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Appeals Court Denies Motion to Dismiss Due to Delays by Commonwealth

calendar-1192688-300x231The Appeals Court affirmed the denial of the defendant’s motion to dismiss indictments charging drug offenses, in Commonwealth v. Polanco. In its decision, the Appeals Court ruled that the time that elapsed while the charges were pending in District Court should not be included in the speedy trial calculation under Mass.R.Crim.P. 36(b).

The background was as follows. In the course of a drug investigation in May, 2013, the police arrested the defendant. “On May 8, 2013, the Lowell District Court issued a complaint charging the defendant with several drug-related offenses and arraigned him [the] same day. After two months, a District Court judge dismissed the charges for failure to prosecute. Over one year later, on August 7, 2014, a Middlesex grand jury returned indictments arising from the same incident, charging the defendant with [the same offenses as those charged in the District Court complaint]. The defendant was arraigned in Superior Court on August 13, 2014. On October 30, 2014, the defendant moved to dismiss the charges, alleging a violation of rule 36(b).” The motion was “denied, the defendant was ultimately convicted of both charges by a jury,” and the defendant appealed.

In its decision, the Appeals Court stated, “Under rule 36(b)(1)(C), a defendant is entitled to dismissal if he is not brought to trial ‘within twelve months after the return day in the court in which the case is awaiting trial.’” “Because the case was awaiting trial in the Superior Court when the defendant moved to dismiss, the return date must be calculated from his August 13, 2014, arraignment in that court [not from the date of the defendant’s arraignment on the criminal complaint in District Court]. The Reporter’s Notes to Rule 36(b)(1) … are consistent with this conclusion, stating that, ‘if … the Commonwealth elects to proceed by direct indictment in a case commenced by complaint which is within the District Court’s jurisdiction[,] … the time limits of this rule begin anew upon the return day in the Superior Court.’”

The Appeals Court noted that “[i]f we were applying the constitutional right to a speedy trial, we would consider the time the charges were pending in District Court…. The Supreme Judicial Court … [has] determined that the issuance of a criminal complaint in the District Court is the appropriate start date for purposes of the defendant’s constitutional right to a speedy trial, even where the case is later moved to Superior Court…. The constitutional right to a speedy trial, however, is primarily concerned with protecting the rights of a defendant, whereas rule 36(b) is ‘primarily a management tool, designed to assist the trial courts in administering their dockets.’ Reporter’s Notes to Rule 36, Massachusetts Rules of Court, Rules of Criminal Procedure, at 209 (Thomson Reuters 2017). Accordingly, the contours of the constitutional right are not controlling; ‘the speedy trial calculus under rule 36 differs from the analysis applied to constitutional claims.’ [Commonwealth v.] Denehy, 466 Mass. [723,] 735 n.18 [2014].”

The Appeals Court did note, however, that, “[o]f course, in an appropriate case, a defendant has protection against unreasonable delays in Superior Court indictment by means other than rule 36(b). A defendant may move to dismiss … under the constitutional right to a speedy trial. A defendant may move to dismiss under Mass.R.Crim.P. 36(c),” which mandates dismissal where “the conduct of the prosecuting attorney in bringing the defendant to trial has been unreasonably [and prejudicially] lacking in diligence…. Commonwealth v. Sigman, 41 Mass. App. Ct. 574, 580 (1996). [Finally,] [a] defendant may move to dismiss on the ground of prejudicial preindictment delay. See Commonwealth v. Dame, 473 Mass. 524, 530-531 (2016).”

Delays in a defendant’s criminal case may negatively impact him or her in a variety of ways – from the psychological strain that ongoing criminal exposure may cause, to the inability to locate witnesses or other evidence that may no longer be available due to the passage of time. Challenging any such delays is extremely important and may result in the dismissal of a case. If you or a loved one is facing criminal charges and the case has been delayed by the Commonwealth, you will need a skilled and experienced attorney to mount a challenge on your behalf. Attorney Daniel Cappetta is well versed in the law and up to date on new legal developments that he can use to assist his clients to the fullest. Call him for a free consultation today.

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