Commonwealth v. Alan J. Mosher.

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-88

COMMONWEALTH

vs.

ALAN J. MOSHER.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This appeal arises from an order entered in the District

Court denying the defendant's motion for release under Mass. R.

Crim. P. 30 (a), as appearing in 435 Mass. 1501 (2001), seeking

to stay or to vacate his sentence for assault and battery on a

household member in light of the threat to his health posed by

incarceration during the COVID-19 pandemic. After a hearing,

the motion judge issued a memorandum and order denying the

defendant's motion, concluding that the defendant's sentence did

not violate the Eighth Amendment to the United States

Constitution or art. 26 of the Massachusetts Declaration of

Rights, and that, regardless, the motion judge did not have the

authority to grant the relief sought. On appeal, the defendant

argues that he is entitled to relief because (1) the motion

judge did have the authority to order his release under Mass. R.
Crim. P. 30 (a), and (2) his sentence was cruel and unusual. 1 We

affirm.

Discussion. 1. Relief under rule 30 (a). The defendant

first argues that the motion judge had the authority to order

his release under rule 30 (a), which provides:

"Any person who is imprisoned or whose liberty is
restrained pursuant to a criminal conviction may at any
time, as of right, file a written motion requesting the
trial judge to release him or her or to correct the
sentence then being served upon the ground that the
confinement or restraint was imposed in violation of the
Constitution or laws of the United States or of the
Commonwealth of Massachusetts" (emphasis added).

"We review the judge's denial of a rule 30 (a) motion for abuse

of discretion or error of law." Commonwealth v. Sharma, 488

Mass. 85, 89 (2021).

The defendant has not argued that his sentence was imposed

illegally, but, rather, that the newly emergent, fact-specific

conditions of his confinement render that confinement

unconstitutional. Assuming without deciding that the

defendant's constitutional argument has merit, the proper

vehicle for such a claim would be an original action asserting

that claim. 2 See Committee for Pub. Counsel Servs. v. Chief

1 The defendant's rule 30 (a) motion was denied on April 7, 2020,
and the defendant filed an appeal from that order on the same
day. The defendant further filed a motion for a stay of
execution pending appeal on the following day. The judge
granted that latter motion on April 15.
2 Barring such a claim, judges have limited authority to release

inmates serving custodial sentences due to the threats posed by

2
Justice of the Trial Court (No. 2), 484 Mass. 1029, 1031 n.4

(2020) (CPCS II) ("[an original action] is the proper vehicle by

which to seek injunctive relief"). See also, e.g., Foster v.

Commissioner of Correction (No. 1), 484 Mass. 698 (2020).

Motions under rule 30 (a) are reserved for circumstances in

which the sentence was illegal at the time it was imposed. See

Commonwealth v. Costa, 472 Mass. 139, 143 (2015) (permitting

rule 30 (a) motion because of retroactive effect). As such,

there was no error.

2. Constitutional claim. Irrespective of the suitability

of the defendant's motion, we exercise our discretion to review

his claim of constitutional error. The Eighth Amendment and

art. 26 "require the Commonwealth to furnish conditions of

confinement that do not create an unreasonable risk of future

harm to inmate health and safety . . . ." Committee for Pub.

Counsel Servs. v. Chief Justice of the Trial Court, 484 Mass.

COVID-19. As the Supreme Judicial Court explained in Committee
for Pub. Counsel Servs. v. Chief Justice of the Trial Court, 484
Mass. 431, 450 (2020) (CPCS I):

"Our broad power of superintendence over the courts does
not grant us the authority to authorize courts to revise or
revoke defendants' custodial sentences, to stay the
execution of sentence, or to order their temporary release
unless a defendant (1) has moved under Mass. R. Crim.
P. 29, within sixty days after imposition of sentence or
the issuance of a decision on all pending appeals, to
revise or revoke his or her sentence, (2) has appealed the
conviction or sentence and the appeal remains pending, or
(3) has moved for a new trial under Mass. R. Crim. P. 30."

3
431, 441 (2020) (CPCS I). "To reach the level of cruel [or]

unusual, [a] punishment must be so disproportionate to the crime

that it 'shocks the conscience and offends fundamental notions

of human dignity.'" Diatchenko v. District Attorney for the

Suffolk Dist., 466 Mass. 655, 669 (2013), S.C., 471 Mass. 12

(2015), quoting Cepulonis v. Commonwealth, 384 Mass. 495, 497

(1981).

The defendant asserts that his continued incarceration in

light of COVID-19 constitutes cruel and unusual punishment under

the Eighth Amendment or art. 26. We are not persuaded. As the

motion judge noted in his memorandum and order, the defendant's

claim of increased medical risk was "not supported by medical

records or an affidavit or report from his medical provider."

The motion judge was not required to credit the defendant's

self-serving claim of medical ailment. See Commonwealth v.

Leng, 463 Mass. 779, 787 (2012). See also Commonwealth v.

Wheeler, 52 Mass. App. Ct. 631, 637 (2001). The motion judge

was also not required to credit the representations contained in

the other affidavits offered by the defendant, 3 including that

twenty percent of high-risk individuals who had contracted

COVID-19 in China had died and that Chinese patients with

3 The defendant submitted affidavits from his counsel, two
epidemiologists, and three medical doctors, in addition to a
letter from a third epidemiologist.

4
cardiovascular disease experienced a ten and one-half percent

fatality rate. See Commonwealth v. Lopez, 426 Mass. 657, 663

(1998). In his brief before this court, the defendant

criticizes the Commonwealth for failing to provide evidence

showing that he is no more at risk in prison than among the

general population. However, as the rule 30 (a) movant, the

burden was on the defendant to make a sufficient showing that he

is entitled to the relief requested. See Commonwealth v.

DiCicco, 470 Mass. 720, 734-735 (2015). See also Lopez, supra

at 661-662. Without more, we discern no error. See CPCS I, 484

Mass. at 441.

Order dated April 7, 2020,
denying motion for release
affirmed.

By the Court (Henry,
Desmond & Englander, JJ. 4),

Clerk

Entered: August 24, 2023.

4 The panelists are listed in order of seniority.

5