion to compel

the defendant to disclose his written fee agreement with his

counsel, which the defendant opposed and we denied.        The

Commonwealth then filed an opposition to the fee request, and

the defendant filed a reply to the opposition.3       The matter is

now ripe for decision.4


        2
       The rule provides: "If an appeal or application therefor
is taken by the Commonwealth, the appellate court, upon the
written motion of the defendant supported by affidavit, shall
determine and approve the payment to the defendant of his or her
costs of appeal together with reasonable attorney's fees to be
paid on the order of the trial court upon the entry of the
rescript or the denial of the application." Mass. R. Crim.
P. 15 (d), as appearing in 422 Mass. 1501 (1996).
        3
       The Commonwealth filed in addition a "motion to reserve
and report questions of law" concerning the availability of
attorney's fees in these circumstances. The defendant indicated
that he did not oppose a reservation and report. The Committee
for Public Counsel Services (CPCS) also submitted a letter
addressing the fee matter. Because fee matters in situations
like this are decided by the full court and not by a single
                                                                     4


    Facts.     The defendant was arraigned in the Superior Court

in September, 2011, at which time attorney Steven J. Sack was

appointed by the Committee for Public Counsel Services (CPCS) to

represent him.    Mr. Sack eventually filed the motion to suppress

that ultimately resulted in the Commonwealth's interlocutory

appeal.    Augustine, 467 Mass. at 234.   He also represented the

defendant before the single justice in the county court when the

Commonwealth applied for leave to appeal from the Superior

Court's allowance of the motion to suppress, and he continues to

represent the defendant in the underlying case in the trial

court.    However, Mr. Sack did not represent the defendant before

the full court when we heard the Commonwealth's interlocutory

appeal.    Rather, for purposes of the appeal before the full

court, CPCS appointed attorney Ruth Greenberg, who, we take

judicial notice, has represented numerous criminal defendants in

appellate cases in both this court and the Appeals Court for

more than twenty years.    Ms. Greenberg filed her notice of

appearance promptly after the single justice allowed the

Commonwealth's appeal to proceed.


justice, see Commonwealth v. Ennis, 441 Mass. 718, 721 (2004),
and because the defendant's fee request is already pending
before the full court, there is nothing to "reserve and report."
    4
       As in previous cases, we shall decide the fee matter on
the basis of the parties' written submissions, without further
argument. See, e.g., Commonwealth v. Phinney, 448 Mass. 621
(2007); Ennis, 441 Mass. at 721. We treat the letter from CPCS
as an amicus submission, see note 3, supra.
                                                                    5


     Shortly after the case was entered in the full court,

however, two attorneys from the American Civil Liberties Union

Foundation of Massachusetts -- Matthew R. Segal and Jessie J.

Rossman -- filed notices of appearance indicating that they

would be representing the defendant in the full court case,5 and

Ms. Greenberg withdrew her appearance.   The circumstances by

which Mr. Segal and Ms. Rossman came to represent the defendant,

and the reasons why Ms. Greenberg withdrew, are not clear from

the materials that are before us.   What is clear and undisputed,

however, is that Mr. Segal and Ms. Rossman never intended to

charge, and in fact did not charge, the defendant any fee for

their services.   Mr. Segal expressly acknowledges in his

affidavit that their agreement was to represent the defendant

"at no cost to him."6



     5
       In an affidavit in support of the defendant's motion for
fees, Matthew R. Segal also identifies attorney Nathaniel Freed
Wessler of the American Civil Liberties Union Foundation as one
of the cocounsel in the full court appeal. Mr. Wessler did not
enter an appearance in the case.
     6
       Mr. Segal states in his affidavit: "I noticed my
appearance for [the defendant] on August 13, 2013. Before doing
so, attorney Rossman and I met with [the defendant] and
finalized a retainer agreement with him providing that we would
represent him before the full bench at no cost to him."
Likewise, the defendant's motion for fees states: "[B]ecause
this appeal raised important civil liberties issues, the
American Civil Liberties Union Foundation of Massachusetts
undertook to represent [the defendant], at no cost to him,
before the full bench."
                                                                    6


    The defendant requests payment to him of fees in the amount

of $12,000 for the services rendered by Mr. Segal in his behalf.

