Boisvert v. Commonwealth

487 Mass. 1027

168 N.E.3d 1080

Sean BOISVERT

v.COMMONWEALTH.

SJC-13002

Supreme Judicial Court of Massachusetts.

May 26, 2021

The case was submitted on briefs.

Sean Boisvert, pro se.

Jane A. Sullivan, Assistant District Attorney, for the Commonwealth.

RESCRIPT

The petitioner, Sean Boisvert, appeals from a judgment of a single justice of this court denying his petition pursuant to G. L. c. 211, § 3, seeking bail review. Boisvert was indicted, in 2016, on numerous charges including assault with a dangerous weapon, in violation of G. L. c. 265, § 15B (b ) ; intimidation of a witness or juror, in violation of G. L. c. 268, § 13B ; rape of a child aggravated by a five-year age difference, in violation of G. L. c. 265, § 23A ; indecent assault and battery on a child under the age of fourteen, in violation of G. L. c. 265, § 13B ; and possession of child pornography, in violation of G. L. c. 272, § 29C. A judge in the Superior Court initially set cash bail at $100,000 (initial bail decision).

Approximately two years later, Boisvert, who has been unable to pay the cash bail and remains in pretrial detention, sought review of the bail determination. At a hearing in May 2018, his counsel noted that the request for bail review was being made on the basis of this court's decision in Brangan v. Commonwealth, 477 Mass. 691, 80 N.E.3d 949 (2017). Specifically, counsel asked the court to consider Boisvert's financial circumstances and to make written findings in light of Brangan. At the conclusion of the hearing, the judge (a different judge from the one who had set the initial cash bail of $100,000) reduced the cash bail to $30,000; the judge did so from the bench and without any findings or explanation, oral or written (bail reduction decision).

Boisvert thereafter sought to have his bail reviewed again, in the trial court, on at least three different occasions, including in November 2019, to no avail. Then, in March 2020, and in light of the COVID-19 pandemic, he filed a "Motion for Bail Hearing and Personal Recognizance Based on Health Concerns of Emergency Nature and Recent Change in Laws." After a video hearing, the motion was denied, in April 2020. The judge (yet again a different judge from the two judges who had made the initial bail decision and the bail reduction decision) completed a preprinted form entitled "Findings and Order on Request for Release on COVID-19 Grounds," finding that Boisvert was not entitled to a rebuttable presumption of release, checking off the boxes indicating that he had considered the risk of Boisvert's exposure to COVID-19 if he remained in custody; whether Boisvert would pose a safety risk if released; and Boisvert's release plan. The judge maintained the $30,000 cash bail and explained that Boisvert had acknowledged that he was homeless and would be unemployed if released; that he would face significant mandatory time if convicted; and that he had, during the course of the trial court proceedings, discharged a number of appointed attorneys. As to the latter point, Boisvert has appeared mostly pro se (as he does in this court), but he has had court-appointed standby counsel throughout. It appears from the trial court docket that he has had at least five different attorneys.

Then, in July 2020, Boisvert filed his G. L. c. 211, § 3, petition, seeking bail review. In the petition he argued, among other things, that the cash bail amount of $30,000 was excessive; that the judge who reduced his bail to that amount failed to make specific written findings, or even oral findings, as Brangan requires, setting forth the reasons for setting bail in that amount; that denying without a hearing his subsequent bail requests (until his most recent COVID-19-based request) was a violation of his constitutional rights; and that his ongoing pretrial detention, which has now extended into its fifth year, was punitive and amounted to detention on the basis of dangerousness. The single justice denied the petition without a hearing, and Boisvert appeals.

"When a party appeals from an adverse judgment by the single justice under G. L. c. 211, § 3, we review the single justice's order for clear error of law or abuse of discretion." Brangan, supra at 697, 80 N.E.3d 949, and cases cited. Additionally, where the petition concerns a request for bail relief, we also consider the propriety of the underlying bail order. See id. "In reviewing both the single justice's judgment and the bail judge's order, we must consider the legal rights at issue and independently determine and apply the law, without deference to their respective legal rulings." Id., citing The Boston Herald, Inc. v. Sharpe, 432 Mass. 593, 603, 737 N.E.2d 859 (2000).

As the single justice noted, Boisvert was seeking to challenge, in his petition, both the initial and reduced cash bail amounts; the November 2019 decision denying a request for a bail review hearing (one of the several bail review requests that, as noted above, Boisvert filed and that was denied); and the over-all length of his pretrial detention. The single justice rightly concluded that Boisvert did not articulate any changed circumstances that would warrant relief from the $30,000 cash bail. See G. L. c. 276, § 58, tenth par. ("if any court, in its discretion, finds that changed circumstances or other factors not previously known or considered, make the order of bail or recognizance ineffective to reasonably assure the appearance of said defendant before the court, the court may make a further order of bail"); see also Commesso v. Commonwealth, 369 Mass. 368, 374-375, 339...