Petition for Writ of Certiorari — Pedro Vasquez, Petitioner v. Massachusetts

Supreme Court briefMar 1, 2021

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No. 21IN THE

Supreme Court of the United States

___________

PEDRO VASQUEZ,

Petitioner,

MASSACHUSETTS,

Respondent.

___________

On Petition for Writ of Certiorari

to the Massachusetts Supreme Judicial Court

___________

APPENDIX A:

Opinion, Commonwealth v. Vasquez, 486

Mass. 405, 150 N.E.3d. 723 (2020)

___________

JUAN M. RIVERA

JUAN M. RIVERA, ESQ.

1380 Main Street, Suite 420

Springfield, MA 01103

(413) 827-9600

donclave@gmail.com

Counsel for Petitioner

March 1, 2021

Counsel of Record

Lexis®

Document: Commonwealth v. Vasquez, 485 Mass. 405

Commonwealth v. Vasquez, 485 Mass. 405

Copy Citation

Supreme Judicial Court of Massachusetts

December 6, 2018, Argued; August 13, 2020, Decided

SJC-12562.

Reporter

485 Mass. 405 * | 150 N.E.3d 723 ** | 2020 Mass. LEXIS 475 ***

COMMONWEALTH vs. PEDRO VASQUEZ.

Prior History: Hampden. INDICTMENTS found and returned in the Superior Court Department on April

30, 2015.

Following review reported in 482 Mass. 850 (2019) [***1] , an application for appellate attorney's

fees and costs was filed in this court on September 23, 2019.

Commonwealth v. Vasquez, 482 Mass. 850, 2019 Mass. LEXIS 505, 130 N.E.3d 174 (Aug. 28, 2019)

Core Terms

private counsel, assigned, single justice, appointed, reimburse, indigent, interlocutory appeal, full

court, circumstances, costs, application for leave, attorney's fees, indigent defendant, trial court,

entitlement, suppress, cases, funds

Headnotes/Summary

Headnotes

MASSACHUSETTS OFFICIAL REPORTS HEADNOTES

Homicide > Indigent > Practice, Criminal > Request for fees and costs > Attorney's

fees > Motion to suppress > Interlocutory appeal

This court concluded that an attorney who entered into a private fee agreement with an indigent

criminal defendant, for the purpose of opposing the Commonwealth's application for leave to

prosecute an interlocutory appeal from a decision on a pretrial motion to suppress evidence, was

not entitled to attorney's fees under Mass. R. Crim. P. 15 (d), where, although the defendant,

who already had representation assigned by the Committee for Public Counsel Services, entered

into a written fee agreement with the attorney, there was no indication in the record of a

genuine intent for the defendant ever actually to pay for private representation. [410-415]

, pro se.

Counsel: Calvin C. Carr

Juan M. Rivera

, pro se.

Katherine E. McMahon

, Assistant District Attorney (Maximilian J. Bennett, Assistant District

Attorney, also present) for the Commonwealth.

Daniel P. Sullivan for Executive Office of the Trial Court.

Judges: Present: GANTS

, C.J., LENK

, GAZIANO

, LOWY

, BUDD

, CYPHER

, & KAFKER

, JJ.

Opinion by: LENK

Opinion

[**724] LENK , J. The defendant, who at all relevant times was and continues to be indigent, was

charged with murder in the first degree and two firearm-related offenses in April, 2015. He was

convicted in February, 2020, of murder in the second degree and the two firearm offenses. He has

appealed, but his appeal has not yet been entered in the Appeals Court.

Before trial, the defendant filed several motions to suppress a variety of evidence, including witness

identifications, evidence obtained from a search of his cell phone, cell site location information, and

statements he had made to police in a custodial [*406] interrogation. A judge [***2] in the

Superior Court denied most of the motions but allowed the motion to suppress the custodial

statements. Both sides sought leave to appeal from the rulings that were adverse to them, pursuant

to Mass. R. Crim. P. 15 (a) (2), as amended, 476 Mass. 1501 (2017), and a single justice of this court

granted both sides' applications. On appeal, we affirmed in part and reversed in part the Superior

Court judge's rulings. Commonwealth v. Vasquez, 482 Mass. 850, 852, 130 N.E.3d 174 (2019)

(Vasquez I).

The matter now before us concerns a request for attorney's fees made by an attorney who claims to

have been privately retained by the defendant for the sole purpose of opposing the Commonwealth's

application for leave to appeal. See Mass. R. Crim. P. 15 (d), as amended, 476 Mass. 1501 (2017).

The attorney asks to be paid slightly more than $40,000 for that purpose. [**725] For the reasons

that follow, we hold that no attorney's fees are required under rule 15 (d) in this situation. Rule 15

(d) is meant to reimburse defendants who pay for their own counsel with their own funds; it is not

meant for attorneys who represent defendants whom they know to be indigent, and from whom they

never expect to receive payment, even if, as here, the attorney claims to have been privately

retained.

Facts. At his arraignment, the defendant was determined to be indigent, see S.J.C. Rule 3:10, as

appearing in 475 Mass. 1301 (2016); Rule 53 of the Rules of the Superior Court [***3] (2020), and

attorney Calvin C. Carr was appointed to represent him. Mr. Carr represented the defendant in all

of the proceedings in the Superior Court, including on the motions to suppress and at trial. As courtappointed counsel, he was to be compensated for his services by the Committee for Public Counsel

Services (CPCS). Mr. Carr was assisted, behind the scenes, by attorney Juan M. Rivera , who also

represented the defendant as a court-appointed counsel in a different criminal case in the District

Court. Mr. Rivera did not enter an appearance in the murder case, was not assigned to the matter

in any capacity by CPCS, and apparently was not being paid by Mr. Carr , CPCS, or the defendant for

any assistance he was providing. 1

After the defendant's motions to suppress were decided, both sides indicated that they intended to

appeal, and toward that end both sides filed applications in the county court requesting leave

[*407] to appeal. See Mass. R. Crim. P. 15 (a) (2). 2

The Commonwealth filed its application

first, on November 2, 2017, and the defendant filed his application on November 6, 2017. The

defendant's application was signed and filed by Mr. Carr , although we now know that Mr. Rivera

actually [***4] wrote the application. Mr. Carr acknowledges that he only signed and filed it. A

question also arose along the way as to who would write the defendant's opposition to the

Commonwealth's application. Because of the press of other important work, Mr. Carr asked Mr.

Rivera to take on that task as well. 3

Mr. Rivera , feeling exhausted from having written the

defendant's application, and having already contributed a significant amount of assistance without

being paid, said that he could not take on that additional task without being paid. Mr. Carr

represents that he then advised Mr. Rivera that, in order to be paid, he would have to get assigned

to the case by CPCS.

[**726] The plot thickens. Neither Mr. Carr nor Mr. Rivera contacted CPCS about getting Mr.

Rivera assigned to the case. Instead, Mr. Rivera entered into a written “fee agreement” with the

defendant, whereby the defendant purported to promise to pay Mr. Rivera $250 an hour to

represent him in opposition to the Commonwealth's application. Mr. Rivera candidly acknowledges

that, at the time he entered into this agreement with the defendant, he knew that the defendant was

indigent and had no means to pay him, and indeed he acknowledges that [***5] he never expected

to be paid anything by the defendant, at any time. With respect to actual payment, the agreement

provided in relevant part:

[*408] “It is understood that the Attorney shall make an application to the

appropriate appellate court for costs pursuant to Mass. R. Crim. P. 15 (d) and the Client

hereby assents to the Attorney's recovery of said fee and relinquishes any claim to any

award of costs or fees by the appropriate appellate court.

“…

“It is understood by the parties that the Attorney shall recover his fees and costs upon

application to the appropriate appellate court pursuant to Massachusetts Rules of

Criminal Procedure 15 (d). The Client shall take all steps necessary, as requested by the

Attorney, to submit any affidavits and/or other documentation or evidence necessary for

the Attorney to present said application to the court.”

In short, the defendant and Mr. Rivera had entered into an agreement that nominally obligated the

defendant to pay Mr. Rivera $250 an hour for his services — but which they both knew full well the

defendant could not and would not ever pay — with the expectation that the payment would be

sought from, and made by, the district attorney and the Trial Court via a court order under rule 15

(d). 4

Mr. Rivera

then wrote, signed, [***6] and filed the defendant's opposition to the

Commonwealth's application. 6

It was only after Mr. Rivera completed and filed his work that CPCS learned of Mr. Rivera 's

involvement. That fact came to light when Mr. Carr sent an e-mail message to CPCS's director of

criminal appeals for its private counsel division, which stated in [*409] its entirety: “Need appellate

counsel — Juan Rivera is responding to [Commonwealth's] petition — may make sense to have him

assist here[.] Let me know your thoughts[.] Thanks.” This appears to have been written in

anticipation [**727] of one or both of the applications being allowed and the defendant needing

counsel assigned by CPCS for an appeal to the full court. There followed a series of e-mail messages

between CPCS, Mr. Carr , and Mr. Rivera . In a nutshell, CPCS seemed to be surprised to learn of

Mr. Rivera 's involvement in the case and questioned how he expected to be paid for the work he

had done, to which Mr. Rivera replied that he was “privately retained solely for the Commonwealth's

[r]ule 15 (a) (2) appeal response by the defendant.” CPCS expressed skepticism about his being paid

in these circumstances under rule 15 (d), citing Commonwealth v. Sparks, 431 Mass. 299, 727 N.E.2d

78 (2000). Mr. Rivera responded that the situation in [***7] the Sparks case was different because

in that case there was no contract between the client and the appellate attorneys, whereas in this

case “there is a contract retaining me directly as appellate counsel by [the defendant], with a

reference to [rule] 15 (d) for payment.” When asked by CPCS how he would be paid if the motion for

fees were denied, Mr. Rivera responded: “A motion to reconsider. Failing that, what is your opinion?

Associate counsel voucher? 7

I don't see the legal basis for the judge to do that under these

circumstances. The facts are distinguishable from Sparks in many ways.”

As stated, a single justice of this court granted both the defendant's application and the

Commonwealth's application (over Mr. Rivera 's opposition), and the cases then proceeded to the full

court. 8

CPCS assigned another attorney (one certified by CPCS to handle such appeals) to handle

the two appeals. 9

There is no indication in the record before us, one way or the other, whether Mr.

Rivera assisted with the appeals. We note only that he did not file an appearance in the case when

it was before the full court, until after we decided it.

[*410] After we issued our opinion, see Vasquez I, supra, Mr. Rivera [***8] filed a request for

attorney's fees and costs in the full court, pursuant to rule 15 (d), which the Commonwealth opposed.

He seeks to be compensated, as a privately retained attorney, for writing and filing in the county

court the defendant's opposition to the Commonwealth's application for leave to appeal. Specifically,

He does not seek

he seeks fees in the amount of $40,125 and costs in the amount of $302.40. 10

any compensation for the work he did behind the scenes on the defendant's application for leave to

appeal, or for any work he may have done behind the scenes in the full court. The Commonwealth

opposes both the entitlement to a fee in these circumstances and the amount of the fees

sought. 11

[**728] We referred Mr. Rivera 's fees motion to a single justice for a recommendation. The single

justice held a hearing by telephone in which Mr. Carr , Mr. Rivera , prosecutors from the Hampden

district attorney's office, and the general counsel for the Trial Court were present. Having considered

Mr. Rivera 's motion and supporting documentation, the Commonwealth's opposition, Mr. Rivera 's

reply, the audio recording of the hearing, copies of e-mail messages supplied by Mr. Rivera at the

single justice's request, [***9] and the single justice's recommendation, we are now in a position to

rule on the motion.

Discussion. a. Entitlement to a fee. The facts of this case are somewhat messy, but the legal

analysis is really quite simple.