Mr. Segal indicates in his supporting affidavit that he expended

more than 120 hours of time on the full court case, and that he

seeks payment at the rate of one hundred dollars per hour.     He

represents that "[a]s an exercise of billing discretion" he is

not seeking payment for the hours he spent in excess of 120, nor

an hourly rate in excess of one hundred dollars even though a

higher rate "might reasonably be charged by an attorney with

[his] background and experience with criminal appeals."     No fees

are sought for the work of Ms. Rossman, although Mr. Segal

states in his affidavit that she also spent substantial time on

the appeal.   Nor are fees sought for the work performed by the

defendant's court-appointed counsel, Mr. Sack, when the

Commonwealth's application for leave to appeal was before the

single justice.

    Discussion.    Rule 15 (d) is one of several rules of

criminal procedure that "authorize awards of appellate fees and

costs to defendants in those situations where the Commonwealth

is entitled to appeal, or seek leave to appeal, from trial court




     Moreover, Ms. Rossman confirmed to the prosecutor in an
electronic mail message that "under our policy, we do not charge
any client for our services and we cover the costs for indigent
clients."
                                                                    7


rulings in a defendant's favor."7   Commonwealth v. Phinney, 448

Mass. 621, 622 (2007).   "[A]ll of [these] rules share a common

purpose:   'to equalize the resources of the defendant with those

of the Commonwealth' in cases where a defendant does not have

court-appointed counsel but is forced to defend against a

Commonwealth appeal; and to prevent a defendant's privately

retained counsel from being placed 'in the untenable position of

either volunteering his services on appeal or abandoning the

defendant.'"   Id. at 622 n.2, quoting Commonwealth v. Gonsalves,

432 Mass. 613, 617 (2000), S.C., 437 Mass. 1020 (2002) and 441

Mass. 1007 (2004).8


     7
       The other rules are Mass. R. Crim. P. 25 (c) (2), as
appearing in 420 Mass. 1502 (1997) (Commonwealth appeal from
required finding of not guilty or reduction of verdict); Mass.
R. Crim. P. 30 (c) (8), as appearing in 435 Mass. 1501 (2001)
(Commonwealth appeal from order granting new trial); and Mass.
R. Crim. P. (c) (9), as appearing in 435 Mass. 1501 (2001)
(Commonwealth appeal from order granting new trial in capital
case). See Phinney, 448 Mass. at 622.
     8
       In Commonwealth v. Gonsalves, 432 Mass. 613 (2000), S.C.,
437 Mass. 1020 (2002) and 441 Mass. 1007 (2004), the court
discussed at length the origin and purposes of rule 15 (d), and
rejected a challenge by the Commonwealth to its
constitutionality. The court stated:

          "Rule 15 (d) provides a needed measure of protection
     to the rights of defendants by seeking to equalize the
     resources of the defendant with those of the Commonwealth.
     A defendant who is able to retain private counsel may not
     have the funds for an interlocutory appeal from a
     suppression motion on which he has prevailed. The lawyer
     should not be placed in the untenable position of either
     volunteering his services on the appeal or abandoning the
     defendant. These considerations are present in every case
                                                                    8


     Although rule 15 (d) does not so state explicitly, our

decisions have made clear since the rule was first adopted that

it is not applicable to indigent defendants who are represented

by counsel appointed or assigned by CPCS.    Rather, the rule is

intended for the benefit and protection of defendants who do not

have appointed or assigned counsel and must incur fees for

private representation to defend against a Commonwealth appeal.

See Gonsalves, 432 Mass. at 617; Commonwealth v. Murphy, 423

Mass. 1010, 1011 & n.3 (1996).   See also Commonwealth v.

Rosario, 458 Mass. 1003, 1004 & n.3 (2010) (awarding fees under

rule 15; noting that defendant's counsel was privately

retained); Commonwealth v. Lopez, 430 Mass. 244, 245 & n.1

(1999) (same).9   Defendants with appointed or assigned attorneys

are not required to expend their own funds for their

representation.   Their defense, including a zealous defense

against any Commonwealth appeal, is paid for by CPCS from its

budget appropriation.   See G. L. c. 211D.


     and especially operative when the case involves a
     significant constitutional issue on which the defense bar
     has an equal interest with the prosecution in establishing
     the law."

