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04/05/78 COMMONWEALTH v. DAVID A. O'CLAIR

April 5, 1978

COMMONWEALTH
v.
DAVID A. O'CLAIR



Worcester. Complaints received and sworn to in the Central District Court of Worcester on June 7, 1976, July 26, 1976, and July 28, 1976. On appeal to the Superior Court, sentences were imposed by Meagher, J., following default by the defendant. The Supreme Judicial Court granted a request for direct appellate review.

Hennessey, C.j., Quirico, Braucher, Kaplan, & Abrams, JJ.

SYLLABUS BY THE COURT

Practice, Criminal, Appeal to Superior Court, Default.

The opinion of the court was delivered by: Quirico

For the reasons stated in Commonwealth v. Francis, ante 750 (1978), there was no error in imposing sentences under G. L. c. 278, § 24, on a defendant who failed to appear for his Superior Court trial where the defendant moved several times in the interval between his District Court trial and the date set in the Superior Court and the clerk's office had mailed notices to appear and summonses to at least three different addresses at various times. [763-764]

For the reasons stated in Commonwealth v. Francis, ante 750 (1978), the imposition of sentences pursuant to G. L. c. 278, § 24, on a defendant who failed to appear for his Superior Court trial did not deprive him of his constitutional right to trial by jury. [764]

This is the last of three cases decided today involving G. L. c. 278, § 24, which authorizes the entry of default and imposition of sentence on a defendant who, having entered an appeal from a conviction in a District Court, fails to appear for trial in the Superior Court. The factual background of this case, however, is substantially more complex than that of the other two cases, viz., Commonwealth v. Bartlett, ante 744 (1978), and Commonwealth v. Francis, ante 750 (1978). This case is before us on the defendant's appeal, under G. L. c. 278, §§ 33A-33G, from the imposition of sentences on the defendant in his absence and the denial of a motion to vacate the sentences. We hold there was no error.

On June 22, 1976, the defendant was found guilty in the Central District Court of Worcester on two complaints charging larceny and use of a motor vehicle without authority. He was sentenced to a term of six months in a house of correction on the larceny charge and a concurrent term of six months on the use without authority charge. He claimed appeals to the Superior Court in Worcester County for trial de novo on both complaints.

On August 9, 1976, the defendant was convicted in the Central District Court of Worcester on five additional complaints charging unlawful possession of a firearm, possession of burglarous instruments, failure to keep his vehicle to the right, operation of a motor vehicle with defective equipment, and receiving stolen goods. He was sentenced to a term of one year in a house of correction on the firearms violations, placed on probation for the possession of burglarous instruments, given fines on the motor vehicle violations, and a suspended sentence on the receipt of stolen goods charge. He also claimed appeals to the Superior Court for trial de novo on these convictions.

The first two complaints were on the Superior Court trial list for September 14, 1976, and the five remaining complaints were on the list for September 27, 1976. Although the defendant appeared for a pre-trial conference on July 7, on the first two complaints, he failed to appear for trial on September 14 and September 27. As a result, default was entered and capias issued against him on each complaint. The Judge invoked G. L. c. 278, § 24, and imposed the same sentences on the defendant as were imposed in the District Court.

On October 25, the defendant was arrested and brought into court, where counsel was appointed for him. At that time, the defendant filed a motion to revoke the sentences imposed under G. L. c. 278, § 24, and an affidavit in support thereof, alleging, in part, that he had never received the notice to appear in the Superior Court. An evidentiary hearing was held on the motion to revoke.

At the hearing there was evidence that the defendant had had four different addresses from the time of his arrests on the District Court complaints until he was defaulted in the Superior Court. At the time of his initial arrest, the defendant gave his address as 33 Cambridge Street, Worcester, which was also the address of his mother. It was to that address that a notice to appear for a pre-trial conference on July 7 was sent to the defendant, and to which notice he responded. However, during the processing of his cases through the District Court to the Superior Court, the defendant claimed three other addresses: 7 Goulding Street, Worcester; 2505 Haven Road, Virginia Beach, Virginia; and 586 Main Street, Worcester. The first two of these addresses appeared in the clerk's office, the last one did not. *fn1 The pre-trial notice to appear in court on September 14 for the first two offenses was mailed to the defendant on August 31, addressed to 33 Cambridge Street, Worcester. The notice to appear on September 27 for the other five offenses was mailed to him on September 13, addressed to 2505 Haven Road, Virginia Beach, Virginia. *fn2

There was evidence that after the defendant's first two cases were called on September 14, and he did not appear, the Judge asked the clerk to issue a summons to the defendant at 7 Goulding Street, Worcester, which the clerk did. The summons was not served because the defendant could not be found at that address. However, service of the summons was subsequently made by leaving a copy thereof at 33 Cambridge Street, Worcester. The clerk also mailed a copy of the summons to the defendant at 2505 Haven Road, Virginia Beach, Virginia. When the defendant did not appear on September 21, he was defaulted on the first two offenses, and when he failed to appear on September 27, he was similarly defaulted on the other five offenses.

After the hearing on October 25, the Judge denied the defendant's motion to revoke the sentences. On October 27, he filed a memorandum in which he stated, in part, that G. L. c. 278, ยง 24, "has proved essential in the administration of Justice in order that there be some sanction that the defendant appear or at least notify the Court of any change of address after he appeals from the District Court conviction." In reiterating his denial of the defendant's motion to revoke, the Judge found that the ...


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