“Although rule 15 (d) does not so state explicitly, our decisions have made clear since

the rule was first adopted that it is not applicable to indigent defendants who are

represented by counsel appointed or assigned by CPCS. Rather, the rule is intended for

the benefit and protection of defendants who do not have appointed or assigned counsel

and must incur fees for private representation to defend against a Commonwealth

appeal. … Defendants with appointed or assigned [*411] attorneys are not required to

expend their own funds for their representation. Their defense, including a zealous

defense against any Commonwealth appeal, is paid for by CPCS from its budget

appropriation. See G. L. c. 211D” (footnote omitted).

Commonwealth v. Augustine, 470 Mass. 837, 841, 26 N.E.3d 709 (2015), and cases cited. Thus:

“Rule 15 (d) provides a needed measure of protection to the rights of defendants by

seeking to equalize the resources of the defendant with those of the Commonwealth. A

defendant who is able to retain private counsel may not have the funds for an

interlocutory appeal from a [***10] suppression motion on which he has prevailed. The

lawyer should not be placed in the untenable position of either volunteering his services

on the appeal or abandoning the defendant. These considerations are present in every

case and especially operative when the case involves a significant constitutional issue on

which the defense bar has an equal interest with the prosecution in establishing the law.”

Commonwealth v. Gonsalves, 432 Mass. 613, 617, 739 N.E.2d 1100 (2000). In other words, the rule

is for clients who are paying for their own representation. If, in the course of the proceeding in the

trial court, the Commonwealth takes a detour for an interlocutory appeal, the fee-paying client may

not have the funds to pay his or her attorney to follow. The rule fixes this by requiring the

Commonwealth to pay in that situation.

If that is not clear enough, we also have said that the rule is “a rule of ‘reimbursement,” and nothing

more. Augustine, 470 Mass. at 842 n.10, quoting Reporters' Notes to Rule 15 (d), Mass. Ann. Laws

Court Rules, Rules of Criminal Procedure, at 1595 (LexisNexis 2014) (“This subdivision was drafted to

dispel any uncertainty concerning the defendant's right to reimbursement of his or her costs of appeal

and attorney's fees” [emphasis added]). If a defendant pays no [***11] fees for private

representation — and is never expected to pay anything — there is nothing to reimburse. Augustine,

supra at 841-842. 12

[*412] [**729] In the Augustine case, we dealt with the situation where a private (non-CPCS)

attorney agreed to represent an indigent defendant on a Commonwealth interlocutory appeal at no

charge to the defendant. Augustine, 470 Mass. at 841. The defendant was entitled to (and initially

had) an attorney assigned by CPCS to represent him, but he opted for the private counsel instead. Id.

at 839. We held that the private attorney was not entitled to be compensated by the Commonwealth

pursuant to rule 15 (d) for his services. Id. at 841-843. The defendant paid the attorney nothing, so

there was nothing to reimburse. Id. at 841-842. We explained that the rule is for the defendant's

benefit, i.e., to reimburse him or her for what he or she owes, and in that sense is quite different

from other fee-shifting rules that permit counsel to be compensated even when the client owes

nothing. Id. at 842-843.

To be sure, the defendant in this case signed a piece of paper saying that he agreed to pay Mr.

Rivera at a rate of $250 per hour for his services. It was perfectly clear at the time, however, to

both the defendant and Mr. Rivera , that the defendant could not afford [***12] to pay anything.

Mr. Rivera knew the defendant was indigent and was represented by counsel assigned by CPCS, and

Mr. Rivera has acknowledged that he never expected to be paid anything by the defendant. The

plan, all along, was for the Commonwealth — the district attorney and the Trial Court — and not the

defendant, to pay his fee. The fee agreement was, in a word, illusory.

There is no indication in the record before us of a genuine intent for the defendant ever actually to

pay for private representation. There is no evidence that the defendant paid a retainer or otherwise

provided any collateral or security for what he purported to promise to pay; no evidence that the

defendant in fact paid anything during the course of the representation; and no evidence that Mr.

Rivera ever sent the defendant a bill or communicated with him in any way whatsoever about

private payment between the time they signed the agreement and when Mr. Rivera applied to the

court, one and one-half years later, for payment under rule 15 (d). Indeed, all the indications are that

the defendant would never pay anything out of pocket. 13

Mr. Rivera argues that his situation [***13] is like that of the attorney [*413] in Commonwealth

v. Murphy, 423 Mass. 1010, 668 N.E.2d 349 (1996). It is not. In that case, as here, the defendant

was represented in the trial court by an attorney who had been appointed by CPCS, and on the

Commonwealth's (in that case unsuccessful) application for leave to take an interlocutory appeal he

was represented by private counsel. Id. at 1010 & n.1. Though it does not appear in the opinion in

that case, the record of the case indicates that the attorney appointed by CPCS and the attorney

privately retained by the defendant were professionally affiliated at [**730] the same firm.

Significantly, however, the record of the case also indicates that, when the motion for fees was

litigated before the single justice, the Commonwealth conceded that the defendant was entitled to a

fee award. The Commonwealth only contested who should have to pay the fees; it argued that the

award should be paid by CPCS. The single justice rejected the Commonwealth's contention and

ordered that the fees be paid by the district attorney's office.

The Commonwealth then moved for reconsideration, claiming that the single justice had “overlooked

a fact, namely that the defendant was entitled to public counsel.” The Commonwealth also contended

that the [***14] single justice had “misapprehended the law, namely, in ruling that the [d]istrict

[a]ttorney should pay the attorney[']s fees and costs.” The single justice expressly denied

reconsideration on the first point, noting that the Commonwealth had conceded the entitlement to a

fee. He allowed reconsideration as to the second point only and, after further analysis, allowed his

earlier ruling (i.e., that the district attorney was required to pay the fees) to stand. That was the

posture of the case when the Commonwealth appealed to the full court.

On appeal, although the Commonwealth sought again to challenge the defendant's entitlement to a

fee award, the court did not address that issue, which was entirely understandable given the

Commonwealth's initial concession that a fee award was in order and the single justice's express

refusal to revive the question on reconsideration. The only issue addressed by the court in that case,

therefore, was who should pay the fee. Murphy, 423 Mass. at 1010 (“At issue is who should pay the

attorney's fees deter- [*414] mined and approved pursuant to Mass. R. Crim. P. 15 [d]”). The

court's opinion in that case did not, as Mr. Rivera would have it, pass on the legitimacy of the private

counsel agreement in those circumstances, [***15] nor has any subsequent decision of the full court

held that such an agreement in those circumstances — or these — was valid for purposes of rule 15

(d).

In both Augustine, 470 Mass. at 840, and Commonwealth v. Sparks, 431 Mass. 299, 304 n.8, 727

N.E.2d 78 (2000), we acknowledged that there might be circumstances where an indigent defendant,

faced with an interlocutory appeal by the Commonwealth, might legitimately retain private counsel to

defend him or her in that proceeding. Conceivably, for example, a defendant might have enough

money or other assets to pay for private counsel for that limited task, yet not enough that would

render him or her not indigent for purposes of having counsel assigned by CPCS; or a family member

or friend might provide him or her with funds to pay for private counsel for the interlocutory appeal;

or the private counsel might agree to represent the defendant for no fee or a significantly reduced

fee. But when we spoke in those cases about “an indigent defendant's right to dismiss appointed

counsel and retain his [or her] own private counsel under a private payment arrangement,” Sparks,

supra at 304 n.7, or an indigent defendant's entitlement “to discharge his [or her] appointed counsel

and retain private counsel on such terms as he [or she] was able,” Augustine, supra at 843,

we [***16] were speaking about bona fide private representation agreements by which a defendant

had paid or would pay for his or her own counsel. We did not say or mean to suggest in those cases

that an award of fees pursuant to rule 15 (d) is proper simply because a defendant has signed a

paper promising to pay fees to a private counsel that he or she, and the attorney, know full well will

never be paid. As we [**731] said in Augustine, supra, “[i]f that were the case, indigent defendants

always would be able to engage private counsel of their choice, in lieu of their court-appointed

counsel, at the Commonwealth's expense. There is no such right.”

In this case, the indigent defendant had counsel assigned to him by CPCS, Mr. Carr. If Mr. Carr was

unable to represent him in defense of the Commonwealth's application for leave to appeal, he was

entitled to have another qualified lawyer appointed by CPCS. He did not have privately-retained

counsel up to that point, and so he was at no risk of having to pay more money to a privatelyretained attorney when the Commonwealth sought to [*415] take its interlocutory appeal. Nor was

a previously-retained private attorney placed in the untenable position of having to either abandon

the [***17] defendant or represent him without getting paid. As the Gonsalves and Augustine cases

make plain, therefore, this case is simply not one that rule 15 (d) was designed to cover. See

Augustine, 470 Mass. at 841; Gonsalves, 432 Mass. at 617. 14

b. Amount of fees sought. Although we conclude that the defendant is not entitled to be reimbursed,

and therefore Mr. Rivera is not entitled to be paid, for anything pursuant to rule 15 (d), we are

compelled to comment briefly on the amount of the fees sought. We are not aware of any case, and

none has been brought to our attention, where a fee award under rule 15 (d) in the neighborhood of

$40,000 solely for an opposition to the Commonwealth's application for leave to appeal has been

granted. The hourly rate, as the Commonwealth concedes, may have been reasonable, but the time

spent for the discrete task of preparing a twenty-six page opposition and for preparing a motion for

fees — a total of 160.5 hours — was excessive. Had the defendant been entitled to reimbursement of

fees, we would have reduced the amount substantially. While we cannot rule out the possibility

entirely, it is difficult to imagine a situation — it would likely require extraordinary circumstances —

where an expenditure of 160.5 hours would [***18] be appropriate for the limited task of writing an

opposition to a request for leave to appeal (and preparing a motion for fees), especially for an

attorney who was already well-versed in the specifics of the case and the task at hand.

Conclusion. The motion for attorney's fees and costs is hereby denied.

So ordered.

Footnotes

Mr. Rivera

indicates that he provided all of his behind-the-scenes assistance “pro bono.”

The rule provides: “A defendant or the Commonwealth shall have the right and

opportunity to apply to a single justice of the Supreme Judicial Court, in the form and manner

prescribed by a standing order of that court, for leave to appeal an order determining a

motion to suppress evidence prior to trial. If the single justice determines that the

administration of justice would be facilitated, the justice may grant that leave and may hear

the appeal or may order it to the full Supreme Judicial Court or to the Appeals Court for

determination.” Mass. R. Crim. P. 15 (a) (2), as amended, 476 Mass. 1501 (2017).

It appears that the responsibility for opposing a Commonwealth application for leave to

appeal falls to the court-appointed trial counsel in the first instance. See Committee for Public

Counsel Services (CPCS), Assigned Counsel Manual, Policies & Procedures, § 4.B.4.k (Jan. 1,

2019) (Assigned Counsel Manual) (“The conduct of interlocutory hearings, including the

submission of briefs and oral argument, are ordinarily the responsibility of trial counsel,

whether the hearing was initiated by counsel or by the prosecution. Private court-appointed

trial counsel handling an interlocutory appeal should contact the CPCS Director of Criminal

Appeals — Private Counsel Division to determine whether assistance by appellate counsel is

warranted”).

The rule provides: “If an appeal or application therefor is taken by the Commonwealth,

the appellate court, upon the written motion of the defendant supported by affidavit, shall

determine and approve the payment to the defendant of his or her costs of appeal together

with reasonable attorney's fees to be paid on the order of the trial court upon the entry of the

rescript or the denial of the application.” Mass. R. Crim. P. 15 (d), as amended, 476 Mass.

1501 (2017).

As to the source of payments for fee awards made under rule 15 (d), see Commonwealth

v. Augustine, 470 Mass. 837, 842 n.11, 26 N.E.3d 709 (2015); Commonwealth v.

Phinney, 448 Mass. 621, 624-625, 863 N.E.2d 496 (2007), and cases cited. The Trial Court is

required to pay one-half of each such award from its annual budget appropriation; the

remainder of each award is paid by the district attorney's office that pursued the interlocutory

appeal. See St. 2019, c. 41, § 2, line items 0330-0300 (Trial Court), and 0340-0500

(Hampden district attorney).