Id. at 617.
     9
       Cf. Phinney, 448 Mass. at 622-624 & n.2 (Rule 30 [c] [9]);
Latimore v. Commonwealth, 417 Mass. 805, 807 (1994) (noting, as
alternative basis for single justice's denial of fee request
under rule 30 [c] [8] [B], that "there was no showing that the
defendant had actually incurred any financial obligation to
defense counsel").
                                                                    9


     Here, an indigent defendant was furnished with capable,

experienced counsel by CPCS for the defense against the

Commonwealth's interlocutory appeal.   Then, as was his right,

the defendant engaged private counsel to replace his appointed

counsel.   He did not incur any fees for this private

representation, however, nor did he legally obligate himself to

pay fees, because his new private counsel expressly agreed to

represent him "at no cost."   There is, therefore, no need to

reimburse him.10

     The fee provision in rule 15 (d) thus is unlike other types

of fee-shifting provisions found elsewhere in our law.    See,

e.g., G. L. c. 12, § 11I; G. L. c. 93A, §§ 9 (4), 11; G. L.

c. 149, § 150; G. L. c. 151B, § 9; G. L. c. 186, §§ 14, 18;

G. L. c. 231, § 59H.   Those other provisions, often statutory,

are generally designed with two major purposes in mind.    First,

they act as a powerful disincentive against unlawful conduct.

Second, they often provide an incentive for attorneys to provide

representation in cases that otherwise would not be financially


     10
       Rule 15 (d) is a rule of "reimbursement." See Reporter's
Notes to Rule 15 (d), Mass. Ann. Laws Court Rules, Rules of
Criminal Procedure, at 1595 (LexisNexis 2014-2015 ed.) ("This
subdivision was drafted to dispel any uncertainty concerning the
defendant's right to reimbursement of his or her costs of appeal
and attorney's fees"). An indigent defendant who has or
acquires the means to pay fees for a private appellate attorney,
and in fact expends or becomes legally obligated to pay fees for
that representation in lieu of CPCS-furnished counsel, of course
would be entitled to reimbursement under rule 15 (d).
                                                                   10


prudent for them to take on, and in that sense they help to

assure that claimants who might not be able to afford counsel,

or whose claims are too small to warrant an expenditure of funds

for counsel, will be represented.    See, e.g., Torres v. Attorney

Gen., 391 Mass. 1, 15 (1984); Lincoln St. Realty Co. v. Green,

374 Mass. 630, 632 (1978); Olmstead v. Murphy, 21 Mass. App. Ct.

664, 666 (1986), and cases cited.   See generally 1 R.L. Rossi,

Attorneys' Fees 3d § 6:7 (2011).    Under those types of

provisions, therefore, a prevailing party's counsel might be

entitled to a fee award even if counsel did not actually charge

the party for fees.   See, e.g., Torres, supra at 14-15 & n.14,

and cases cited.   See also Polay v. McMahon, 468 Mass. 379, 388-

389 (2014).

     By contrast, the fee provision in rule 15 (d) does not

exist to deter or punish misbehavior by the Commonwealth, such

as pursuing meritless appeals.   The Commonwealth is required to

pay a defendant's appellate fees under rule 15 (d) regardless of

whether it ultimately prevails or loses on appeal.11   Nor is rule


     11
       We refer to "the Commonwealth" in two senses here.
First, "the Commonwealth" is the prosecuting entity in the
criminal case, represented by a district attorney's office or by
the Attorney General. Second, it is "the Commonwealth" that is
required to reimburse a defendant under rule 15 (d) for
attorney's fees that he or she incurs in defense of the
interlocutory appeal. More specifically, it is the particular
district attorney's office that prosecutes the appeal and the
administrative office of the Trial Court that are required to
reimburse the defendant for his or her fees; each is responsible
                                                                    11


15 (d) designed to encourage attorneys to take on small cases or

to provide representation for those who cannot afford it.    If a

criminal defendant is indigent and entitled to counsel,

representation will be provided by counsel assigned or appointed

by CPCS, as it was here.

