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SJC-13046

COMMONWEALTH vs. RONNIE M. HARRIS.

April 29, 2021.

Practice, Criminal, Sentence, Execution of sentence, Stay of 

proceedings.

The defendant, Ronnie M. Harris, was convicted of murder in 

the second degree and other offenses in 1975, and we affirmed 

the convictions after plenary review under the version of G. L. 

c. 278, § 33E, then in effect. Commonwealth v. Harris, 376 

Mass. 201 (1978) (Harris I). In 2019, the defendant filed a 

motion for a new trial, which was denied. His appeal from that 

ruling is pending in the Appeals Court.1 The defendant also 

filed, in the Superior Court, a motion to stay execution of his 

sentence pursuant to Mass. R. Crim. P. 31, as appearing in 454 

Mass. 1501 (2009), arguing that his age and medical condition 

placed him at a heightened risk of illness and death from COVID19.2 After that motion was denied, the defendant filed a similar 

motion in the Appeals Court pursuant to Mass. R. A. P. 6 (b), as 

appearing in 481 Mass. 1608 (2019), seeking a stay of his 

1 Although he received plenary review of his conviction of 

murder in the second degree, the defendant was not obligated to 

seek leave to appeal pursuant to the gatekeeper provision of 

G. L. c. 278, § 33E. See Greene v. Commonwealth, 385 Mass. 

1008, 1009 (1982).

2 It appears that, due to delays in the Superior Court 

clerk's office, the defendant was not aware that his motion for 

a new trial had been denied when he filed his motion for a stay. 

At the time, the defendant was not seeking to be released 

pending any appeal, but to be released until the end of the 

COVID-19 pandemic.
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sentence pending appeal from the denial of his motion for a new 

trial. A single justice of the Appeals Court denied the motion, 

and a panel of the Appeals Court affirmed the denial in an 

unpublished memorandum and order. Commonwealth v. Harris, 98 

Mass. App. Ct. 1110 (2020) (Harris II). We granted the 

defendant's application for further appellate review and 

requested supplemental memoranda concerning the parties'

positions as to the panel's decision and the question whether 

and in what circumstances a judge or a single justice has 

authority to grant a stay of execution of a sentence pending 

appeal from the denial of a motion for a new trial, as opposed 

to a direct appeal from a conviction. After considering those

memoranda along with the papers filed in the single justice and 

panel sessions of the Appeals Court, we affirm.3

Before us is the defendant's appeal from the decision of 

the single justice of the Appeals Court denying his motion for a 

stay. We review that decision for error of law or abuse of 

discretion. Commonwealth v. Nash, 486 Mass. 394, 412 (2020). 

Here, the single justice of the Appeals Court both determined 

that the motion judge did not err or abuse her discretion by 

denying a stay and independently denied a stay after considering 

the matter under the factors articulated in Christie v. 

Commonwealth, 484 Mass. 397 (2020), and Commonwealth v. Hodge

(No. 1), 380 Mass. 851 (1980). See Nash, supra at 410-411 

(appellate single justice may take either approach or both 

approaches). We, however, "do[] not exercise [our] own 

independent discretion to evaluate the request for a stay; 

rather, [we] review[] the correctness of the single justice's 

ruling." Id. at 412.

In Nash, 486 Mass. at 402-412, we recently clarified the 

legal standards governing motions pursuant to Mass. R. Crim. P. 

31 and Mass. R. A. P. 6 (b) to stay execution of sentences

pending appeals from criminal convictions, particularly during

the COVID-19 pandemic. A judge considering such a motion must 

consider three factors: "(1) the defendant's likelihood of 

success on appeal, (2) certain security factors [e.g., the risk 

of flight and the danger to any other person or to the 

community], and (3) certain risks associated with the pandemic." 

Id. at 403. We particularly emphasized, as to the first factor, 

that "the defendant must show that there is at least one 

appellate issue of sufficient heft that would give an appellate 

3 We acknowledge the amicus letter filed by the Committee 

for Public Counsel Services, the Massachusetts Association of 

Criminal Defense Lawyers, and the New England Innocence Project.
3

court pause -- in other words, one or more issues that require a 

legitimate evaluation, that would engender a dialectical 

discussion among an appellate panel where both sides find some 

substantive support, and that would, if successful, lead to a 

favorable outcome for the defendant." Id. at 404. As to the 

COVID-19 factor, we clarified our decision in Christie, 484 

Mass. at 400-401, in which we first directed judges to consider 

the risks posed by the COVID-19 pandemic when deciding a motion 

for a stay of execution pending appeal. We stated that "[i]t is 

not incumbent on a defendant seeking a stay to prove that COVID19 is present, let alone rampant, at the facility where he or 

she is incarcerated, or that the defendant is at an especially 

high personal risk because of his or her age or medical 

condition." Nash, supra at 406-407. It is not appropriate to 

use the COVID-19 factor against the defendant: for example, the 

fact "that an individual defendant is not known to be at a 

particularly high risk from the dangers of COVID-19 should not 

be taken as a reason to deny a stay." Id. at 409. The COVID-19 

factor should be applied so as to fulfill "[o]ur objective in 

Christie[, which] was to reduce temporarily the prison and jail 

populations, in a safe and responsible manner, through the 

judicious use of stays of execution of sentences pending 

appeal." Id. at 406.