Both Mr. Carr

and Mr. Rivera are listed on the county court docket for the

Commonwealth's application (no. SJ-2017-412) as counsel of record for the defendant — Mr.

Carr because he was the court-appointed trial attorney and Mr. Rivera because he filed a

notice of appearance. Only Mr. Carr is listed as counsel of record on the docket for the

defendant's application (no. SJ-2017-417).

This appears to refer to CPCS's procedure by which a court-appointed attorney may

engage an “associate counsel” to assist with certain tasks. See Assigned Counsel Manual,

supra at § 5.Y.1. The assigned counsel submits a voucher to CPCS for the associate's time,

and the associate is then compensated at the rate of forty-five dollars per hour. Id. at §

5.Y.1.f.

The single justice initially ordered the cases to proceed in the Appeals Court. This court

subsequently granted the defendant's application for direct appellate review.

Mr. Rivera

was not certified by CPCS to handle murder cases.

Counsel has filed an itemized list of his time spent on this matter, totaling 160.5 hours.

This includes, among other things, time spent researching and writing the defendant's

opposition to the Commonwealth's request for leave to appeal (from November 3 to

November 28, 2017); time spent preparing his motion for fees; and assorted other time

spent in communication with the defendant, Mr. Carr , and CPCS.

With respect to the amount requested, neither the district attorney nor the Trial Court

opposes the hourly rate of $250, but both claim that the time spent on the matter, and hence

the total amount of fees sought, was excessive.

Black's Law Dictionary 1539 (11th ed. 2019) defines “reimbursement” as “[r]epayment”

or “[i]ndemnification.” Webster's New World College Dictionary 1208 (4th ed. 2007) defines

“reimburse” as “to pay back (money spent)” or “to repay or compensate (a person) for

expenses, damages, losses, etc.”

The fee agreement itself is very telling. Although it says that the defendant would pay

$250 per hour, the provisions for where that money would come from make it plain that the

attorney would obtain payment under rule 15 (d). Those provisions, which are quoted above,

speak only in terms of the attorney being compensated, as if any fee award would belong to

the attorney (e.g., that the attorney “shall recover his fees … upon application to the

appropriate appellate court,” and that the defendant “relinquishes any claim to any award of

… fees”). The agreement says nothing about the defendant being reimbursed for anything he

pays or owes.

The Commonwealth contends that the defendant's recovery of fees is also precluded by

the holding in Commonwealth v. Sparks, 431 Mass. 299, 727 N.E.2d 78 (2000), because

here, as there, CPCS was not informed of the private counsel arrangement before it

happened. Because we base our holding on the principles set forth in the Gonsalves and

Augustine line of cases, we need not address the Commonwealth's additional point, and

accordingly we express no view as to whether Sparks would also bar recovery here.

Content Type: Cases

Terms: Commonwealth v. Vasquez, 485 Mass. 405

Narrow By: -NoneDate and Time: Feb 24, 2021 03:16:50 p.m. EST

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No. 21IN THE

Supreme Court of the United States

___________

PEDRO VASQUEZ,

Petitioner,

MASSACHUSETTS,

Respondent.

___________

On Petition for Writ of Certiorari

to the Massachusetts Supreme Judicial Court

___________

APPENDIX B:

Dockets, Commonwealth v. Vasquez,

Single Justice Decisions:

SJ-2018-0070, SJ-2017-0417, and

SJ-2017-412

___________

JUAN M. RIVERA

JUAN M. RIVERA, ESQ.

1380 Main Street, Suite 420

Springfield, MA 01103

(413) 827-9600

donclave@gmail.com

Counsel for Petitioner

March 1, 2021

Counsel of Record

SUPREME JUDICIAL COURT

for Suffolk County

Case Docket

COMMONWEALTH v. PEDRO VASQUEZ

SJ-2018-0070

CASE HEADER

Case Status

Nature

Sub-Nature

TC Ruling

SJ Ruling

Pet Role Below

Lower Cour t

Interlocutory appeal allowed

Lv for interloc appeal

Mot to Suppress

Mot to Suppress denied

Status Date

Entry Date

Single Justice

TC Ruling Date

TC Number

Full Ct Number

Lower Ct Judge

Defendant in lower court

Hampden Superior Court

03/01/2018

02/13/2018

Lowy, J.

01/10/2018

Richard J. Carey, J.

INVOLVED PARTY

ATTORNEY APPEARANCE

Pedro Vasquez

Defendant/Petitioner

Calvin C. Carr, Esquire

Commonwealth

Plaintiff/Respondent

Katherine E. McMahon, Assistant District Attorney

DOCKET ENTRIES

Entry Date Paper

Entry Text

02/13/2018

Case entered.

02/13/2018 #1

MOTION To Waive Filing Fee with Affidavit filed for Pedro Vasquez by Atty. Calvin Carr.

02/13/2018 #2

Defendant's Petition For Interlocutory Relief Pursuant to Mass. R. Crim. P. 15 (a) (2) with Affidavit filed for

Pedro Vasquez by Atty. Calvin Carr.

02/13/2018 #3

Defendant's Memorandum Of Law In Support Of His Petition For Relief Pursuant to Mass. R. Crim. P. 15 (a)

(2) with attachment and Exhibits 1-7 filed by Atty. Calvin Carr.

02/13/2018 #4

Affidavit Of Notice filled by Atty. Calvin Carr.

02/14/2018

Fee Waiver ALLOWED by Judge. (Lowy, J.)

02/16/2018 #5

Counsel's Affidavit In Support Of Mailing with Certificate of Service filed by Atty. Calvin Carr.

02/22/2018 #6

Commonwealth's Response to the Defendant's Mass. R. Crim P. 15(a) (2) (2017) Application Seeking Leave

to Appeal an Order Denying His Motion to Suppress filed by Assistant District Attorney Katherine E.

McMahon, with attachments and Certificate of Service.

03/01/2018

Under advisement. (Lowy, J.).

03/01/2018 #7

ORDER: ... "it is ORDERED that the application be, and the same hereby is, allowed. The interlocutory appeal

shall proceed in the Appeals Court" ... (Lowy, J.)

03/01/2018 #8

Notice to counsel/parties, regarding paper #7 filed.

As of 11/04/2019 8:00pm

SUPREME JUDICIAL COURT

for Suffolk County

Case Docket

COMMONWEALTH V. PEDRO VASQUEZ

SJ-2017-0417

CASE HEADER

Case Status

Nature

Sub-Nature

TC Ruling

SJ Ruling

Pet Role Below

Lower Cour t

Interlocutory appeal allowed

Lv for interloc appeal

Mot to Suppress

Motion denied

Status Date

Entry Date

Single Justice

TC Ruling Date

TC Number

Full Ct Number

Lower Ct Judge

Defendant in lower court

Hampden Superior Court

01/03/2018

11/06/2017

Budd, J.

10/04/2017

John A. Agostini, J.

INVOLVED PARTY

ATTORNEY APPEARANCE

Pedro Vasquez

Defendant/Petitioner

Calvin C. Carr, Esquire

Commonwealth

Plaintiff/Respondent

Katherine E. McMahon, Assistant District Attorney

DOCKET ENTRIES

Entry Date Paper

Entry Text

11/06/2017

Case entered.

11/06/2017 #1

MOTION to waive filing fee, filed by Attorney Calvin C. Carr.

11/06/2017 #2

Counsel's Affidavit in Support of Defendant's Petition to Waive Fee for Interlocutory Relief filed by Attorney

Calvin C. Carr.

11/06/2017 #3

Defendant's Petition for Interlocutory Relief filed by Attorney Calvin C. Carr

11/06/2017 #4

Counsel's Affidavit In Support of Defendant's Petition for Interlocutory Relief filed by Attorney Calvin C. Carr

with attached Certificate of Service.

11/06/2017 #5

Defendant's Memorandum of Law in Support of His Petition for Relief Pursuant to Mass. R. Crim. P. 15(a)(2)

filed by Attorney Calvin C. Carr.

11/06/2017 #6

Certificate of service filed by Attorney Calvin C. Carr with attached Exhibits 1-5.

11/06/2017

Fee Waiver ALLOWED by Judge. Kafker, J

11/07/2017 #7

Certificate of Mailing filed by Attorney Calvin C. Carr.

11/20/2017 #8

Letter to Assistant Clerk Stephen Cronin from ADA Katherine McMahon saying ... "On November 2, 2017, I

filed the Commonwealth's Mass R. Crim. P. 15 (a) (2) (2017) & G. L. c. 278, § 28E Petition Seeking Leave To

Appeal An Order Allowing The Defendant's Motion To Suppress His Statements in Number SJ-2017-0412.

On November 6, 2017, the defendant filed the above named-named case, Number SJ-2017-0417, seeking

leave to appeal other orders by the same motion judge, in the same underlying case, denying motions to

suppress identifications and a consent search of the defendant's cellular telephone. The rulings at issue in

both petitions are part of a single memorandum of decision. Because the Commonwealth seeks leave to

appeal part of that decision, the Commonwealth does not oppose the defendant's petition in Number SJ2017-0417" filed.

12/22/2017

Under advisement. (Budd, J.).

01/03/2018 #9

ORDER: ... "on the defendant's application for leave to file an interlocutory appeal of the trail judge's

September 25, 2017 order, pursuant to Mass. R. Crim. P. 15 (a) (2). The motion to suppress was allowed in

part, and denied in part. The Commonwealth also filed an application which has a separate order. (See SJ2017-412) Because there are multiple endorsements on the trial court docket, and there is some confusion

regarding the date of filing of the denials regarding this application, the defendants application is considered

timely filed. Upon consideration, it is ORDERED that the application be, and the same hereby is, ALLOWED.

The interlocutory appeal shall proceed in the Appeals Court" ... (Budd, J.)

01/03/2018 #10

Notice to counsel/parties, regarding paper #9 filed.

As of 11/04/2019 8:00pm

SUPREME JUDICIAL COURT

for Suffolk County

Case Docket

COMMONWEALTH v. PEDRO VASQUEZ

SJ-2017-0412

CASE HEADER

Case Status

Nature

Sub-Nature

TC Ruling

SJ Ruling

Pet Role Below

Lower Cour t

Interlocutory appeal allowed

Lv for interloc appeal

Mot to Suppress

Motion allowed

Plaintiff in lower court

Hampden Superior Court

Status Date

Entry Date

Single Justice

TC Ruling Date

TC Number

Full Ct Number

Lower Ct Judge

01/03/2018

11/02/2017

Budd, J.

09/25/2017

John A. Agostini, J.

INVOLVED PARTY

ATTORNEY APPEARANCE

Commonwealth

Plaintiff/Petitioner

Katherine E. McMahon, Assistant District Attorney

Pedro Vasquez

Defendant/Respondent

Calvin C. Carr, Esquire

Juan M. Rivera, Esquire

DOCKET ENTRIES

Entry Date Paper

Entry Text

11/02/2017

Case entered.

11/02/2017 #1

The Commonwealth's Mass. R. Crim. P. 15(a) (2) (2017) & G.L. c. 278, §28E Petition Seeking Leave to

Appeal an Order Allowing the Defendant's Motion to Suppress his Statement with Certificate of Service,

Attachment A, Attachment B on CD, and Attachments Page 1-100 filed by A.D.A. Katherine McMahon.

11/07/2017 #2

Notice of Appearance filed for Pedro Vasquez by Atty. Juan M. Rivera.

11/07/2017 #3

MOTION To Enlarge Respondent's Filing Deadline with Affidavit filed by Atty. Juan Rivera.

