Commonwealth v. Franklin Abernathy.

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-317

COMMONWEALTH

vs.

FRANKLIN ABERNATHY.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant was convicted by a jury of the Superior

Court, of two counts of breaking and entering a building with

the intent to commit a felony, G. L. c. 266, § 18, and one count

of possession of burglarious instruments, G. L. c. 266, § 49.

He was then arraigned on three counts of being a habitual

offender under G. L. c. 279, § 25, and, after a jury-waived

trial, was found guilty. The defendant now appeals from the

denial of his postconviction motion for required findings of not

guilty and resentencing, arguing that the Commonwealth did not

present sufficient evidence for his convictions as a habitual

offender. We affirm.

Procedural background. In 2007, a Suffolk County grand

jury indicted the defendant on two counts of breaking and

entering a building with the intent to commit a felony in
violation of G. L. c. 266, § 18, one count of possession of

burglarious tools in violation of G. L. c. 266, § 49, and one

count of resisting arrest in violation of G. L. c. 268, § 32B.1

The defendant was also indicted as a habitual offender under

G. L. c. 279, § 25, for each of these offenses. In the

indictments and at the grand jury, the Commonwealth relied on

convictions from 2002 and 2004 to satisfy the requirement under

G. L. c. 279, § 25, that the defendant had been previously

convicted and sentenced to State prison for a term of three

years or more.2

In 2017, after mounting a series of unsuccessful appeals,3

the defendant, while acting pro se, filed a motion to correct an

illegal sentence. In an unpublished decision, a different panel

of this court affirmed the sentence, rejecting the defendant's

contention that he could not be given to consecutive sentences.

The defendant later filed the motion at issue, for required

findings of not guilty under Mass. R. Crim. P. 25 (b) (2), as

amended, 420 Mass. 1502 (1995), challenging the sufficiency of

1 At the close of the Commonwealth's case, the judge allowed the
defendant's motion for a required finding of not guilty of
resisting arrest.
2 The Commonwealth presented the grand jury with evidence

relating to convictions on September 9, 2002, and December 1,
2004.
3 See Commonwealth v. Abernathy, 93 Mass. App. Ct. 1107 (2018);

Commonwealth v. Abernathy, 91 Mass. App. Ct. 1119 (2017);
Commonwealth v. Abernathy, 85 Mass. App. Ct. 1117 (2014).
Further review was denied in all three appeals.

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the evidence underlying the habitual offender convictions. A

judge of the Superior Court denied the defendant's motion on the

ground of direct estoppel, reasoning that the unpublished

decision by the Appeals Court panel was binding on the

defendant. The Commonwealth urges us to affirm the defendant's

convictions on this basis, but also argues in the alternative

that there was sufficient evidence to convict the defendant as a

habitual offender.

Discussion. 1. Direct estoppel. In Commonwealth v.

Arias, 488 Mass. 1004, 1007 (2021), the Supreme Judicial Court

announced that claim preclusion and estoppel apply to a motion

under rule 25 (b) as well as to a motion for a new trial filed

under Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501

(2001). Direct estoppel, a form of claim preclusion, applies

when the following three conditions are met: first, the current

issue was litigated and determined; second, the determination

was essential to the defendant's conviction; and third, the

defendant had an opportunity to obtain review of that

determination. Commonwealth v. Sanchez, 485 Mass. 491, 498

(2020); Commonwealth v. Rodriguez, 443 Mass. 707, 710 (2005).

In addition to direct estoppel, the doctrine of waiver comes

into play when a defendant fails to address an issue that could

have been raised on direct appeal or in a prior motion for a new

trial.

3
Here, the defendant is estopped from relitigating the

question of the sufficiency of the evidence because all three

criteria of direct estoppel have been met. The first criterion,

whether the current issue was litigated and determined, was met

when the defendant had the opportunity to litigate his motion

for relief from an illegal sentence. Although the defendant

focused on the imposition of consecutive sentences on the

habitual offender convictions and did not challenge the

sufficiency of the evidence, the Commonwealth responded by fully

briefing the issue of the sufficiency of the evidence and then

analyzed the claim whether the defendant's consecutive sentences

were illegal. A panel of this court acknowledged the importance

of the sufficiency of the evidence to the defendant's arguments

when it specifically stated that the evidence established at the

time of his convictions that he "had previously been convicted

four times and had, on each offense, been committed to State

prison for a term of three years or more." Commonwealth v.

Abernathy, Mass. App. Ct., No. 17-P-904, unpub. op. at *2 (Apr.

26, 2018). The panel specifically stated that the defendant did

not claim otherwise. Id.

The second criterion, whether the determination was

essential to the defendant's conviction, has also been met,

because the sufficiency of the evidence was central to the

panel's determination that the defendant's sentences were not

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illegal; the evidence must have been sufficient for the

sentences to stand.

Finally, the third criterion, whether the defendant had an

opportunity to obtain review of the previous determination, was

also met. The defendant not only had an opportunity for review,

but actually sought further appellate review, which was denied.

See 480 Mass. 1107 (2018).

2. Sufficiency of the evidence. Recognizing that the

defendant was pro se when filing his motion claiming he received

an illegal sentence and that the doctrine of direct estoppel is

not absolute, Sanchez, 485 Mass. at 500, we choose to turn to

the substantive issue claimed by defendant: whether the

Commonwealth presented sufficient evidence to support the

habitual offender convictions.4 Here, even if we overlook that

the defendant is estopped, we remain unpersuaded by the

defendant's arguments.

