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-599

KENNETH JAMES OTEY

vs.

COMMONWEALTH OF MASSACHUSETTS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Kenneth James Otey, filed a complaint in the 

Superior Court, claiming that he suffered an erroneous felony 

conviction and incarceration, and demanding compensation from 

the defendant (Commonwealth) pursuant to G. L. c. 258D. He 

claimed that he was entitled to compensation because a judge 

ultimately vacated his conviction and dismissed the underlying 

indictment. A Superior Court judge allowed the Commonwealth's 

motion to dismiss. We affirm.

Background. On March 2, 2008, the plaintiff pleaded guilty 

to distribution of a class B substance (cocaine), and a Superior 

Court judge sentenced him to State prison for three years to 

three years and one day. The defendant served his sentence that 

terminated on July 11, 2011. Seven years later, the Supreme 

Judicial Court issued an opinion in the case of Committee for 
2

Pub. Counsel Servs. v. Attorney Gen., 480 Mass. 700, 704 (2018), 

and dismissed thousands of convictions and pending charges

connected with the Amherst drug laboratory where an employee 

tampered with evidence in criminal cases. In accordance with 

that decision, on December 13, 2018, a single justice of the 

Supreme Judicial Court vacated the plaintiff's conviction and 

dismissed the charge with prejudice.

On December 10, 2021, the plaintiff filed a complaint (and 

later a first amended complaint) seeking compensation pursuant 

to G. L. c. 258D. The Commonwealth filed a motion to dismiss. 

Following a hearing, a judge allowed the motion to dismiss 

through an endorsement order. The judge reasoned that the 

plaintiff's conviction was not vacated "on grounds which tend to 

establish his innocence. G. L. c. 258D, § 1 (B) (ii). His 

conviction was vacated and dismissed for reasons unrelated to 

the merits of the indictments." Because the plaintiff's claim 

did not qualify for relief under the governing statute, the 

judge dismissed the complaint.

Discussion. "We review the allowance of a motion to 

dismiss de novo" (quotation and citation omitted). Verveine 

Corp. v. Strathmore Ins. Co., 489 Mass. 534, 538 (2022). "A 

motion to dismiss will be granted unless the factual allegations 

in the complaint are enough to raise a right to relief above the 

speculative level based on the assumption that all the 
3

allegations in the complaint are true (even if doubtful in 

fact)" (quotation and citation omitted). Id.

To recover damages against the Commonwealth for a wrongful 

conviction, the plaintiff must initially establish that he is 

within a "class of persons eligible to obtain relief." G. L. 

c. 258D, § 1 (B). As relevant here, that class of persons 

includes "those who have been granted judicial relief by a state 

court of competent jurisdiction, on grounds which tend to 

establish the innocence of the individual." G. L. c. 258D,

§ 1 (B) (ii). Such grounds must rest "upon facts and 

circumstances probative of the proposition that the [plaintiff] 

did not commit the crime" (quotation and citation omitted). 

Guzman v. Commonwealth, 458 Mass. 354, 362 (2010). Put another 

way, "a plaintiff must first show that the grounds for judicial 

relief were probative of his innocence." Riley v. Commonwealth, 

82 Mass. App. Ct. 209, 212 n.3 (2012).

Here, the judicial relief granted by the single justice was 

unrelated to the question of the plaintiff's innocence. 

According to the record, the single justice vacated the 

plaintiff's conviction "per order of the Supreme Judicial 

Court." The origin of that order comes from Committee for Pub. 

Counsel Servs., 480 Mass. at 723, 729, where the Supreme 

Judicial Court expressly eschewed relying upon a case-by-case 

adjudication and opted instead for a global remedy involving
4

thousands of cases impacted by improprieties at the Amherst drug 

laboratory. Thus, far from being "probative of his innocence," 

Riley, 82 Mass. App. Ct. at 212 n.3, the order of the single 

justice was based solely upon the fact that the cocaine in the 

plaintiff's case happened to be analyzed at the subject lab

during a certain time period. Nothing in the single justice's 

order suggests any "facts and circumstances probative of the 

proposition that the [plaintiff] did not commit the crime"

(quotation and citation omitted). Guzman, 458 Mass. at 362. 

Therefore, the plaintiff did not establish that he is within a 

"class of persons eligible to obtain relief." G. L. c. 258D,

§ 1 (B).

We disagree with the plaintiff's contention that the single 

justice's order bespeaks innocence. He contends that the order 

indicates innocence because misconduct at the Amherst drug 

laboratory merited the extraordinary remedy of dismissal, and 

there is no longer any available evidence showing that he 

committed a crime. The Supreme Judicial Court has rejected 

similar arguments. In Commonwealth v. Caliz, 486 Mass. 888, 892 

(2021), the court recognized the egregious misconduct related to 

the Amherst drub laboratory, but declined to equate "government 

misconduct" with "actual innocence." Also, a judicial remedy 

that results in the absence of a retrial due to "dismissal or 

nolle prosequi of the underlying criminal charge" does not 
5

equate with innocence. Peterson v. Commonwealth, 478 Mass. 434, 

439 (2017). Judicial remedies for "'procedural or evidentiary 

errors or structural deficiencies at . . . trial[] that could 

well be "consistent" with innocence without any tendency to 

establish it' would not meet the statutory definition." Irwin

v. Commonwealth, 465 Mass. 834, 846 (2013), quoting Guzman, 458 

Mass. at 358. Because the plaintiff's conviction was not 

vacated on grounds tending to establish innocence, he is not 

eligible for relief under G. L. c. 258D. Contrast 

Drumgold v. Commonwealth, 458 Mass. 367, 378 (2010) (grounds for 

relief probative of "reliability of the identification of [the 

defendant] as one of the shooters"); Guzman, supra at 365 

(grounds for judicial relief tend to establish innocence where

"erroneously omitted evidence was probative of the conclusion 

that the culprit was someone else").

The plaintiff's request for attorney's fees is denied.

Judgment affirmed.

By the Court (Shin, Brennan & 

Hodgens, JJ.1),

Assistant Clerk

Entered: March 14, 2024.

1 The panelists are listed in order of seniority.