11/09/2017 #4

Commonwealth's MOTION for an Enlargement of Time in which to file its Mass. R. Crim. P. 15(a)(2) (2017) &

G. L. c. 278, § 28E Petition Seeking Leave to Appeal an Order Allowing the Defendant's Motion to Suppress

his Statement with Affidavit in Support, Attachment and Certificate of Service filed by A.D.A. Katherine

McMahon. (SEE PAPER #7)

11/29/2017 #5

Defendant-Respondant's Motion Opposing The Commonwealth's Mass. R. Crim. P. 15 (a) (2) (2017) & G. L.

c. 278, § 28E Petition Seeking Leave To Appeal An Order Allowing The Defendant's Motion To Suppress His

Statements with Affidavit filed By Atty. Juan Rivera.

11/29/2017 #6

Memorandum Of Law In Support Of The Defendant-Respondent's Opposition To The CommonwealthPetitioner's Motion Under Mass. R. Crim. P. 15 (a) (2) & G. L. c. 278, § 28E Seeking Leave To Appeal A

Suppression Order Allowing The Defendant's Motion To Suppress His Statements with Exhibits A & B and

Certificate of Service filed by Atty. Juan Rivera.

12/22/2017

Under advisement. (Budd, J.).

01/03/2018 #7

ORDER: ... "on the Commonwealth's application for leave to file an interlocutory appeal of the trail judge's

September 25, 2017 order, pursuant to Mass. R. Crim. P. 15 (a) (2). The motion to suppress was allowed in

part, and denied in part. The Commonwealth also filed an application which has a separate order. (See SJ2017-417) In accordance with Commonwealth v. Jordan, 469 Mass. 134 (2014), and said Rule 15, the

threshold procedural motion for late filing shall be addressed first. Upon consideration, it is ORDERED that

the Commonwealth's motion for permission to file the application late be, and hereby is, ALLOWED. It is

FURTHER ORDERED that the application be, and the same, hereby is, ALLOWED. The interlocutory appeal

shall proceed in the Appeals Court ..." (Budd, J.)

01/03/2018 #8

Notice to counsel/parties, regarding paper #7 filed.

As of 11/04/2019 8:00pm

No. 21IN THE

Supreme Court of the United States

___________

PEDRO VASQUEZ,

Petitioner,

MASSACHUSETTS,

Respondent.

___________

On Petition for Writ of Certiorari

to the Massachusetts Supreme Judicial Court

___________

APPENDIX C:

Dockets,

Commonwealth v. Vasquez,

SJC-12562 and

SJ-2020-M024

___________

JUAN M. RIVERA

JUAN M. RIVERA, ESQ.

1380 Main Street, Suite 420

Springfield, MA 01103

(413) 827-9600

donclave@gmail.com

Counsel for Petitioner

March 1, 2021

Counsel of Record

SUPREME JUDICIAL COURT

for the Commonwealth

Case Docket

COMMONWEALTH vs. PEDRO VASQUEZ

SJC-12562

CASE HEADER

Case Status

Nature

Appellant

Brief Status

Quorum

Argued Date

AC/SJ Number

DAR/FAR Number

Lower Cour t

Route to SJC

Motion reconsideration denied

Crime Against Public Order

Plaintiff

Status Date

Entry Date

Case Type

Brief Due

Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, Kafker, JJ.

12/06/2018

Decision Date

Citation

2018-P-0320

DAR-26176

Lower Ct Number

Hampden Superior Court

Lower Ct Judge

Direct Appellate Review

10/02/2020

07/19/2018

Criminal

08/13/2020

485 Mass. 405

John A. Agostini, J.

ADDITIONAL INFORMATION

Transcripts received: 5 volumes (on CD). Transcripts dates: 4/19/17, 4/20/17, 4/21/17, 6/6/16 and 12/14/17. (Scanned)

Previously reported at vol.482, p.850.

INVOLVED PARTY

ATTORNEY APPEARANCE

Commonwealth

Plaintiff/Appellant

Blue br & appendix transf w/case

Katherine E. McMahon, A.D.A.

Maximilian Bennett, Esquire

Pedro Vasquez

Defendant/Appellee

Red brief & appendix filed

Juan M. Rivera, Esquire

Merritt Schnipper, Esquire

DOCUMENTS

Appellant Commonwealth Brief

Appellee Vasquez Brief

Appellant Commonwealth Reply Brief

DOCKET ENTRIES

Entry Date Paper

Entry Text

07/19/2018 #1

Entered. Notice to counsel.

07/19/2018

Transferred from Appeals Court: Appellant's brief and appendix - 4 copies of each.

07/25/2018 #2

Additional 8 copies of each appellant's brief and appendix filed by Commonwealth.

08/16/2018 #3

MOTION to Exceed Page Limit Set Forth in Mass. R. A. P. 16(h), filed for Pedro Vasquez by Merritt

Schnipper, Esquire. (ALLOWED).

08/31/2018 #4

SERVICE of brief & supplemental appendix for Defendant/Appellee Pedro Vasquez by Merritt Schnipper,

Esquire.

09/04/2018 #5

NOTICE of November argument sent.

09/26/2018 #6

MOTION for Court to Review Surveillance Video in Connection with Appeal and Prior to Oral Argument, filed

for Pedro Vasquez by Merritt Schnipper, Esquire.

10/03/2018 #7

ORDERED for argument on November 5. Notice sent.

10/09/2018 #8

MOTION to Sever Oral Arguments, filed for Pedro Vasquez by Merritt Schnipper, Esquire.(No action

necessary. See docket no. 10.)

10/11/2018 #9

MOTION to extend to 10/31/2018 filing of brief & to Reschedule Oral Argument of Commonwealth by

Katherine E. McMahon, A.D.A.. (ALLOWED to October 31, 2018.)

10/15/2018 #10

ORDER: The order scheduling this case for argument on November 5, 2018, is VACATED. This matter may

be rescheduled for the December or January sittings. This order does not affect the argument in SJC-12556,

scheduled for November 5, 2018. By the Court.

10/15/2018 #11

Limited OPPOSITION to Commonwealth's Motion to Enlarge time and Reschedule oral Argument, filed by

Pedro Vasquez.

10/19/2018 #12

NOTICE of December argument sent.

10/25/2018 #13

ORDERED for argument on December 4. Notice sent. Order vacated. See Paper 15.

11/02/2018 #14

SERVICE of appellant's reply brief for Commonwealth by Katherine E. McMahon, A.D.A..

11/07/2018 #15

ORDERED for argument on December 6. Notice sent.

11/23/2018 #16

SERVICE of appellee's reply brief for Pedro Vasquez by Merritt Schnipper, Esquire.

12/06/2018

Oral argument held. (Gants, C.J., Lenk, J., Gaziano, J., Lowy, J., Budd, J., Cypher, J., Kafker, J.). View Webcast

04/26/2019 #17

ORDER waiving 130-Day rule. Notice to counsel.

08/28/2019 #18

RESCRIPT (Full Opinion): The portion of the order allowing the defendant's motions to suppress his

custodial statements is affirmed. The denial of the motion to suppress the out-of-court identifications is

affirmed. So much of the orders as deny the motions to suppress evidence obtained from a search of the

defendant's cellular telephone and the CSLI are reversed. (By the Court)

09/23/2019 #19

APPEARANCE of Juan M. Rivera, Esquire for Pedro Vasquez.

09/23/2019 #20

MOTION FOR ATTORNEY FEES AND COSTS, filed for Pedro Vasquez by Juan M. Rivera, Esquire. (See entry

no. 25).

09/25/2019

RESCRIPT ISSUED to trial court.

10/22/2019 #21

Motion to extend for filing a response to Paper #20 filed for Commonwealth by Katherine McMahon, A.D.A..

(ALLOWED to October 31, 2019.)

10/30/2019 #22

Commonwealth's Response to Paper #20, filed by Kate McMahon, A.D.A..

11/06/2019 #23

Defendant's Reply to Commonwealth's Response to Motion for Attorney Fees and Costs, filed by Attorney

Juan M. Rivera.

06/18/2020 #24

ORDER OF REFERENCE of docket entries 20, 21, and 23 to single justice for recommendation.

08/13/2020 #25

Full Opinion: The motion for attorney's fees and costs is denied.

08/24/2020 #26

Motion to extend time to file Motion for Reconsideration or Modification, filed for Pedro Vasquez by Attorney

Juan Rivera. (8/28/2020) Allowed, in part, motion due on or before September 11, 2020.

08/25/2020 #27

Corrected Affidavit of Counsel in Support of Motion to file a Motion for Reconsideration late, filed for Pedro

Vasquez by Attorney Juan Rivera.

09/11/2020 #28

Motion for Reconsideration or Modification on Denial of Motion for Attorney's Fees and Costs, filed for Pedro

Vasquez by Attorney Juan Rivera.

10/02/2020 #29

DENIAL of Motion for Reconsideration on Denial of Motion for Attorney's Fees and Costs. (By the Court)

As of 10/02/2020 4:20pm

SUPREME JUDICIAL COURT

for Suffolk County

Case Docket

COMMONWEALTH v. PEDRO VASQUEZ

SJ-2020-M024

CASE HEADER

Case Status

Nature

Sub-Nature

TC Ruling

SJ Ruling

Pet Role Below

Lower Cour t

Dismissed

Referred motion

Attorney Fees

Status Date

Entry Date

Single Justice

TC Ruling Date

TC Number

Full Ct Number

Lower Ct Judge

08/14/2020

06/19/2020

Lenk, J.

SJC-12562

INVOLVED PARTY

ATTORNEY APPEARANCE

Pedro Vasquez

Defendant/Appellee

Juan M. Rivera, Esquire

Merritt Schnipper, Esquire

Commonwealth

Plaintiff/Appellant

Katherine E. McMahon, Assistant District Attorney

Maximilian Bennett, Assistant District Attorney

Executive Office of the Trial Cour t

Other interested party

Daniel P. Sullivan, Esquire

Calvin Carr

Other interested party

Calvin C. Carr, Esquire

DOCKET ENTRIES

Entry Date Paper

Entry Text

06/19/2020

Case entered.

06/19/2020 #1

ORDER with attachments: "It is hereby ORDERED that the following matter be referred to the Single Justice

for a recommendation to the Full Court: MOTION FOR ATTORNEY FEES AND COSTS, filed for Pedro

Vasquez by Juan M. Rivera, Esquire." (Francis V. Kenneally, Clerk)

06/19/2020

Under advisement. (Lenk, J.).

06/19/2020 #2

ORDER: "... before making my recommendation, I would like to hold a telephonic hearing on Monday, June

29, 2020, at 11:00 a.m. The clerk of the county court will make the necessary arrangements with counsel. I

would like the following to participate: Mr. Rivera, Mr. Carr, Ms. McMahon or another duly authorized

representative from the office of the District Attorney for the Hampden District, and Mr. Sullivan or another

duly authorized representative of the Executive Office of the Trial Court. Counsel should be prepared to

address questions concerning Mr.Carr's and Mr. Rivera's involvement as counsel for the defendant in this

case, the entitlement to fees in the circumstances, and the amount of the fees, if any, to be awarded. The

clerk of the county court is to provide a copy of this order to each of the attorney's listed above by e-mail

today." (Lenk, J.)

06/19/2020

Telephone Hearing scheduled for 06/29/2020.

06/19/2020 #3

EMAIL Notice to Counsel/Parties Re: P.# 2 filed.

06/29/2020

Hearing held before (Lenk, J.)

06/29/2020 #4

Copies of documents submitted by Atty. Juan Rivera.

08/14/2020

Docket Note: The full court has issued its decision in SJC-12562, Justice Lenk having submitted her

recommendation directly to the full court. Accordingly, this matter is dismissed.

As of 08/14/2020 1:25pm

No. 21IN THE

Supreme Court of the United States

___________

PEDRO VASQUEZ,

Petitioner,

MASSACHUSETTS,

Respondent.

___________

On Petition for Writ of Certiorari from the

Massachusetts Supreme Judicial Court

___________

APPENDIX D:

Defendant's Motion for Reconsideration,

Commonwealth v. Vasquez, with Exhibits

___________

JUAN M. RIVERA

JUAN M. RIVERA, ESQ.