    Being indigent, the defendant was entitled to receive, and

did receive, appointed counsel to represent him in both the

trial court and on appeal at no expense to him.    He also was

entitled to discharge his appointed counsel and retain private

counsel on such terms as he was able, which he did.    What he is

not entitled to, however, is to have the Commonwealth pay him

for private counsel fees that he did not actually incur and was

not legally obligated to pay.    If that were the case, indigent

defendants always would be able to engage private counsel of

their choice, in lieu of their court-appointed counsel, at the

Commonwealth's expense.    There is no such right.12



for paying fifty per cent of any fee award. See St. 2014, c.
165, § 2, line item 0330-0300 (Trial Court budget for fiscal
year 2015); St. 2014, c. 165, § 2, line item 0340-0100 (Suffolk
district attorney budget for fiscal year 2015). See also
Phinney, 448 Mass. at 624-625; Commonwealth v. Murphy, 423 Mass.
1010, 1011 (1996).
    12
       Nothing in our decision in Commonwealth v. Sparks, 431
Mass. 299 (2000), requires a different result. In that case,
the defendant was represented by court-appointed counsel both in
the trial court and on the Commonwealth's appeal from the
dismissal of the indictment pursuant to Mass. R. Crim. P. 15 (a)
(1), as appearing in 422 Mass. 1501 (1996). While the appeal
was pending, and apparently on his own initiative, counsel
                                                                  12


     Finally, we acknowledge the argument made by the defendant,

and by CPCS as an amicus, that rule 15 (d) disadvantages

indigent defendants because it results in the Commonwealth

taking more interlocutory appeals against such defendants,

knowing that it will not have to pay the defendants' attorney's

fees.   The defendant cites in support an affidavit from the

prosecutor filed in opposition to the defendant's request for

fees, which states among other things that the district

attorney's office takes into account, as one factor in deciding

whether to pursue an interlocutory appeal, the fact that the

district attorney will be required to pay the defendant's

attorney's fees if the defendant is represented by privately



arranged for two other attorneys, who had not been authorized by
CPCS for this purpose, to assist him with the appeal. Sparks,
431 Mass. at 300, 303-304. At the conclusion of the appeal, all
three attorneys then moved for fees pursuant to rule 15 (d).
Id. at 301. Considering the case on further appellate review,
we agreed with the Appeals Court that "pursuant to rule 15 (d),
the prosecution is not required to reimburse private counsel for
legal services arranged by court-appointed counsel without the
knowledge and authorization of CPCS" (quotation and citation
omitted). Id. at 304-305. The focus of our analysis was the
fact that the defendant's court-appointed counsel had acted on
his own initiative, without CPCS authorization and apparently
without the knowledge and assent of the defendant himself, in
bringing the two private attorneys into the case. Id. at 302.
Nevertheless, the court did not say or suggest that, but for the
absence of CPCS authorization, the defendant would have been
entitled to payment of attorney's fees that he did not actually
incur for the privately-retained appellate counsel. To the
contrary, the court spoke approvingly of an "indigent
defendant's right to dismiss appointed counsel and retain his
own private counsel under a private payment arrangement"
(emphasis added). Id. at 304 n.7.
                                                                  13


retained counsel.    It would be improper for the district

attorney (the Commonwealth) to adopt a policy or practice for

handling interlocutory appeals that unfairly discriminates

against and disadvantages indigent defendants based on the fact

that they are represented by appointed counsel paid with public

funds.   The affidavit, however, is insufficient by itself to

establish that in this case the Commonwealth's decision to

pursue an interlocutory appeal under rule 15 (a) (2) was made

with discriminatory intent towards, or was part of a pattern

resulting in a disparate, discriminatory impact on, indigent

defendants.   As our underlying opinion in this case indicates,

the issues raised by the Commonwealth in its appeal were of

major legal significance and public importance, and it is

difficult to believe that the Commonwealth's pursuit of this

particular appeal hinged on the fact that the defendant was

indigent.   We leave for another day any questions that might

arise if it were shown that the Commonwealth actually employs

rule 15 (d) in a discriminatory fashion.

    Conclusion.     For the reasons we have stated, the

defendant's motion for appellate attorney's fees pursuant to

rule 15 (d) is denied.

                                     So ordered.
