Commonwealth v. Feeney
Commonwealth v. Feeney
Opinion of the Court
On February 19, 1987, the defendant was found guilty after a District Court bench trial of breaking and entering a motor vehicle in the nighttime with intent to commit a misdemeanor. See G. L. c. 266, § 16A. He was sentenced to probation for one year with an order with respect to restitution. The defendant timely appealed for a de nova trial in the District Court jury-of-six session, see G. L. c. 218, § 27A, where a mandatory pretrial conference, see
On appeal, the defendant argues that his failure to appear at the pretrial conference was not a “solid” default justifying reinstatement of the lower court sentence. See Commonwealth v. Coughlin, 372 Mass. 818, 821 (1977); Commonwealth v. Higgins, 23 Mass. App. Ct. 552, 558 (1987) (in order for judge to apply G. L. c. 278, § 24, and impose the lower court sentence, the defendant’s default must be “solid”). Alternatively, the defendant claims that the judge failed to perceive the discretionary nature of the imposition of a default under G. L. c. 278, § 24.
1. A solid default occurs “when a defendant fails through his own conduct to appear in court for proceedings which require his presence.” Commonwealth v. McVicker, 20 Mass. App. Ct. 713, 716 (1985). The defendant’s presence for purposes of an appeal to a District Court jury session under G. L. c. 218, § 27A, is required at trial. See Commonwealth v. Espinoza, 28 Mass. App. Ct. 65, 66-67 (1989). Such an escalated trial is not, however, the only related court proceeding which demands a personal appearance by the defendant.
The procedural rule with which we are concerned provides: “The defendant shall be available for attendance at the pretrial conference” (emphasis supplied). Mass.R.Crim.P. 11(a)(1), 378 Mass. 862 (1979).
2. The defendant next argues that, even if the failure to attend a pretrial conference may constitute a solid default, the judge proceeded under the misapprehension that he was without discretion in applying G. L. c. 278, § 24. As a result, the defendant says, the court deprived him of the “informed exercise of . . . discretion,” to which he was entitled. Commonwealth v. Brennick, 14 Mass. App. Ct. 952, 953 (1982).
Attempting to determine whether to default the defendant and impose the lower court sentence, the judge asked, “What other possible remedy does the court have if [the defendant] decides not to appear” for the pretrial conference? The ques
“In testing whether the exercise of discretion to declare a solid default has been sound, we consider the conduct of the defendant and the inquiry made by the judge into the circumstances of the defendant’s absence.” Commonwealth v. Espinoza, 28 Mass. App. Ct. at 68. In addition to inquiring about alternative remedies, the judge specifically asked the defendant’s counsel for an explanation of his client’s absence. Counsel responded: “He had to attend a funeral for ... a friend of the family. That’s the only reason he is offering to the court.”
Understandably, the defendant’s counsel’s explanation at the hearing on the default motion that the defendant decided to attend the funeral of an unidentified “friend of the family” rather than the pretrial conference, made some sixteen months after the default and after the defendant’s arrest on the warrant, could have been, and was, viewed skeptically by the judge. His implicit conclusion that the defendant’s decision reflected a conscious disregard of the duty to be avail
Judgment affirmed.
The statute provides, in pertinent part: “If [an] appellant fails to enter and prosecute his appeal, he shall be defaulted on his recognizance and the jury-of-six session may impose sentence upon him for the crime of which he was convicted, as if he had been convicted in said court. . . .” G. L. c. 278, § 24, as amended by St. 1978, c. 478, § 305.
At oral argument, the defendant’s counsel properly conceded that the record supports a conclusion that the defendant was not “available,” even
The defendant’s reliance on Commonwealth v. Bartlett, 374 Mass. 744, 745, 748 (1978), is misplaced. While the Supreme Judicial Court held in that case that the failure to appear for a pretrial conference was not a solid default, the case was decided before the promulgation of Mass.R.Crim.P. 11(a). See Commonwealth v. McVicker, 20 Mass. App. Ct. at 716.
Nor is the defendant aided by Commonwealth v. Espinoza, 28 Mass. App. Ct. at 66. In Espinoza, this court suggested that the failure to appear for a pretrial conference leading to a bench trial would not ordinarily be a solid default. Because the defendant in Espinoza had not been tried and convicted prior to missing the scheduled conferences, the default provisions of G. L. c. 278, § 24, were inapplicable.
In reply, the defendant’s counsel proposed that the case be “deemed fully conferenced and set down for trial,” and that “all motions [be] waived.” These suggested sanctions are those outlined conjunctively in Mass.R.Crim.P. 11(a)(2)(B), 378 Mass. 864 (1979), for the failure to file a pretrial conference report and to appear at a scheduled pretrial conference. Assuming, without deciding, that these remedies also apply to the failure only to appear at the pretrial conference itself, they are not exclusive. “The parties shall be subject to such other sanctions as the judge may impose.” Mass.R.Crim.P. 11(a)(2)(B).
See note 2, supra.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.