1380 Main Street, Suite 420

Springfield, MA 01103

(413) 827-9600

donclave@gmail.com

Counsel for Petitioner

March 1, 2021

Counsel of Record

COMMONWEALTH OF MASSACHUSETTS

SUPREME JUDICIAL COURT

SJC-12562

SJ-2020-M024

SJ-2017-412

COMMONWEALTH,

Appellant

PEDRO VASQUEZ

Defendant-Appellee

DEFENDANT-APPELLEE’S REQUEST FOR RECONSIDERATION

The Defendant-Appellee, Pedro Vasquez, [“Mr.

Vasquez”], through counsel, Juan M. Rivera,

respectfully requests a full hearing before this

Honorable Court to reconsider its opinion in SJ-12562

(August 13, 2020) 1 pursuant to Mass. R. App. P. 27 and

Art. 11 of the Declaration of Rights. 2

This Honorable Court should consider how its

opinion impacts the right to choice of counsel, as

contained in Art. 12 and the 6th and 14th Amendments to

See Commonwealth v. Vasquez, 485 Mass. 405 (2020).

See Mass. R. App. P. 27 (2019); see also Art. 11 and

Commonwealth v. Lopez, 430 Mass. 244, 245-246

(1999)(granting the right of appellate review of the

denial of attorney’s fees and costs).

the U.S. Constitution. 3 Article 1, Section 10, Clause 1

of the U.S. Constitution 4 should further guide this

Honorable Court against impairing the contract entered

into here, which relied on prior applications of Mass.

R. Crim P. 15(d) and the legislative appropriation 5 to

pay for legal services rendered to defend against the

Commonwealth’s interlocutory Rule 15(a)(2) “detour.” 6

As the Supreme Court stated in 1885 in Fisk v.

Jefferson Police Jury, where it reversed the Louisiana

Supreme Court’s decision denying commission payments to

Atty. Fisk:

“The vice of the argument of the Supreme Court

of Louisiana is in limiting the protecting

power of the constitutional provision against

See Art. 12 and U.S. Const. amend. 6 and amend. 14;

see also Commonwealth v. Francis, 485 Mass. 86, 95-98

(2020).

4 See Art. 1, Sec. 10, cl. 1, U.S. Constitution

(impairment of contracts clause).

5 Compare “An Act Making Appropriations for the Fiscal

Year 2018 for the Maintenance of the Departments,

Boards, Commissions, Institutions and Certain

Activities of the Commonwealth, for Interest, Sinking

Fund and Serial Bond Requirements and for Certain

Permanent Improvements,” Ste. 2017, c. 47, sec. 2,

line items 0330-0300 (AOTC) and 0340-0500 (District

Attorney Hampden District) (funding payment of legal

fees and costs under Rule 15(d) for Rule 15(a)(2)

applications effective July 1, 2017 to June 30, 2018)

with Ste. 2019, c. 41, sec. 2 (similarly titled

statute for FY2020 with same Rule 15(d) funding for

same line items effective July 1, 2020 to June 30,

2021).

6 See Commonwealth v. Vasquez, 485 Mass. at 411.

impairing the obligation of contracts to

express contracts, to specific agreements, and

in rejecting that much larger class in which

one party having delivered property, paid

money, rendered service, or suffered loss at

the request of or for the use of another, the

law completes the contract by implying an

obligation on the part of the latter to make

compensation. This obligation can no more be

impaired by a law of the State than that

arising on a promissory note.” 7

This Honorable Court should reconsider its

application of the “reimbursement rule” to Rule 15(d),

in light of how “reimbursement” has been applied

previously to the Commonwealth, i.e. the prosecutor,

and the AOTC, pursuant to Rule 15(d) where Atty. Rivera

was paid directly in 2017, and where the client in that

case did not advance property for the appeal. 8

This Honorable Court’s opinion now restrains the

ability of indigent defendants who are entitled to

court-appointed counsel, and formerly allowed to freely

exercise their 6th Amendment right to their choice of

private counsel by denying them funds designated by

Rule 15(d) and appropriated by statute 9 for the payment

Fisk v. Jefferson Police Jury, 116 U.S. 131, 133-34

(1885).

8 See Ex. A, Copy of 2017 Direct Payment for

Commonwealth v. Alvarez, SJ-2017-0156 by Hampden DA to

Atty. Rivera.

9 See Ste. 2019, c. 41, sec. 2, and Ste. 2017, c. 47,

sec. 2, supra Note 5.

of their attorney’s fees upon the Commonwealth’s Rule

15(a)(2) request for an interlocutory appeal. 10

However, Rule 15(d) “states what it means and means

what it states.” 11

Payment is mandatory. 12

Now, neither Mr. Vasquez, nor other friendless,

poor defendants, are able to enjoy the benefits of Rule

15(d) unless, plainly stated, they have money to

advance. 13 The new “rule of reimbursement” subordinates

indigent defendants to rich defendants. 14

It violates

the equal protection guarantee to the right to choose

private counsel as articulated in the 6th and 14th

Amendments, Art. 12, and formerly allowed by Rule

15(d)’s mandatory payment by the Commonwealth of

attorney’s fees and costs incurred by the defendantappellee. 15

The effect is that private attorneys

“The rule and the governing law establish that

payment of the defendant’s attorney’s fees and costs is

mandatory.” Commonwealth v. Lopez, 430 Mass. 244, 246

(1999); see also Commonwealth v. Francis, 485 Mass. 86,

95-98 (2020) and Luis v. United States, 136 S. Ct.

1083, 1090-1091 (2016)(identifying choice of private

counsel as protected by the 6th Amendment and, in

Francis, Art. 12). See Francis, 485 Mass. at 97.

11 Commonwealth v. Lopez, 430 Mass. 244, 247 n.2

(1999).

12 See Lopez, 430 Mass. at 246.

13 See Commonwealth v. Vasquez, 485 Mass. at 414-415.

14 See id.

15 See amend. 6 and amend. 14, U.S. Const., and Art.

12; see also Mass. R. Crim. P. 15(d)(2017) and Ste.

2017, c. 47, sec. 2, line items 0330-0300 (AOTC) and

0340-0500 (Hampden County DA).

contemplating the representation of an accused

individual in similar circumstances for compensation

will have to choose to decline representation, or

voluntarily work for free. 16

This has additional

disparate impacts on communities of color by further

disenfranchising specific groups (i.e. Latinos and

Blacks) with high poverty rates disproportionately. 17

This Honorable Court should heed the cardinal rule

of democracy: “Thou shalt not ration justice.” 18

Rule

15(d)’s stated purpose is “to equalize the resources of

the defendant with those of the Commonwealth.” 19 Rule

15(d) should not deprive poor defendants of their

choice of counsel, nor private counsel who take on such

cases of their livelihood. 20 Rule 15(d) applies now only

for wealthy defendants and/or those attorneys for whom

See Commonwealth v. Vasquez, 485 Mass. at 414-415.

See “Racial Disparities in the Massachusetts

Criminal System,” Harvard Law School Criminal Justice

Policy Program (Sept. 2020).

18 Address by Judge Learned Hand before the Legal Aid

Society of New York, Feb. 16, 1951, 9 NLADA BRIEFCASE

5 (1951).

19 Commonwealth v. Gonsalves, 432 Mass. 613, 617

(2000).

20 Designating Atty. Rivera as appearing “pro se” is not

accurate. Atty. Rivera was before this Honorable Court

in this matter for Mr. Pedro Vasquez’s motion for

attorney’s fees and costs.

pro-bono work does not present to them a financial

burden. This is unjust.

In Gonsalves, this Honorable Court stated that the

retained lawyer should not be placed in the untenable

position of having to “suffer financial loss or

abandoning his or her client” in the event that the

Commonwealth appeals. 21 Atty. Rivera, previously engaged

in pro-bono representation for Mr. Vasquez, was faced

with three choices here: (1)proceeding in his

engagement with Mr. Vasquez under a fee agreement

whereby he could be paid pursuant to Rule 15(d); (2)

continuing to work pro-bono, voluntarily, yet

financially burdened; or, (3) abandoning his

representation of Mr. Vasquez altogether. 22 A private

fee arrangement was made, here, where legal fees and

costs were to be incurred by Mr. Vasquez, in exchange

for the legal services rendered by Atty. Rivera. 23

Rule 15(d) provides the yearly funding as

designated by the Legislature for the mandatory payment

by the Commonwealth of Mr. Vasquez’s legal fees and

Commonwealth v. Gonsalves, 432 Mass. 613, 617 (2000)

See Commonwealth v. Phinney, 448 Mass. 621,623

(2007) citing Gonslaves, 432 Mass. at 617.

23 See Ex. B, Mr. Vasquez’s Fee Agreement at paragraph

4, and Fisk, 116 U.S. at 134.

costs. 24 This Honorable Court should abide by the

agreement made, follow the mandatory language of Rule

15(d), and award payment upon an actual determination

of reasonable fees. 25

The Commonwealth, as in the past,

would be responsible to pay those fees and would do so

directly to the attorney. 26

The contract made between Atty. Rivera and Mr.

Vasquez, disparaged by this Honorable Court as

“illusory” and less than “bona fide,” 27 is now

effectively impaired in violation of the Contracts

Clause of the U.S. Consitution. 28 Indigent defendants

“The rule and the governing law establish that

payment of the defendant’s attorney’s fees and costs is

mandatory.” Commonwealth v. Lopez, 430 Mass. 244, 246

(1999).

25 See id.; see also Fisk v. Jefferson Police Jury, 116

U.S. 131 (1885).

26 See Ex. A, Copy of 2017 Direct Payment for

Commonwealth v. Alvarez, SJ-2017-0156 by Hampden DA to

Atty. Rivera.

27 See Vasquez, 485 Mass. at 412, 414.

28 See Art. 1, sec. 10, cl. 1, U.S. Const.; see also

U.S. Trust Co. v. New Jersey, 431 U.S. 1, 17 (1977)

citing Fletcher v. Peck, 6 Cranch 87, 137-139

(1810)(limiting the power of States to regulate

contracts between private parties); New Orleans Water

Works Co. v. Louisiana Sugar Refining Co., 125 U.S. 18

(1888)(discussing availability of review where

legislative act of the state upheld by judgment);

Cross Lake Club v. Louisiana, 224 U.S. 632

(1912)(recognizing the federal question presented when

state courts give effect to subsequent laws of states

which allege impairment of contracts) and Cleveland &

P.R. Co. v. Cleveland, 235 U.S. 50, 54

(1914)(reiterating federal view that impairment of

contracts must be by subsequent legislation and not

are now systematically deprived of exercising their

choice of retaining private counsel. 29

The 6th

Amendment and Art. 12 right to counsel and the right to

choose private counsel are both distinct rights. 30

Mr. Vasquez ultimately chose Atty. Rivera to be

his private counsel with a fee agreement for SJ-20170412 guaranteeing payment pursuant to Rule 15(d). 31

The fee agreement conformed to a prior agreement used

in another where that client did not advance fees to

Atty. Rivera. 32

The contract stated Mr. Vasquez’s

promise to pay for Atty. Rivera’s legal services and

costs. 33 The expressed intent of the parties in the

contract and the good faith they had upon relying upon

the application of the law and prior reimbursement is

unfairly disregarded by this Honorable Court.

merely a judicial decision resulting in the

deprivation of contract rights).

29 See Commonwealth v. Francis, 485 Mass. 86, 95-98

(2020) and Luis v. United States, 136 S. Ct. 1083,

1090-1091 (2016).

30 See Commonwealth v. Francis, 485 Mass. 86, 95-98

(2020).

31 See Commonwealth v. Vasquez, SJ-2017-412 (2018)

(Budd, J.). Mr. Vasquez also received Atty. Rivera’s

voluntary pro-bono services for the legal work he

performed for Vasquez, SJ-2017-0417 (Budd, J.) and

Vasquez, SJ-2018-0070 (2018) (Lowy, J.).

