Commonwealth v. Harold L. Oliver, Jr.

• Court: Massachusetts Appeals Court
• Decided: August 1, 2024
• Docket: 23-P-1070
• Status: Unpublished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

23-P-1070

COMMONWEALTH

vs.

HAROLD L. OLIVER, JR.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After serving over thirty years of his thirty-to-forty year

State prison sentence for assault with intent to rape, second

offense, see G. L. c. 265, § 24, the defendant filed a motion

pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass.

1501 (2001), seeking a new sentencing hearing. The motion was

assigned to a Superior Court judge who declined to exercise his

discretion to revisit the sentence, concluding that the

defendant's motion failed to establish that justice was not

done. The defendant appeals from the denial of the motion.

The basis of the defendant's motion was that as a child and

adolescent he was the victim of horrific sexual abuse and human

trafficking, but that these mitigating circumstances were not brought to the attention of the trial judge at sentencing.

Appropriately, he does not contend that his claim involves newly

discovered evidence or that his defense counsel at the time was

ineffective, as he admits that he was aware of his past abuse

but did not communicate it to counsel. Rather, the defendant

claims that he is entitled to relief under "[t]he fundamental

principle established by [rule 30 (b)]" that a new trial may be

awarded "if it appears that justice may not have been done,"

even "in the absence of error or new evidence." Commonwealth v.

Brescia, 471 Mass. 381, 388, 390 (2015).

To begin, we observe that the defendant has filed multiple

new trial motions and motions to revise and revoke since his

conviction. Indeed, he appears to have asserted a similar claim

as that asserted here in connection with a 1998 motion to revise

and revoke. Thus, the issue is waived, see Mass. R. Crim. P.

30 (c) (2), as appearing in 435 Mass. 1501 (2001); Commonwealth

v. Deeran, 397 Mass. 136, 142 (1986), and at the very least the

defendant must demonstrate a substantial risk of a miscarriage

of justice to be entitled to relief. See Commonwealth v.

Randolph, 438 Mass. 290, 296 (2002); Commonwealth v. Azar, 435

Mass. 675, 685 (2002). The Commonwealth argues that he is

entitled to no relief whatsoever because his motion is in effect

an untimely motion to revise and revoke. See Mass. R. Crim. P.

2 29 (a) (2), as appearing in 489 Mass. 1503 (2022) (judge may

revise or revoke disposition of criminal case upon motion

brought "within sixty days of a disposition, within sixty days

of issuance of a rescript by an appellate court on direct

review, or within sixty days of the disposition of criminal

charges against a codefendant"); Commonwealth v. Fenton F., 442

Mass. 31, 36 (2004). Assuming without deciding that the motion

judge properly treated the motion as a rule 30 (b) motion and

had the discretion to order a new sentencing hearing, we discern

no abuse of that discretion.

"It is well established that, in reviewing the denial or

grant of a new trial motion, we examine the motion judge's

conclusion only to determine whether there has been a

significant error of law or other abuse of discretion"

(quotation and citation omitted). Brescia, 471 Mass. at 387.

"Under the abuse of discretion standard, the issue is whether

the judge's decision resulted from a clear error of judgment in

weighing the factors relevant to the decision . . . such that

the decision falls outside the range of reasonable alternatives"

(quotation and citation omitted). Commonwealth v. Kolenovic,

471 Mass. 664, 672 (2015).

Here, the motion judge declined to grant the relief sought

by the defendant because he determined that the defendant failed

3 to show that "justice was not done." In making this

determination, the judge commented the original sentence was

neither "inappropriate" nor "too harsh," and that the evidence

of the abuse suffered by the defendant "does not serve as a

basis to overturn or vacate his legally imposed sentence, given

the defendant's underlying conduct, the fact that this offense

was committed while on parole, the time delay between sentencing

and this motion; [the] 1998 letter to Judge Barton; the Rule 29

motions previously denied; etc."

The defendant's reliance on Commonwealth v. Talbot, 444

Mass. 586, 595-597 (2005), is misplaced. In Talbot, the

contents of a presentencing report had no prejudicial effect on

the defendant's sentence because the information in the report

was cumulative of information that the judge already had. See

id. Nothing in Talbot suggests or implies that a judge may not

consider the appropriateness of the original sentence in

determining whether the evidence offered by a defendant years

later rendered the original sentence unjust. Nor are we

persuaded by the defendant's claim that he "stands in

essentially the same place" as the defendant in Commonwealth v.

Epps, 474 Mass. 743 (2016). There, new evidence based on

evolving scientific research about child head injuries would

have been a "real factor" in the jury's deliberations, and the

4 defendant's deprivation of such a defense created a serious

doubt as to whether the jury's verdict would have been the same.

See id. at 768. Here, the motion judge reasonably concluded

that the evidence of the defendant's past abuse would not have

been such a significant factor at the defendant's sentencing

hearing as to cast doubt on the justice of the sentence imposed.

There was no abuse of discretion. The factors that the judge

considered were appropriate and relevant, and his determination

that there was no injustice is reasonable.

Order denying motion for new trial affirmed.

By the Court (Massing, Shin & D'Angelo, JJ.1),

Clerk

Entered: August 1, 2024.

1 The panelists are listed in order of seniority.