Heard: January 8, 2016.
action commenced in the Superior Court Department on January
18, 2012. The case was heard by Richard E. Welch, III, J., on
motions for summary judgment. William S. Smith (Jennifer H.
O'Brien with him) for the plaintiff. Jennifer H. Flynn,
Assistant Attorney General, for the Commonwealth.
Present: Trainor, Agnes, & Massing, JJ.
question before us is whether the plaintiff, Temistocles Omar
Santana, is eligible to bring a claim for relief under the
erroneous conviction statute, G. L. c. 258D, because his
conviction was reversed due to the effect of an improper jury
instruction. The plaintiff contends that he is eligible
to bring such a claim because he was granted judicial relief
"on grounds which tend to establish the
[plaintiff's] innocence." G. L. c. 258D, §
1(B)(ii). We disagree, and affirm the judgment that entered
on the parties' on cross motions for summary judgment.
2009, the plaintiff and another (the codefendant) were each
indicted as youthful offenders on three indictments charging
aggravated rape by joint venture and one indictment of
assault with intent to commit rape. The cases were tried
together. The trial judge instructed the jury on the lesser
included offenses of rape on each of the three charges of
aggravated rape. The jury returned a single verdict of guilty
of rape against the plaintiff on the count charging him as a
joint venturer in which it was alleged that the crime was
committed by means of the codefendant's
penis. The plaintiff was acquitted on all other
charges. The plaintiff was sentenced to a term of four to six
years in State prison. The plaintiff was released from prison
in April, 2011, as the result of a decision by a panel of
this court which determined that the judge should not have
instructed the jury on the lesser included offense of rape,
and that "no rational view of the evidence"
supported the jury's verdict that the plaintiff was
guilty of rape, but not aggravated rape.
erroneous conviction statute, G. L. c. 258D, §§
1-9, represents a limited waiver of the Commonwealth's
sovereign immunity so as to permit eligible persons who were
wrongfully convicted and imprisoned to file a civil action in
the Superior Court and to pursue remedies including recovery
of up to $500, 000 in damages. See Guzman v.
Commonwealth, 458 Mass. 354, 355-356 (2010) (Guzman II).
In the present case, the parties agree that whether the
plaintiff is eligible for relief under § 1(B) of the
statute depends on whether his conviction was reversed
"on grounds which tend to establish [his]
innocence." G. L. c. 258D, § 1(B)(ii). "[T]he
eligibility requirement is 'separate and distinct from
the merits of the claim of relief that a claimant must
establish at trial, ' namely that he or she did not
commit the charged offense." Renaud v.
Commonwealth, 471 Mass. 315, 319 (2015), quoting from
Irwin v. Commonwealth, 465 Mass. 834, 839, 842
(2013). See also Guzman II, supra at 360-361 ("we do not
discern a legislative intent that the determination of
eligibility be tantamount to a testing of the merits of a
eligibility requirement does not mean that the person seeking
relief must establish that his conviction was reversed
"on the basis 'of compelling or overwhelming
exculpatory evidence, ' that is, on the grounds that they
were actually innocent." Guzman II, supra at 359,
quoting from Guzman v. Commonwealth, 74 Mass.App.Ct.
466, 477 (2009) (Guzman I). However, the eligibility
requirement does mean that the conviction was reversed
"upon facts and circumstances probative of the
proposition that the claimant did not commit the crime."
Guzman I, supra.
judgment is appropriate only where no material facts are in
dispute. Massachusetts Hosp. Assn., Inc. v. Department of
Pub. Welfare, 419 Mass. 644, 649 (1995). "On
appellate review of a judge's decision on cross motions
for summary judgment, we view the record in the light most
favorable to the party against whom the judge allowed summary
judgment, here the plaintiff." Marhefka v. Zoning
Bd. of Appeals of Salem, 79 Mass.App.Ct. 515, 516
(2011), citing Albahari v. Zoning Bd. of Appeals of
Brewster, 76 Mass.App.Ct. 245, 248 & n.4 (2010). We
review de novo the Superior Court judge's rulings on the
parties' cross motions for summary judgment. Miller
v. Cotter, 448 Mass. 671, 676 (2007).
Guzman II, supra, the Supreme Judicial Court
supplied an illustrative list of cases in which reversals or
orders granting a motion for a new trial would not satisfy
the eligibility threshold established by G. L. c. 258D.
Id. at 358 n.6. While we have "rejected a
categorical approach, " Santana v.
Commonwealth, 88 Mass.App.Ct. 553, 554 (2015), in
determining whether the grounds for judicial relief
"tend to establish innocence, " a person seeking
relief under G. L. c. 258D does not satisfy the eligibility
threshold established by G. L. c. 258D, § 1(B)(ii),
merely by establishing that the basis upon which his
conviction was reversed was "'consistent' with
innocence without any tendency to establish it." Guzman
II, supra at 358 (emphasis in original).
plaintiff's direct appeal from his conviction, the panel
explained that on the indictment charging the codefendant
with aggravated rape by joint venture in which the
Commonwealth's theory was that there was penile
penetration of the victim by the codefendant while the
plaintiff sat on her chest, the evidence against the
codefendant warranted a lesser included offense instruction
and supported the codefendant's conviction of rape. This
is because the jury could have concluded that the codefendant
engaged in sexual intercourse with the victim by force and
without her consent, but rejected the evidence that the
plaintiff participated in the act as a joint venturer. There
was, therefore, nothing inconsistent about a verdict of not
guilty of the greater offense, but guilty of the lesser
offense with regard to the codefendant. However, the same
could not be said of the plaintiff; that is, on the
corresponding indictment charging the plaintiff with
aggravated rape by joint venture, a verdict of not guilty on
the greater offense of aggravated rape would not permit a
jury to find the plaintiff guilty of the lesser included
offense of rape based on the evidence offered in support of
that indictment. Commonwealth v. Phineas P., supra.
not resolved by our earlier panel decision reversing the
plaintiff's conviction, however, is whether the jury
found the plaintiff not guilty of the greater offense based
on a compromise verdict or whether the jury reached that result
because it concluded that the Commonwealth had not proved its
case. In short, in reversing the plaintiff's conviction
of rape, this court concluded that the trial judge had
improperly instructed the jury on a lesser included offense
option with the result that the jury's verdict of guilty
of the lesser included offense was not only unsupported by
the evidence, but it rendered ambiguous the jury's
decision to find the defendant not guilty of the greater
offense. Thus, while it is true that principles of
double jeopardy preclude any further prosecution of the
plaintiff on the earlier indictment, see Adams v.
Commonwealth,415 Mass. 360, 362 (1993), his conviction
was not reversed for reasons that tend to establish his
innocence. See Commonwealth v. Roth,437 Mass. 777,
777 (2002) (although judge erred in taking partial verdict on