32 Compare Ex. B, Mr. Vasquez’s Fee Agreement with Ex.

C, Mr. Alvarez’s Fee Agreement, for similar obligatory

language.

33 See Ex. B, Mr. Vasquez’s Fee Agreement at par. 4.

In paragraph (4) of the Fee Agreement, it states,

“[i]n addition to the legal fees, Client shall also pay

all costs in connection with the representation of this

matter.” 34

This very important fact was overlooked.

The agreement made is not significantly different than

the attorney’s fees contract submitted by Atty. Rivera

to the Single Justice and which was approved and paid

directly to him by the Hampden County District

Attorney’s Office and the AOTC in 2017 in Alvarez. 35

Finally, the AOTC and the prosecutor’s office

division of payment for the amount that this Honorable

Court orders for Rule 15(d) awards 36 are made directly

to the attorney by the Commonwealth and the AOTC, as

opposed to the client. 37

If it is the Client being

“reimbursed,” 38 then why do these payments go directly

to the Attorneys? This Honorable Court should consider

this important fact.

See Ex. B, Mr. Vasquez’s Fee Agreement at par. 4

(emphasis added).

35 See Ex. A, Copy of 2017 Direct Payment for

Commonwealth v. Alvarez, SJ-2017-0156, by Hampden DA

to Atty. Rivera; compare Ex. B with Ex. C.

36 See Mass. R. Crim. P. 15(d) and Ste. 2017, c. 47,

sec. 2, and Ste. 2019, c. 41, sec. 2, line items 03300300 (AOTC) and 0340-0500 (Hampden DA).

37 See Ex. A, Copy of 2017 Direct Payment for

Commonwealth v. Alvarez, SJ-2017-0156, by Hampden DA

to Atty. Rivera.

38 See Commonwealth v. Vasquez, 485 Mass. at 411.

It is respectfully requested that this Honorable

Court reconsider the important legal issues present,

but not reached, which are capable of repetition and

yet evading review, raised herein as to Rule 15(d)’s

new effect on the right to choice of counsel, and its

effect on the constitutional prohibition against

impairing contracts pursuant to Art. 1, Sec. 10, Cl. 1

of the U.S. Constitution. 39

Respectfully submitted,

PEDRO VASQUEZ, Appellee

By and through counsel,

/s/Juan M. Rivera/s/

Juan M. Rivera, Esq.

BBO#: 658645

1380 Main Street, Ste. 420

Springfield, MA 01103

(413) 827-9600

donclave@gmail.com

Dated: September 11, 2020

See Art. 1, Sec. 10, Cl. 1 of the U.S. Constitution;

see Fisk v. Jefferson Police Jury, 116 U.S. 131

(1885).

D 10

COMMONWEALTH OF MASSACHUSETTS

SUPREME JUDICIAL COURT

SJC-12562

SJ-2020-M024

SJ-2017-412

COMMONWEALTH,

Appellant

PEDRO VASQUEZ

Defendant-Appellee

DEFENDANT-APPELLEE’S REQUEST FOR RECONSIDERATION

EXHIBIT A: COPY OF 2017 DIRECT PAYMENT FOR COMMONWEALTH V.

ALVAREZ, SJ-2017-0156, BY HAMPDEN DA TO ATTY. RIVERA

D 11

D 12

COMMONWEALTH OF MASSACHUSETTS

SUPREME JUDICIAL COURT

SJC-12562

SJ-2020-M024

SJ-2017-412

COMMONWEALTH,

Appellant

PEDRO VASQUEZ

Defendant-Appellee

DEFENDANT-APPELLEE’S REQUEST FOR RECONSIDERATION

EXHIBIT B: MR. VASQUEZ’S FEE AGREEMENT

D 13

*Juan M. Rivera, Esq.

-------------Attorney At Law------------1380 Main Street, Suite 420

Springfield, MA 01103

(413] 827-9600

fieI)I,PedroVasquez,of

FEE AGREEMENT

[redacted address]............................ ,(the "Client")

hereby agree to pay Juan M. Rivera, Esq. (the "Attorney") whose office is located at 1380 Main

Street, Suite 420, Springfield, MA in connection with docket numbers 1579CR00375 an hourly

rate of $250/hr (two hundred fifty dollars per hour), billable in 1/10 hour increments (i.e. every 6

minutes). This fee is for the Attorney's engagement in providing his services as appellate

counsel in preparation to respond to an interlocutory appeal requested by the Commonwealth

after the allowance of a motion to suppress for the Client on the above-stated docket for the

above mentioned docket numbers. It is understood that the Attorney shall make an application to

the appropriate appellate court for costs pursuant to Mass. R. Crim. P. 15(d) and the Client

hereby consents to the Attorney's recovery of said fee and relinquishes any claim to any award

of costs or fees by the appropriate appellate court. �

t_:.('i

f1/.._2) This fee does not include representation beyond any responsive pleading to the interlocutory

appeal requested by the Commonwealth on the above-entitled matters. It does not include any

post-conviction proceedings in any court. This agreement does not take the place of any other

agreements made between the Client and the Attorney regarding the above-stated dockets in

paragraph one, nor does it change any rights nor responsibilities by either party. If the appellate

court accepts the matter for appeal, the Client and the Attorney shall make a further, separate,

agreement for the Attorney to handle said accepted appeal. Trial counsel, Calvin C. Carr, shall,

at all times, remain as trial counsel for the above stated dock

Attorney Carr and the Client are changed by this agreement.

�

responsibilities between

�

C,{j

fr/.))It is understood by the parties that the Attorney shall recover his fees and costs upon

application to the appropriate appellate court pursuant to Massachusetts Rules of Criminal

Procedure 15(d). The Client shall take all steps necessary, as requested by the Attorney, to

submit any affidavits and/or other documentation or evidence necessary for the Attorney to

present said application to the court. Furthermore, the Client agrees that the fee charged is

�

D 14

D 15

COMMONWEALTH OF MASSACHUSETTS

SUPREME JUDICIAL COURT

SJC-12562

SJ-2020-M024

SJ-2017-412

COMMONWEALTH,

Appellant

PEDRO VASQUEZ

Defendant-Appellee

DEFENDANT-APPELLEE’S REQUEST FOR RECONSIDERATION

EXHIBIT C: MR. ALVAREZ’S FEE AGREEMENT

D 16

$Juan M. Rivera, Esq.

------------Attorney At lawi-----------1380 Main Street, Suite 420

Springfield, MA 01103

(413) 827-9600

FEE AGREEMENT

ct (l)I,ChristianAlvarez,of [redacted address]_______________________________ ,(the"Client")

hereby agree to pay Juan M. Rivera, Esq. (the "Attorney") whose office is located at 1380 Main

Street, Suite 420, Springfield, MA in connection with docket numbers 1517CR003197 and

1517CR03153, an hourly rate of $250 (two hundred fifty dollars) per hour, billable in 1/10

hour increments. This fee is for the Attorney's engagement in providing his services as lawyer

in preparation to respond to an interlocutory appeal requested by the Commonwealth after the

allowance of a motion to suppress for the Client on the above-stated dockets for the above

mentioned docket numbers. It is understood that the Attorney shall make an application to the

appropriate appellate court for costs pursuant to Mass. R. Crim. P. 15(d) and the Client hereby

consents to the Attorney's recovery of said fee and relinquishes any claim to any award of costs

or fees by the appropriate appellate court.

C!f' (2) This fee does not include representation beyond any responsive pleading to the interlocutory

appeal requested by the Commonwealth on the above-entitled matters. It does not include any

post-conviction proceedings in any court, including Superior Court in the event of an indictment.

This agreement does not substitute any prior agreements made between the Client and the

Attorney regarding the above-stated dockets in paragraph one, nor does it change any rights nor

responsibilities by either party. If the appellate court accepts the matter for appeal, the Client

and the Attorney shall make a further, separate, agreement for the Attorney to handle said

accepted appeal.

(}t (3) It is understood by the parties that the Attorney shall recover his fees and costs upon

application to the appropriate appellate court pursuant to Massachusetts Rules ofCriminal

Procedure 15(d). The Client shall take all steps necessary, as requested by the Attorney, to

submit any affidavits and/or other documentation or evidence necessary for the Attorney to

present said application to the court. Furthermore, the Client agrees that the fee charged is

reasonable under the circumstances because of the time constraints placed on the Attorney and

lost opportunity costs incurred by the Attorney in handling this matter.

D 17

{ff (4) In addition to the legal fees, the Client shall also pay all costs in connection with the

representation ofthis matter. Examples of these costs and out ofpocket expenses which the

Attorney may make in connection with this matter are, without limitation, filing fees, witness

fees, expert witness fees, travel, sheriff's fees, deposition expenses, transcript expenses, court

recordings, investigation, copies, telephone calls and other incidental expenses. With regard to

such out ofpocket expenditures, the Attorney agrees to obtain the Client's approval before

incurring any single cost or disbursement in excess of$150.00. ·rt,is F"'.-"jr.,_f h i !> s ... L.je�t

f., P"",_j,.... fh +hree.(3).

� (5) If the Client does not cooperate as required under this agreement, or if the Client has

misrepresented or failed to disclose important facts to the Attorney, or if the Client unreasonably

fails to follow the Attorney's advice, the Attorney is entitled to apply to the court for leave to

withdraw from the handling of the case. Ifany ofthese events occur and leave is granted, and the

Attorney elects to withdraw, the Client shall promptly arrange for a substitution ofcounsel. In

addition, there shall be an accounting by the Attorney oflegal services rendered and outstanding

expenses and fees to be paid by the Client at the time ofwithdrawal. All amounts owing by

either party, ifany, shall be paid to the other party within thirty (30) days.

�6) The Attorney and Client state that no results have been guaranteed by the Attorney to the

Client and that this Agreement is not based on any such promises or anticipated results.

We, Christian Alvarez (the Client) and Juan M. Rivera, Esq, (the Attorney), have read the above

r:;J_

Fee Agreement on this 2.5 day ofApril 2017, and understand its terms. Both have signed it as

our free act and deed.

Christian Alvarez, Client

[redacted address]

. Rivera, Esq., Attorney

The Client acknowledges a receipt of a copy ofthis Agreement.

Christian Alvarez, Client

Date

D 18

COMMONWEALTH OF MASSACHUSETTS

SUPREME JUDICIAL COURT

SJC-12562

SJ-2020-M024

SJ-2017-412

COMMONWEALTH,

Appellant

PEDRO VASQUEZ

Defendant-Appellee

__________________________________________________________

CERTIFICATE OF SERVICE

_________________________________________________________

I, Juan M. Rivera, hereby certify that on this the 11th day of

September 2020, I served the foregoing Defendant-Appellee’s

Request for Reconsideration, with Exhibits A-E, upon Hampden

County District Attorney Gulluni’s Office, 50 State Street,

Springfield, MA, via email using the Massachusetts Court System

EFileMA:

Kate McMahon at kate.mcmahon@state.ma.us;

Calvin Carr at carr@crocker.com; and the Administrative Office

of the Trial Court at Daniel.sullivan2@jud.state.ma.us.

Electronically signed

/s/Juan M. Rivera/s/

Juan M. Rivera

BBO#: 658645

D 19

COMMONWEALTH OF MASSACHUSETTS

SUPREME JUDICIAL COURT

SJC-12562

SJ-2020-M024

SJ-2017-412

COMMONWEALTH,

Appellant

PEDRO VASQUEZ

Defendant-Appellee

__________________________________________________________

CERTIFICATE OF COMPLIANCE

_________________________________________________________

I, Juan M. Rivera, hereby certify that the foregoing “Request

for Reconsideration” filed pursuant to Mass. R. App. P. 27,

complies with the requirements of Mass. R. App. P. 16(k) as it

contains 10 pages of text in “COURIER NEW” monospaced font, as

determined using Microsoft Office 365 WORD’s “Word Count”

feature.

