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SJC-12766

HELLEN KIAGO-WILSON vs. COMMONWEALTH.

November 12, 2019.

Supreme Judicial Court, Superintendence of inferior courts. Practice, Criminal, Sentence.

Hellen Kiago-Wilson appeals from a judgment of the county court denying her petition for relief under G. L. c. 211, § 3. After a jury trial in the Superior Court, she was convicted of making false Medicaid claims and of larceny by false pretenses and was sentenced to a term of incarceration. Before sentencing, Kiago-Wilson, stating that she was the primary caretaker of a dependent child, filed a motion requesting that the judge consider the provisions of G. L. c. 279, § 6B. 1 In her petition under G. L. c. 211, § 3, she argued that the judge violated § 6B by sentencing her to a term of incarceration without making the necessary findings, and she requested that

1 General Laws c. 279, § 6B, provides in relevant part:

"Unless a sentence of incarceration is required by law, the court may, upon conviction, consider the defendant's status as a primary caretaker of a dependent child before imposing a sentence. A defendant may request such consideration, by motion supported by an affidavit, not more than [ten] days after the entry of judgment. Upon receipt of such a motion supported by an affidavit, the court shall make written findings concerning the defendant's status as a primary caretaker of a dependent child and alternatives to incarceration. If such a motion has been filed, the court shall not impose a sentence of incarceration without first making such written findings." 2

she be released immediately. A single justice of this court denied relief on the ground that Kiago-Wilson had an adequate alternative remedy. We affirm.

Kiago-Wilson has filed a memorandum and appendix pursuant to S.J.C. Rule 2:21, as amended,

(2001), which requires a party challenging an interlocutory ruling of the trial court to "set forth the reasons why review of the trial court decision cannot adequately be obtained on appeal from any final adverse judgment in the trial court or by other available means." S.J.C. Rule 2:21 (2). That rule does not apply, as Kiago-Wilson is not challenging an interlocutory ruling. Rather, she is challenging her sentence, which is part of the final judgment of the trial court. Nonetheless, it is clear on the record that she has a remedy in the ordinary appellate process, as she can raise her claims under G. L. c. 279, § 6B, on direct appeal from her convictions. Moreover, although it appears that Kiago-Wilson unsuccessfully moved for a stay of her sentence in the Superior Court, it does not appear on the record that she has sought a stay of execution of sentence (or any other type of relief) from a single justice of the Appeals Court, the court in which her direct appeal will be entered. See Mass. R. A. P. 6 (b), as appearing in

(2009); Mass. R. Crim. P. 31 (a), as appearing in

(2009). Where she had these ordinary means to challenge her sentence and, if warranted, to be released pending appeal, the single justice did not err or abuse her discretion by denying extraordinary relief.

Judgment affirmed.

The case was submitted on the papers filed, accompanied by a memorandum of law.

S. James Boumil, Jr., for the petitioner.