This case, however, stands on a significantly different 

procedural footing from Nash. The defendant is not seeking a 

stay of his sentence pending appeal from his conviction; his 

conviction was affirmed over forty years ago. Rather, he is 

seeking a stay pending appeal from the denial of his motion for 

a new trial. The Rules of Criminal Procedure do not mention a 

stay of execution of sentence in this procedural posture. 

Indeed, even where a motion for a new trial is allowed, Mass. R. 

Crim. P. 30 (c) (8) (A), as appearing in 435 Mass. 1501 (2001),

provides that "the defendant shall not be discharged from 

custody pending final decision on the appeal," although the 

defendant may be admitted to bail in the judge's discretion. 

See Commonwealth v. Watkins (No. 2), 486 Mass. 1021, 1022 n.2 

(2021). It is a closer question whether Mass. R. A. P. 6 (b)

authorizes a single justice of an appellate court to stay 

execution of a sentence pending a collateral appeal. We have 

indicated that "[t]hose who are pursuing appellate proceedings 

or a motion for a new trial may seek a stay of execution of 

sentence pursuant to Mass. R. A. P. 6." Committee for Pub.

Counsel Servs. v. Chief Justice of the Trial Court (No. 1), 484 

Mass. 431, 435-436 (2020), citing Commonwealth v. Charles, 466 

Mass. 63, 83 (2013). However, the language in rule 6 addressing 

stays presupposes that the defendant is taking a direct appeal 
4

from a criminal conviction, not an appeal from a ruling on a 

postconviction motion. See Mass. R. A. P. 6 (b) (5), (6) (stay 

automatically expires and trial court clerk to be notified upon 

release of decision "affirming the conviction"). Moreover, we 

have already recognized that the court rules themselves do not 

authorize a judge to grant a stay pending a ruling on a motion 

for a new trial; rather, a judge has inherent authority to grant 

such a stay only in exceptional circumstances. See Charles, 

supra at 74. Similarly, on appeal from a ruling on a motion for 

a new trial, we think it prudent to authorize a stay only where 

exceptional circumstances are present -- particularly where, as 

here, the defendant's trial, conviction, and direct appeal all 

took place many years ago -- regardless of whether the motion 

for a stay is presented to a trial court judge or a single 

justice of an appellate court.

There has been no finding of exceptional circumstances in 

this case. Harris suggests in his supplemental memorandum that 

the COVID-19 pandemic presents an exceptional circumstance. 

However, we do not agree that the COVID-19 pandemic itself 

presents an exceptional circumstance warranting exercise of a 

judge's inherent power to grant a stay where a defendant files a 

motion for a new trial and appeals from the denial thereof. A 

comparison with the Charles case is instructive. In Charles,

466 Mass. at 74, we ruled that exceptional circumstances were 

present due to "the allegations of serious and far-reaching 

misconduct by [Annie] Dookhan at the [William A. Hinton State 

Laboratory Institute]" that "may have compromised thousands of 

cases." Dookhan's misconduct "raise[d] significant questions 

regarding the veracity of the drug analysis, which purportedly 

served as the basis for [the defendant's] guilty pleas, and may 

be dispositive of his motion for a new trial." Id. We 

concluded that "the interest of justice [was] not served by the 

continued imprisonment of a defendant who may be entitled to a 

new trial," and so the judge had the inherent authority to allow 

a stay pending decision on the defendant's motion. Id. at 74-

75.

The COVID-19 pandemic is different in both kind and scope. 

As serious and extraordinary as it is, it is unimaginable that 

the pandemic itself casts any doubt on the justice of any 

conviction that predates it. Moreover, Dookhan's misconduct 

affected only a subset of criminal cases, namely, drug cases 

during her tenure at the Hinton drug laboratory -- a large 

subset, but a definable class nonetheless. A ruling that the 

pandemic alone presents an exceptional circumstance would invite 

every prisoner in the Commonwealth, regardless of the nature of 
5

his or her conviction or the amount of time that has passed 

since then, to file a motion for a new trial and, if it is 

denied, seek a stay of execution of sentence (that is, immediate 

release from confinement) pending appeal from that decision. 

Although the pandemic, when combined with other factors, might 

present an exceptional circumstance in a particular defendant's 

case, it is incumbent on the defendant to make that showing. We 

reiterate that the pandemic alone does not constitute an 

exceptional circumstance. Moreover, neither the Superior Court 

judge nor the single justice of the Appeals Court found that an 

exceptional circumstance existed in this case. For that reason 

alone, there was no error or abuse of discretion in the denial 

of a stay pending appeal from the denial of Harris's motion for 

a new trial.

The order of the single justice of the Appeals Court 

denying Harris's motion for a stay of execution of sentence is 

affirmed.

So ordered.

The case was submitted on briefs.

Inna Landsman for the defendant.

Benjamin Shorey, Assistant District Attorney, for the 

Commonwealth.

Anthony D. Mirenda, Christopher E. Hart, & Christopher 

Modlish for Committee for Public Counsel Services & others.