The familiar standard for reviewing the denial of a motion

for a required finding of not guilty is whether, when "viewing

the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt" (citation omitted).

4 The defendant concedes that the evidence was sufficient to
prove beyond a reasonable doubt that he was convicted on
December 1, 2004.

5
Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).

Circumstantial evidence can be considered along with inferences

that are "not too remote in the ordinary course of events"

(citation omitted). Commonwealth v. Hall, 397 Mass. 466, 469

(1986).

The habitual offender statute, G. L. c. 279 § 25 (a),

provides as follows:

"[w]however is convicted of a felony and has been
previously twice convicted and sentenced to state prison
. . . for a term not less than 3 years . . . shall be
considered a habitual criminal and shall be punished by
imprisonment in state prison . . . for such felony for the
maximum term provided by law."

We review the evidence in the light most favorable to the

Commonwealth to determine if the Commonwealth sufficiently

showed that the defendant was previously twice convicted of a

felony and sentenced to State prison for at least three years.

Latimore, 378 Mass at 677. At trial, the Commonwealth called

Boston Police Officer Kimberly Platt, who was the booking

officer for the underlying crimes, and who obtained biographical

information from the defendant, provided him with Miranda

warnings, and fingerprinted him. Officer Platt identified the

defendant in the courtroom as the same individual whom she

booked at the station. The booking form, which was introduced

in evidence, contained a picture of the defendant and the

defendant's date of birth, height, eye color, Social Security

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number, and approximate weight, as reported to Officer Pratt by

the defendant.

The Department of Correction (DOC) fingerprint cards from

the defendant's 1988 and 1992 incarcerations, which were not the

convictions the Commonwealth used to establish the defendant was

a habitual offender during grand jury proceedings, were

introduced in evidence and included the defendant's photograph,

physical description, name, date of birth, and mother's name

(most of the biographical information is consistent with the

booking information provided by the defendant to Officer Platt).

The 1988 fingerprint card indicated that the defendant's

sentence was three to five years in State prison. The 1992

fingerprint card also had a photograph of the defendant at the

State prison; a description of the crime as breaking and

entering a building and the sentence as four to ten years; the

defendant's name, age, height, weight, and eye color; and other

unique identifiers. The DOC fingerprint card for the

defendant's 2004 sentence included his name, date of birth,

Social Security number, and home address, and listed the

conviction as larceny from a building with a sentence of from

three years to three years and one day. Furthermore, Rachel

Lemery, a senior criminalist with the latent print unit of the

Boston Police Department, testified for the Commonwealth that

she compared the three sets of fingerprints from the DOC

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fingerprint cards and opined that all three were from the same

person, Franklin Abernathy.5 The Commonwealth then introduced a

certified docket of the case underlying the 2004 conviction

containing the defendant's name and address and a docket entry

indicating that, after pleading guilty, the defendant's sentence

was to be served concurrent with that imposed on the 2002

conviction. Since the defendant concedes that this is

sufficient for the 2004 conviction and sentence, the only issue

before us whether the Commonwealth properly established the 2002

conviction. However, in a challenge to the sufficiency of the

evidence that the defendant was convicted and sentenced to a

State prison for three years or more, we do not limit our

analysis to evidence directly associated to the 2002 conviction.

We conclude the Commonwealth properly established the 2002

conviction. The Commonwealth introduced the grand jury

indictments from 1999 of which the defendant was convicted in

2002, containing the defendant's name, charges, and

corresponding docket number along with three pages of certified

docket sheets of the same docket number showing that the

defendant pleaded guilty and was sentenced to a term of three

5 The DOC fingerprint cards, which included the defendant's
picture, residential address, mother's and father's names,
Social Security number, date of birth, height, and weight, were
introduced as Exhibits 2, 3, and 4. The report generated by the
fingerprint examiner was introduced as Exhibit 5.

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years to three years and one day "each concurrent with sentence

imposed on 98-11917" (emphasis added). The docket further notes

"[d]efendant having been in custody more than 3 Years 1 Day,

Court orders sentence deemed served."

Here, when determining if the Commonwealth met its burden

of proof, the judge properly reasoned that she was not limited

to considering the 1999 docket relating to the 2002 conviction

and could consider other evidence that the Commonwealth

introduced. In announcing her verdict, the judge reasoned:

"And in making my decision, the Court is permitted to look
at all of the evidence, including not just Mr. Abernathy's
name but all identifying information, the fingerprints, and
together with reasonable inferences that the Court can draw
from all of the evidence. I mean clearly, this is not a
case of the Commonwealth just showing a name and a docket
sheet, but rather there has been ample evidence to satisfy
this Court, to prove well beyond a reasonable doubt that
Franklin Abernathy who sits in this courtroom today is in
fact the Franklin Abernathy who has been convicted on the
prior occasions as, set forth in the . . . exhibits."

There was more than enough evidence for the judge to find

that the Commonwealth sustained its burden of proving that the

defendant was twice previously convicted and sentenced to a

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State prison term of three years or more.

Order denying motion for
required findings of not
guilty and for resentencing
affirmed.

By the Court (Meade,
Wolohojian & Walsh, JJ.6),

Clerk

Entered: May 10, 2023.

6 The panelists are listed in order of seniority.

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