Commonwealth v. Lance Hullum.

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

23-P-969

COMMONWEALTH

vs.

LANCE HULLUM.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from the denial of his postconviction

motion to dismiss the indictments against him. For the reasons

described below, we affirm.

Background. The matter before us has a rather long and

complicated procedural history which is helpful to understanding

the case and the narrow issue before us. The docket sheet shows

as follows: on December 2, 2020, almost four years ago, the

defendant filed a motion for deoxyribonucleic acid (DNA) testing

and analysis pursuant to G. L. c. 278A. On March 18, 2021, the

Commonwealth filed a motion to enlarge time to file a response

to defendant's motion for DNA testing and analysis. This was

allowed, and on April 2, 2021, the Commonwealth filed a
"[m]emorandum to assist the court in its evaluation of whether

the Defendant[']s motion for DNA testing and analysis should be

dismissed without a hearing," which is an evaluation required by

G. L. c. 278A, § 3 (e). Under § 3 (e), "[t]he prosecuting

attorney may provide a response to the motion, to assist the

court in considering whether the motion meets the requirement

under this section." On June 18, 2021, almost three years ago,

a judge of the Superior Court issued a thorough and thoughtful

nine-page opinion that took into consideration both the

defendant's filings and the Commonwealth's filing, described by

the judge as "argu[ing] that the defendant's motion failed to

meet the requirements of G. L. c. 278A, §§ 2 and 3." The judge

wrote "the defendant's Motion for DNA Testing and Analysis

Pursuant to G. L. c. 278A, § 3, is ALLOWED."

To some extent, the issues addressed before us appear to

derive from substantial confusion between the parties based on

the language of the judge's order stating that the motion under

§ 3 was "allowed." Although at first blush it might appear that

that is exactly what the judge did -– which is how the defendant

appears to understand the proceedings below -– in fact,

"Chapter 278A creates a two-step procedure for requesting
DNA testing or analysis. First, a threshold determination
is made by the court in which the conviction was entered as
to whether the motion meets the preliminary criteria set
forth in G. L. c. 278A, § 3. If those criteria are met, a
hearing 'shall' be conducted pursuant to G. L. c. 278A,
§§ 6 and 7, to determine whether a petitioner has

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established by a preponderance of the evidence sufficient
facts for a judge to order DNA testing or further
discovery."

Commonwealth v. Wade, 467 Mass. 496, 501 (2014).

As to ultimately allowing a motion, G. L. c. 278A, § 3 (e),

provides that "[t]he court shall notify the moving party and the

prosecuting attorney as to whether the motion is sufficient to

proceed under this chapter or is dismissed." Section 4 (b)

provides that

"If the motion is not dismissed by the court under
subsection (e) of section 3, the prosecuting attorney shall
file a response with the court within 60 days after the
date upon which the court issues notice under said
subsection (e) of said section 3, and shall simultaneously
serve the response on the moving party. The prosecuting
attorney may request additional time in which to file the
response, which the court may grant for good cause shown."

G. L. c. 278A, § 4 (b). Section § 7 (a) of the statute provides

for what the Supreme Judicial Court has described as an

"evidentiary hearing," Wade, 467 Mass. at 503, and states:

"After reviewing the motion, the prosecuting attorney's
response and after holding a hearing, the court shall state
findings of fact and conclusions of law on the record, or
shall make written findings of fact and conclusions of law
that support the decision to allow or deny a motion brought
under section 3."

G. L. c. 278A, § 7 (a).

The filing by the Commonwealth was captioned consistent

with the language in § 3 (e), and the substantive conclusion of

the judge's June 18, 2021 order was "the court concludes that

the defendant's motion satisfies the required elements of G. L.

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c. 278A, § 3." We conclude therefore that, as the Commonwealth

argues, despite the use of the word "allowed," the judge's June

18, 2021 order in fact made only the step-one determination.

The second step appears not yet to have been undertaken.

Following the judge's June 18, 2021 order, the Commonwealth

moved for reconsideration. On October 12, 2021, the defendant

filed a motion to dismiss the indictments, purportedly pursuant

to G. L. c. 278A, §§ 16 and 17, and Mass. R. Crim. P. 13 (a) (2)

and (4), as appearing 442 Mass. 1516 (2004). It is that motion

that primarily concerns us.

