Commonwealth v. Alims Myrthil, Jr.

• Court: Massachusetts Appeals Court
• Decided: July 5, 2023
• Docket: 21-P-0878
• Status: Unpublished

Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

21-P-878

COMMONWEALTH

vs.

ALIMS MYRTHIL, JR.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The Commonwealth appeals from an order of a judge of the

Dorchester Division of the Boston Municipal Court allowing the

defendant's motion to dismiss and from an order denying the

Commonwealth's motion to reconsider the dismissal. We reverse.

Background. On September 6, 2018, the defendant was

charged with operating a motor vehicle under the influence of

liquor (OUI), second offense, and operating a motor vehicle

after a license suspension for OUI. After some preliminary

hearings, the case was scheduled for trial on May 23, 2019.

Both parties answered ready for trial, but the case was

continued due to court congestion. On the next scheduled trial

date of July 25, 2019, the Commonwealth answered not ready for

trial because the arresting officer was unavailable. The judge (first judge) dismissed the case without prejudice for want of

prosecution.

On November 6, 2019, the arresting officer applied for a

new complaint based on the same incident. After a clerk's

hearing on December 19, 2019, a new complaint issued for the

same charges.1 On March 6, 2020, the defendant filed a motion to

dismiss the new complaint prior to arraignment. After a hearing

on the motion, a second judge entered findings and rulings and

allowed the motion to dismiss. The Commonwealth filed a motion

to reconsider, which the judge denied "in the interest of

justice." This appeal followed.

Discussion. We review the granting of a motion to dismiss

for want of prosecution for an abuse of discretion. See

Commonwealth v. Rosa, 491 Mass. 369, 370 (2023). This case is

controlled in all material respects by Rosa. In Rosa, a judge

allowed the defendant's motion to dismiss for want of

prosecution and added a condition, requiring the Commonwealth to

file a motion to vacate the dismissal if it chose to pursue the

case in the future. See id. at 371-372. The court held that

this ruling violated art. 30 of the Massachusetts Declaration of

Rights by interfering "with the prosecutor's exclusive

1 The defendant did not appear at the clerk's hearing because he did not receive notice of the hearing, which was mailed to an incorrect address.

2 'discretion in deciding whether to prosecute a particular

defendant.'" Id. at 374, quoting Commonwealth v. Cheney, 440

Mass. 568, 574 (2003). The defendant contends that because one

judge dismissed the first case, and another judge dismissed the

second case, Rosa (in which the same judge dismissed both cases)

does not control. This is a distinction without a difference,

as the judge's orders here, as in Rosa, "constituted a hurdle

for the Commonwealth to overcome in order to reprosecute the

case."2 Rosa, supra.

Additionally, under separation of powers principles, a

judge may determine "only whether a sufficient legal basis

exists for issuance of a criminal complaint." Commonwealth v.

Moore, 93 Mass. App. Ct. 73, 77 (2018). Put another way, the

decision to prosecute a case lies exclusively with the executive

branch, and therefore a judge may not dismiss a legally valid

complaint over the Commonwealth's objection. See Rosa, 491

Mass. at 372. "Only an attorney authorized by the Commonwealth

to represent it has authority to declare that he will not

2 In connection with dismissing this case, the judge said that the Commonwealth could file a motion to reconsider before the first judge or a motion to vacate the first dismissal. Because the time to file a motion to reconsider the first judge's order of dismissal has long passed, see Commonwealth v. Montanez, 410 Mass. 290, 294 (1991), citing Mass. R. A. P. 4 (b), as amended, 378 Mass. 928 (1979), and there is no statute or rule that permits the Commonwealth to file a motion to vacate, neither option was viable.

3 further prosecute a case in behalf of the Commonwealth." Moore,

supra at 78, quoting Commonwealth v. Hart, 149 Mass. 7, 8

(1889).

Here the judge gave several reasons for dismissing the

second complaint: (1) the defendant was unable to participate

in the clerk's hearing, (2) there were now two docket numbers

for this offense associated with the defendant, and (3) the

passage of time negatively affected the defendant's ability to

mount a defense. None of the reasons finds support in our

common law. In the circumstances of the case, the defendant was

not entitled to a clerk's hearing. See G. L. c. 218, § 35A;

Boston Globe Media Partners, LLC v. Chief Justice of the Trial

Court, 483 Mass. 80, 84-85 (2019). Even if he was, a "hearing,

under [G. L. c. 218] § 35A, is not constitutionally mandated,

and the statute provides no remedy for unjustified denial of a

hearing." Commonwealth v. Irick, 58 Mass. App. Ct. 129, 132

(2003). The defendant has cited no case and we have found none

that permits or mandates dismissal of a criminal case based on

the way the charge will appear on the defendant's criminal

record. Moreover, the statute of limitations for prosecuting an

OUI is six years. See G. L. c. 277, § 63. And there was no

evidence that the three-year delay so affected the defendant's

ability to present evidence such that he can no longer receive a

4 fair trial.3 See Commonwealth v. Corbett, 26 Mass. App. Ct. 773,

779-780 (1989). Finally, the second judge did not find that the

charges were unlawful, nor could she.

Order allowing defendant's motion to dismiss reversed.

Order denying Commonwealth's motion to reconsider reversed.

By the Court (Blake, Walsh & Hershfang, JJ.4),

Clerk

Entered: July 5, 2023.

3 Approximately one-half of the delay is attributable to the COVID-19 pandemic and therefore was unavoidable. See Robert LeSage, petitioner, 488 Mass. 175, 186-187 (2021). 4 The panelists are listed in order of seniority.