Electronically signed

/s/Juan M. Rivera/s/

Juan M. Rivera

BBO#: 658645

D 20

No. 21IN THE

Supreme Court of the United States

___________

PEDRO VASQUEZ,

Petitioner,

MASSACHUSETTS,

Respondent.

___________

On Petition for Writ of Certiorari to the

Massachusetts Supreme Judicial Court

___________

APPENDIX E:

Indictment,

Commonwealth v. Vasquez

___________

JUAN M. RIVERA

JUAN M. RIVERA, ESQ.

1380 Main Street, Suite 420

Springfield, MA 01103

(413) 827-9600

donclave@gmail.com

Counsel for Petitioner

March 1, 2021

Counsel of Record

No. 21IN THE

Supreme Court of the United States

___________

PEDRO VASQUEZ,

Petitioner,

MASSACHUSETTS,

Respondent.

___________

Petition for Writ of Certiorari to the

Massachusetts Supreme Judicial Court

___________

APPENDIX F:

Defendant's Motion for Attorneys Fees and

Costs, with Exhibits as filed,

Commonwealth v. Vasquez, SJC-12562

___________

JUAN M. RIVERA

JUAN M. RIVERA, ESQ.

1380 Main Street, Suite 420

Springfield, MA 01103

(413) 827-9600

donclave@gmail.com

Counsel for Petitioner

March 1, 2021

Counsel of Record

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No. 21IN THE

Supreme Court of the United States

___________

PEDRO VASQUEZ,

Petitioner,

MASSACHUSETTS,

Respondent.

___________

On Petition for Writ of Certiorari to the

Massachusetts Supreme Judicial Court

___________

APPENDIX G:

Docket,

Commonwealth v. Alvarez,

SJ-2017-0156

___________

JUAN M. RIVERA

JUAN M. RIVERA, ESQ.

1380 Main Street, Suite 420

Springfield, MA 01103

(413) 827-9600

donclave@gmail.com

Counsel for Petitioner

March 1, 2021

Counsel of Record

SUPREME JUDICIAL COURT

for Suffolk County

Case Docket

COMMONWEALTH v. CHRISTIAN ALVAREZ, JR. and CARLOS

RUBEN RAMOS

SJ-2017-0156

CASE HEADER

Case Status

Nature

Sub-Nature

TC Ruling

SJ Ruling

Pet Role Below

Lower Cour t

Interlocutory appeal denied

Lv for interloc appeal

Mot to Suppress

Mot to Suppress allowed

Plaintiff in lower court

Holyoke District, HD

Status Date

Entry Date

Single Justice

TC Ruling Date

TC Number

Full Ct Number

Lower Ct Judge

11/20/2017

04/18/2017

Budd, J.

03/16/2017

Laurie MacLeod, J.

INVOLVED PARTY

ATTORNEY APPEARANCE

Commonwealth

Plaintiff/Petitioner

Katherine E. McMahon, Assistant District Attorney

Christian Alvarez, Jr.

Defendant/Respondent

Juan M. Rivera, Esquire

Carlos Ruben Ramos

Defendant/Respondent

Andrew P. Gilbert, Esquire

DOCKET ENTRIES

Entry Date Paper

Entry Text

04/18/2017

Case entered.

04/18/2017 #1

Commonwealth's Mass. R. Crim. P. 15 (a) (2) (2016) & G. L. c. 278, § 28E Petition Seeking Leave To Appeal

A Suppression Order with Certificate of Service and Record Attachments filed by ADA Katherine McMahon.

05/02/2017 #2

Motion to Enlarge Respondent's Filing Deadline filed by Juan M. Rivera, Esquire.

05/02/2017 #3

Affidavit in Support of Motion to Enlarge Respondent's Filing Deadline filed by Juan M. Rivera, Esquire.

05/02/2017 #4

Certificate of Service filed by Juan M. Rivera, Esquire

05/04/2017 #5

MOTION To Enlarge Respondent's Filing Deadline filed by Atty. Andrew Gilbert. (SEE PAPER #10)

05/04/2017 #6

Affidavit In Support Of Motion To Enlarge Respondent's Filing Deadline filed by Atty. Andrew Gilbert.

05/04/2017 #7

Certificate of Service of paper #'s 5 & 6 filed by Atty. Andrew Gilbert.

05/12/2017 #8

Brief In Opposition To The Commonwealth's Petition Seeking Leave To Appeal A Suppression Order

Pursuant To Mass. R. Crim. P. 15 (a) (2) & G. L. c. 278 § 28 E with Affidavit, Certificate of Service and Record

Attachments filed by Atty. Andrew Gilbert.

05/15/2017 #9

Defendant-Respondent's Opposition To The Commonwealth Petitioner's Motion Under Mass. R. Crim. P. 15

(a) (2) (2016) & G. L. c. 278, § 28E Seeking Leave To Appeal A Suppression Order with Certificate of Service

filed by Atty. Juan Rivera.

05/17/2017

Under advisement. (Budd, J.).

05/18/2017 #10

ORDER: ... "Defendants filed motions to enlarge the time for filing oppositions; the motions are ALLOWED,

and the oppositions are deemed timely filed. Upon consideration, and because I conclude that the

administration of justice would not be facilitated, it is ORDERED that the application be, and hereby is,

DENIED." (Budd, J.)

05/18/2017 #11

Notice to counsel/parties, regarding paper #10 filed.

06/16/2017 #12

Letter to Clerk Doyle from Christian Alvarez saying..."Enclosed you will find the Defendant-Respondent's

Motion for Legal Fees and Costs Pursuant to Mass. R. Crim. P. 15(d)..."

06/16/2017 #13

Defendant-Respondent's MOTION for Legal Fees and Costs Pursuant to Mass. R. Crim. P. 15 (d), filed by

Juan M. Rivera.

06/16/2017 #14

Memorandum in Support of the Defendant-Respondent's Motion for Legal Fees and Costs Pursuant to Mass.

R. Crim. P. 15 (d) with Certificate of Service and and attachments.

07/11/2017 #15

Commonwealth's Opposition To Defendant's Mass. R. Crim. P. 15 (d) Motion For Legal Fees & Costs with

Certificate of Service and attachments filed by ADA Katherine McMahon.

07/14/2017 #16

Email to Eric Wetzel, Assistant Clerk from Attorney Juan Rivera saying ..."I am requesting a due date of

August 22, 2017 to file a rebuttal/response" filed. (Request for August 22, 2017 response approved by

Budd, J., parties notified via email)

08/23/2017 #17

Appellee Christian Alvarez's Response To Commonwealth's Opposition To Defendant's Mass. R. Crim. P. 15

(d) Motion For Legal Fees And Costs with Certificate of Service, Affidavit and Exhibits A & B filed by Atty.

Juan Rivera.

08/30/2017

Under advisement. (Budd, J.).

08/31/2017 #18

ORDER ALLOWING ATTORNEY FEES: ... "Upon consideration, and in accordance with Ennis, supra, the

motion for fees and the accompanying accounting are a reasonable request, and the motion for attorney's

fee is ALLOWED in the amount of $15, 686.53." (Budd, J.)

08/31/2017 #19

Notice to counsel/parties, regarding paper #18 filed.

09/20/2017 #20

Defendant-Respondent's MOTION For Additional Legal Fees And Costs Pursuant to Mass. R. Crim. P. 15 (d)

with attached Affidavit, Certificate of Service and attachment filed by Atty. Juan Rivera.

10/02/2017 #21

Commonwealth's Opposition To Defendant's Mass. R. Crim. P. 15 (d) Motion For Legal Fees & Costs with

Certificate of Service filed by ADA Katherine McMahon.

10/04/2017

Under advisement. (Budd, J.).

11/20/2017 #22

ORDER: "...It is ordered that pursuant to Mass. R. Crim. P. 15(d), the Commonwealth pay the defendant

$2,862.50 as reasonable attorney's fees related to opposing the Commonwealth's opposition to the

defendant's original motion for fees." (Budd, J.)

11/20/2017 #23

Notice to counsel/parties, regarding paper #22 filed.

As of 11/04/2019 8:00pm

No. 21IN THE

Supreme Court of the United States

___________

PEDRO VASQUEZ,

Petitioner,

MASSACHUSETTS,

Respondent.

___________

On Petition for Writ of Certiorari to the

Massachusetts Supreme Judicial Court

___________

APPENDIX H:

Dockets of Rule 15(d) cases pending after

Commonwealth v. Vasquez

___________

JUAN M. RIVERA

JUAN M. RIVERA, ESQ.

1380 Main Street, Suite 420

Springfield, MA 01103

(413) 827-9600

donclave@gmail.com

Counsel for Petitioner

March 1, 2021

Counsel of Record

APPEALS COURT

Full Cour t Panel Case

Case Docket

COMMONWEALTH vs. KIVANNY SANCHEZ

2019-P-0999

CASE HEADER

Case Status

Nature

Appellant

Brief Status

Panel

Citation

Lower Cour t

Lower Ct Judge

FAR Number

Closed: Rescript issued

Crim: drug case

Plaintiff

Status Date

10/26/2020

Entry Date

07/03/2019

SJ Number

Case Type

Criminal

Brief Due

Argued/Submitted 03/02/2020

Decision Date

08/03/2020

TC Entry Date

07/21/2017

SJC Number

Vuono, Blake, Singh, JJ.

98 Mass. App. Ct. 1107

Hampden Superior Court

David Ricciardone, J.

FAR-27825

INVOLVED PARTY

ATTORNEY APPEARANCE

Commonwealth

Plaintiff/Appellant

Blue brief & appendix filed

Katherine E. McMahon, A.D.A.

Benjamin Shorey, A.D.A.

Travis Lynch, A.D.A.

Kivanny Sanchez

Defendant/Appellee

Red brief filed

1 Ext, 88 Days

James Goodhines, Esquire

DOCUMENTS

Appellant Brief

Appellee Brief

ORAL ARGUMENTS

-00:00

DOCKET ENTRIES

Entry Date Paper

Entry Text

07/03/2019

Transcript Volume: 04/25/2018 - Hearing .

07/03/2019 #1

Lower Court Assembly of the Record Package

07/03/2019 #2

Notice of entry sent.

07/05/2019 #3

Docketing Statement filed for Commonwealth by Attorney Benjamin Shorey.

07/08/2019 #4

MOTION to consolidate filed for Commonwealth by Attorney Benjamin Shorey.

07/08/2019

RE#4: The appeals in 19-P-999 and 19-P-1000 will not be consolidated; however, the appeals will be

paired for consideration by the same panel of judges for determination. Further, to the extent that the

Commonwealth and/or the defendant believe that filing a single brief addressing both appeals would be

expedient, they may electronically file an identical brief and/or appendix in both cases, the brief and/or

appendix shall have both case captions on its cover and shall be e-filed separately in each case. *Notice.

07/29/2019 #5

Docketing Statement filed for Kivanny Sanchez by Attorney James Goodhines.

08/06/2019 #6

Notice of rejection of e-filed brief/appendix of Commonwealth as noncompliant for the reasons indicated on

the checklist: Other (Appellant's Brief was not included with Record Appendix). Accordingly, on or before

08/07/2019, you must correct the above-listed nonconformities and submit a conforming brief and/or

appendix.*Notice sent.

08/06/2019 #7

Appellant brief filed for Commonwealth by Attorney Benjamin Shorey.

08/06/2019 #8

Appendix filed for Commonwealth by Attorney Benjamin Shorey.

08/27/2019 #9

Motion of Appellee to extend date for filing brief and appendix filed for Kivanny Sanchez by Attorney James

Goodhines.

08/28/2019

RE#9: Allowed and accepted for filing. *Notice.

09/17/2019

RE#9 REVISED ACTION: As this motion was filed by the appellee, the court's docket is corrected to show

the appellee filed this motion. The motion to enlarge is allowed to 12/2/19. *Notice

11/21/2019 #10

Notice of appearance filed for Commonwealth by Attorney Travis Lynch.