On December 20, 2021, six months after the June 18, 2021

order, the judge denied the Commonwealth's motion for

reconsideration, but allowed a motion to enlarge time for the

Commonwealth to file its response under G. L. c. 278A, § 4. On

that date, the Commonwealth was given sixty days. The

Commonwealth sought yet another enlargement on February 14,

2022, which was allowed until April 7, 2022. On that date, the

§ 4 response was finally filed.

On June 24, 2022, the judge held a hearing, described in

the docket as "an argument regarding the Pending DNA motions."

The Commonwealth describes it as the first part of the

postconviction DNA hearing, but it does not appear to have been

an evidentiary hearing at all. The docket states that after the

hearing the judge sought

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"supplemental filings. Counsel for the defendant will file
a supplemental motion under 278A seeking additional
comparative testing and may also file a supplement to his
motion to dismiss. Those motions to be filed by August 19,
2022. Commonwealth may file a response to either or both
and those responses will be due on September 9, 2022. No
next date is chosen for this case. Court will schedule a
hearing date if necessary following the filings stated
above."

A year later, on June 2, 2023, the judge entered an

endorsement on the motion to dismiss the indictments stating,

"Motion DENIED. Rule 13 Motions are Pretrial Motions.

Defendant pled guilty on 11/27/90. Other Motions were Post

Conviction Motions. The requested remedy of dismissal is not

available under 278A, 16 and 17." For aught that appears in the

record, no hearing has been held on the § 3 motion, nor has it

been finally ruled on.

Eighteen days after the denial of the motion to dismiss,

the defendant filed a timely notice of appeal. That is the

appeal before us. On that date the defendant also filed a

motion for reconsideration on the basis that denying relief

without findings of facts would hamper appellate review. The

passage of more than ten days meant that the finality of the

order was not suspended by the filing of the motion. Mass.

R. A. P. 4 (a) (1) and (2) (c), as appearing in 481 Mass. 1606

(2019). In denying the motion for reconsideration, the judge

again noted that

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"The denial of the defendant's current motion does not
prohibit him from filing a Motion to Vacate the Plea
pursuant to Rule 30 of the Massachusetts Rules of Criminal
Procedure. This Rule is often used to attac[k] the
validity of past pleas or trials. This Rule is, in fact,
entitled Post Conviction Relief." 1

Discussion. Much of the defendant's appeal addresses his

motion under § 3. He appears to believe that the motion was

allowed on June 18, 2021, but that either that order was never

enforced, or the judge denied the § 3 motion after having

initially allowed it. He also makes some arguments about the

§ 4 filing made by the Commonwealth.

As noted above, the only appeal before us is an appeal from

the denial of the motion to dismiss the indictments. Although

some of our cases discuss the possibility of appealing from a

failure of a judge to act on a motion, see Crooker v.

Superintendent, Mass. Correctional Inst., Norfolk, 19 Mass. App.

Ct. 315, 317 n.2 (1985), there is nothing to show that the

defendant did that here.

To be sure, following the June 18, 2021 order, in the

ordinary course, after receipt of the Commonwealth's § 4 filing,

an evidentiary hearing should have been held under G. L.

c. 278A, § 7. That appears not to have been done, though we

have not seen the various filings considered at the June 24,

1 The defendant did not appeal from the denial of the motion
for reconsideration.

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2022, hearing, nor the arguments made there. By noting this, we

do not mean to suggest that the judge has been anything but

careful and thoughtful in his handling of this case. In any

event, not only is the delay in the process not before us, the

remedy of relief for any delay in the proceedings that should

follow the June 18, 2021 order must be sought, in the first

instance, in the Superior Court.

This brings us to the argument the defendant makes about

dismissal of the indictments. He argues that dismissal of the

indictments was warranted due to the loss, destruction, or

failure to disclose evidence, including what he describes as an

admitted switch of DNA samples.

We need not and do not reach the merits of this claim,

because we agree with the motion judge that neither rule 13 nor

G. L. c. 278A provide for dismissal of indictments as a

postconviction remedy. The judge therefore did not abuse his

discretion in denying the motion to dismiss the indictments. As

the judge subsequently noted, his decision is without prejudice

to the defendant filing a proper motion for such relief under

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Mass. R. Crim. P. 30, as appearing 454 Mass. 1501 (2001), which

may be brought at any time.

Order denying motion to
dismiss indictments
affirmed.

By the Court (Rubin,
Desmond & Singh, JJ. 2),

Clerk

Entered: December 4, 2024.

2 The panelists are listed in order of seniority.

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