Kenneth James Otey v. Commonwealth of Massachusetts.

• Court: Massachusetts Appeals Court
• Decided: March 14, 2024
• Docket: 22-P-0599
• Status: Unpublished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

22-P-599

KENNETH JAMES OTEY

vs.

COMMONWEALTH OF MASSACHUSETTS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Kenneth James Otey, filed a complaint in the

Superior Court, claiming that he suffered an erroneous felony

conviction and incarceration, and demanding compensation from

the defendant (Commonwealth) pursuant to G. L. c. 258D. He

claimed that he was entitled to compensation because a judge

ultimately vacated his conviction and dismissed the underlying

indictment. A Superior Court judge allowed the Commonwealth's

motion to dismiss. We affirm.

Background. On March 2, 2008, the plaintiff pleaded guilty

to distribution of a class B substance (cocaine), and a Superior

Court judge sentenced him to State prison for three years to

three years and one day. The defendant served his sentence that

terminated on July 11, 2011. Seven years later, the Supreme

Judicial Court issued an opinion in the case of Committee for Pub. Counsel Servs. v. Attorney Gen., 480 Mass. 700, 704 (2018),

and dismissed thousands of convictions and pending charges

connected with the Amherst drug laboratory where an employee

tampered with evidence in criminal cases. In accordance with

that decision, on December 13, 2018, a single justice of the

Supreme Judicial Court vacated the plaintiff's conviction and

dismissed the charge with prejudice.

On December 10, 2021, the plaintiff filed a complaint (and

later a first amended complaint) seeking compensation pursuant

to G. L. c. 258D. The Commonwealth filed a motion to dismiss.

Following a hearing, a judge allowed the motion to dismiss

through an endorsement order. The judge reasoned that the

plaintiff's conviction was not vacated "on grounds which tend to

establish his innocence. G. L. c. 258D, § 1 (B) (ii). His

conviction was vacated and dismissed for reasons unrelated to

the merits of the indictments." Because the plaintiff's claim

did not qualify for relief under the governing statute, the

judge dismissed the complaint.

Discussion. "We review the allowance of a motion to

dismiss de novo" (quotation and citation omitted). Verveine

Corp. v. Strathmore Ins. Co., 489 Mass. 534, 538 (2022). "A

motion to dismiss will be granted unless the factual allegations

in the complaint are enough to raise a right to relief above the

speculative level based on the assumption that all the

2 allegations in the complaint are true (even if doubtful in

fact)" (quotation and citation omitted). Id.

To recover damages against the Commonwealth for a wrongful

conviction, the plaintiff must initially establish that he is

within a "class of persons eligible to obtain relief." G. L.

c. 258D, § 1 (B). As relevant here, that class of persons

includes "those who have been granted judicial relief by a state

court of competent jurisdiction, on grounds which tend to

establish the innocence of the individual." G. L. c. 258D,

§ 1 (B) (ii). Such grounds must rest "upon facts and

circumstances probative of the proposition that the [plaintiff]

did not commit the crime" (quotation and citation omitted).

Guzman v. Commonwealth, 458 Mass. 354, 362 (2010). Put another

way, "a plaintiff must first show that the grounds for judicial

relief were probative of his innocence." Riley v. Commonwealth,

82 Mass. App. Ct. 209, 212 n.3 (2012).

Here, the judicial relief granted by the single justice was

unrelated to the question of the plaintiff's innocence.

According to the record, the single justice vacated the

plaintiff's conviction "per order of the Supreme Judicial

Court." The origin of that order comes from Committee for Pub.

Counsel Servs., 480 Mass. at 723, 729, where the Supreme

Judicial Court expressly eschewed relying upon a case-by-case

adjudication and opted instead for a global remedy involving

3 thousands of cases impacted by improprieties at the Amherst drug

laboratory. Thus, far from being "probative of his innocence,"

Riley, 82 Mass. App. Ct. at 212 n.3, the order of the single

justice was based solely upon the fact that the cocaine in the

plaintiff's case happened to be analyzed at the subject lab

during a certain time period. Nothing in the single justice's

order suggests any "facts and circumstances probative of the

proposition that the [plaintiff] did not commit the crime"

(quotation and citation omitted). Guzman, 458 Mass. at 362.

Therefore, the plaintiff did not establish that he is within a

"class of persons eligible to obtain relief." G. L. c. 258D,

§ 1 (B).

We disagree with the plaintiff's contention that the single

justice's order bespeaks innocence. He contends that the order

indicates innocence because misconduct at the Amherst drug

laboratory merited the extraordinary remedy of dismissal, and

there is no longer any available evidence showing that he

committed a crime. The Supreme Judicial Court has rejected

similar arguments. In Commonwealth v. Caliz, 486 Mass. 888, 892

(2021), the court recognized the egregious misconduct related to

the Amherst drub laboratory, but declined to equate "government

misconduct" with "actual innocence." Also, a judicial remedy

that results in the absence of a retrial due to "dismissal or

nolle prosequi of the underlying criminal charge" does not

4 equate with innocence. Peterson v. Commonwealth, 478 Mass. 434,

439 (2017). Judicial remedies for "'procedural or evidentiary

errors or structural deficiencies at . . . trial[] that could

well be "consistent" with innocence without any tendency to

establish it' would not meet the statutory definition." Irwin

v. Commonwealth, 465 Mass. 834, 846 (2013), quoting Guzman, 458

Mass. at 358. Because the plaintiff's conviction was not

vacated on grounds tending to establish innocence, he is not

eligible for relief under G. L. c. 258D. Contrast

Drumgold v. Commonwealth, 458 Mass. 367, 378 (2010) (grounds for

relief probative of "reliability of the identification of [the

defendant] as one of the shooters"); Guzman, supra at 365

(grounds for judicial relief tend to establish innocence where

"erroneously omitted evidence was probative of the conclusion

that the culprit was someone else").

The plaintiff's request for attorney's fees is denied.

Judgment affirmed.

By the Court (Shin, Brennan & Hodgens, JJ.1),

Assistant Clerk

Entered: March 14, 2024.

1 The panelists are listed in order of seniority.