11/21/2019 #11

Notice of rejection of e-filed brief/appendix of Kivanny Sanchez as noncompliant for the reasons indicated on

the checklist: 11(addendum). Accordingly, on or before 12/02/2019, you must correct the above-listed

nonconformities and submit a conforming brief and/or appendix.*Notice sent.

11/26/2019 #12

Appellee brief filed for Kivanny Sanchez by Attorney James Goodhines.

01/10/2020

Notice sent seeking information on unavailability for oral argument in March 2020

01/15/2020 #13

Response from James Goodhines, Esquire re: unavailable for oral argument March 3, 4, 6 and 11.

01/15/2020 #14

Response from Travis Lynch, A.D.A. re: unavailable for oral argument March 6.

01/31/2020 #15

Notice of 03/02/2020, 9:30 AM argument at John Adams Courthouse, Courtroom 3 (a3) sent.

01/31/2020

Response from Travis Lynch, A.D.A. re: will appear and argue on 03/02/2020.

02/07/2020

Response from James Goodhines, Esquire re: will appear and argue on 03/02/2020.

03/02/2020

Oral argument held. (Vuono, J., Blake, J., Singh, J.).

07/15/2020

ORDER: The one hundred thirty day guideline for the above-captioned case is waived by order of the Court.

(Vuono, J., Blake, J., Singh, J.). *Notice.

08/03/2020 #16

Decision: Rule 23.0 Orders allowing motions to suppress reversed. (Vuono, Blake, Singh, JJ.). *Notice.

08/31/2020

RESCRIPT to Trial Court.

09/09/2020

FAR-27825 opened on MOTION to file FAR application late filed for Kivanny Sanchez by Attorney John

Thompson.

09/10/2020 #17

Motion for misc relief (Motion for Order Recalling Mandate) filed for Kivanny Sanchez by Attorney John

Thompson.

09/17/2020

RE#17: Allowed. Due to a filing error, the pending application for further appellate review, FAR-27825, was

not noted on the Appeals Court docket, and the rescript issued to the trial court in error. Therefore, the

rescript issued on 08/31/2020 is hereby recalled. *Notice/Attest/Ricciardone, J.

10/26/2020

FAR DENIED (on 10/23/2020).

10/26/2020

RESCRIPT to Trial Court.

11/24/2020 #18

Motion for misc relief (Motion to enlarge time to fine Rule 15(d) motion) filed for Kivanny Sanchez by

Attorney James Goodhines.

11/25/2020

RE#18: Allowed to 12/07/2020. Any response from the Commonwealth is due within 7 days of the filing of

the defendant's motion. (Vuono, J., Singh, J. & Blake, J.) *Notice

12/07/2020 #19

Motion for Attorney's fees filed for Kivanny Sanchez by Attorney James Goodhines.

12/10/2020 #20

RESPONSE filed for Commonwealth by Attorney Travis Lynch.

12/14/2020 #21

ORDER: The defendant's motion for fees is denied without prejudice to

renewal, on or before 12/21/2020 with supporting documentation demonstrating that the request for fees is

in the nature of reimbursement, pursuant to Commonwealth v. Vasquez, 485 Mass. 405 (2020).

*Notice/Attest.

12/21/2020 #22

Motion for misc relief (Reply Memo in Support of Rule 15(d)) filed for Kivanny Sanchez by Attorney James

Goodhines.

12/23/2020 #23

Motion for Attorney's fees filed for Kivanny Sanchez by Attorney James Goodhines.

12/23/2020 #24

Motion for misc relief (Supplemental response) filed for Commonwealth by Attorney Travis Lynch.

12/28/2020 #25

RESPONSE to paper #24 filed for Kivanny Sanchez by Attorney James Goodhines.

12/30/2020 #26

ORDER: (RE#23) After review of the defendant's motion for attorney's fees, the Commonwealth's response,

the defendant's reply to the response, the Commonwealth's supplemental response, and the defendant's

response thereto, the motion is denied. The defendant has requested fees based on an hourly rate, but has

supported his request with a fee agreement reflecting a flat fee for services rendered. Moreover, the amount

of the fee has been redacted. The defendant has failed to establish that the amount of his fee request is in

accord with Commonwealth v. Vasquez, 485 Mass. 405, 411 (2020) (Rule 15(d) "is 'a rule of

reimbursement,' and nothing more"). (Vuono, Blake, & Singh, JJ.). *Notice/Attest.

01/29/2021 #27

Notice of appeal filed for Kivanny Sanchez by Attorney James Goodhines.

02/02/2021 #28

MOTION to strike filed for Commonwealth by Attorney Travis Lynch.

02/08/2021 #29

RESPONSE to paper #28 filed for Kivanny Sanchez by Attorney James Goodhines.

02/18/2021

RE#28: The defendant has filed a notice of appeal to the Supreme Judicial Court seeking review of our

12/30/2021 order denying his application for attorney's fees. The procedures for obtaining review of an

order of the Appeals Court by the Supreme Judicial Court are set forth in Mass. R.A.P. 27.1. Absent an order

from the Supreme Judicial Court to the contrary, the Appeals Court will take no action on the within notice of

appeal. (Vuono, Blake, & Singh, JJ.). *Notice.

As of 02/18/2021 12:15pm

SUPREME JUDICIAL COURT

for the Commonwealth

Case Docket

COMMONWEALTH vs. KIVANNY SANCHEZ

FAR-27825

CASE HEADER

Case Status

Active: Case Filed

Nature

Crim: drug case

Appeals Ct Number 2019-P-0999

Appellant

Plaintiff

Citation

486 Mass. 1107

Full Ct Number

Lower Cour t

Hampden Superior Court

Status Date

Entry Date

Response Date

Applicant

Case Type

TC Number

Lower Ct Judge

11/20/2020

09/09/2020

10/02/2020

INVOLVED PARTY

ATTORNEY APPEARANCE

Commonwealth

Plaintiff/Appellant

Katherine E. McMahon, A.D.A.

Benjamin Shorey, A.D.A.

Travis Lynch, A.D.A.

Kivanny Sanchez

Defendant/Appellee

James Goodhines, Esquire

John M. Thompson, Esquire

Linda J. Thompson, Esquire

Criminal

David Ricciardone, J.

DOCKET ENTRIES

Entry Date Paper

Entry Text

09/09/2020

Docket opened.

09/09/2020 #1

MOTION to file FAR application late filed for Kivanny Sanchez by Attorney John Thompson. (The motion is

referred to the quorum. The application may be filed on or before September 18, 2020, and the motion to

enlarge time shall be considered along with the application.)

09/17/2020 #2

NOTICE: Due to the court's closure on September 18, 2020, the time for filing the application is enlarged to

September 21, 2020.

09/21/2020 #3

FAR APPLICATION filed for Kivanny Sanchez by Attorney John Thompson.

09/21/2020 #4

MOTION to non-conforming FAR application, filed for Kivanny Sanchez by Attorney John Thompson.

(Referred to the Quorum)

09/29/2020 #5

RESPONSE to FAR application filed for Commonwealth by Attorney Travis Lynch.

10/23/2020 #6

DENIAL of FAR application.

11/20/2020 #7

MOTION for extension to file a motion for reimbursement, filed for Kivanny Sanchez by Attorney John

Thompson. (Allowed to December 15, 2020.)

12/15/2020 #8

MOTION for attorney's fees filed for Kivanny Sanchez by Attorney John Thompson.

12/15/2020 #9

Memorandum filed for Kivanny Sanchez by Attorney John Thompson.

01/14/2021 #10

Response to Motion for attorney's fees (reimbursement), filed for Commonwealth by Attorney Travis Lynch.

02/12/2021 #11

Reply to Commonwealth's Response to Motion for Reimbursement, filed for Kivanny Sanchez by Attorney

John Thompson.

02/12/2021 #12

Supplemental Motion for Attorney's Fees, filed for Kivanny Sanchez by Attorney John Thompson.

As of 02/19/2021 1:20pm

SUPREME JUDICIAL COURT

for Suffolk County

Case Docket

COMMONWEALTH v. KIVANNY SANCHEZ and KAYLA

RODRIGUEZ

SJ-2018-0412

CASE HEADER

Case Status

Nature

Sub-Nature

TC Ruling

SJ Ruling

Pet Role Below

Lower Cour t

Interlocutory appeal allowed

Lv for interloc appeal

Mot to Suppress

Motion allowed

Plaintiff in lower court

Hampden Superior Court

Status Date

Entry Date

Single Justice

TC Ruling Date

TC Number

Full Ct Number

Lower Ct Judge

10/30/2018

09/12/2018

Kafker, J.

07/26/2018

David Ricciardone, J.

INVOLVED PARTY

ATTORNEY APPEARANCE

Commonwealth

Plaintiff/Petitioner

Benjamin Shorey, Assistant District Attorney

Kivanny Sanchez

Defendant/Respondent

James Goodhines, Esquire

Kayla Rodriguez

Defendant/Respondent

Joan Dietz, Esquire

DOCKET ENTRIES

Entry Date Paper

Entry Text

09/12/2018

Case entered.

09/12/2018 #1

Commonwealth's Mass. R. Crim. P. 15 Application For Leave To Appeal An Order Allowing The Defendants'

Motions To Suppress Evidence with Certificate of Service and Appendix filed by ADA Benjamin Shorey.

10/18/2018 #2

Defendant's Motion to Enlarge Time for Filing His Opposition to Commonwealth's Mass R. Crim. P. 15

Application for Leave to Appeal an Order Allowing the Defendant's Motions to Suppress Evidence filed by

Attorney James R. Goodhines.

10/18/2018 #3

Defendant's Opposition to Commonwealth's Mass. R. Cirm. P. 15 Application for Leave to Appeal an Order

Allowing The Defendant's Motions to Suppress Evidence filed by Attorney James R. Goodhines.

10/18/2018 #4

Memorandum of Law In Support of Defendant's Opposition to Commonwealth's Mass. R. Crim. P. 15

Application for Leave to Appeal an Order Allowing the Defendant's Motions to Suppress Evidence filed by

Attorney James R. Goodhines, with Certificate of Service.

10/18/2018 #5

Affidavit of counsel In Support of Defendant's Opposition to Commonwealth's Mass. R. Crim. P. 15

Application for Leave to Appeal an Order Allowing the Defendant's Motions to Suppress Evidence filed by

Attorney James R. Goodhines, with attached Appendix.

10/25/2018

Under advisement. (Kafker, J.).

10/30/2018 #6

ORDER: Interlocutory appeal allowed to Appeals Court. (Kafker, J.)

10/30/2018 #7

Notice to counsel/parties, regarding paper #6 filed.

As of 11/04/2019 8:00pm

APPEALS COURT

Full Cour t Panel Case

Case Docket

COMMONWEALTH vs. RICHARD SANTOS, JR.

2019-P-1198

CASE HEADER

Case Status

Nature

Appellant

Brief Status

Panel

Citation

Lower Cour t

Lower Ct Judge

FAR Number

Petition for reconsideration denied

Crime: Possession of Gun

Plaintiff

Status Date

12/31/2020

Entry Date

08/14/2019

SJ Number

Case Type

Criminal

Brief Due

Argued/Submitted 04/08/2020

Decision Date

06/22/2020

TC Entry Date

03/21/2018

SJC Number

Green, C.J., Henry, Sacks, JJ.

97 Mass. App. Ct. 719

Hampden Superior Court

Karen L. Goodwin, J.

FAR-27672

INVOLVED PARTY

ATTORNEY APPEARANCE

Commonwealth

Plaintiff/Appellant

Blue brief & appendix filed

Katherine E. McMahon, A.D.A.

Travis Lynch, A.D.A.

Richard Santos, Jr.

Defendant/Appellee

Red brief filed

1 Enl, 25 Days

Joe A. Smith III, Esquire

John M. Thompson, Esquire

Linda J. Thompson, Esquire

DOCUMENTS

Appellant Brief

Appellee Brief

DOCKET ENTRIES

Entry Date Paper

Entry Text

08/14/2019

Transcript Volume: 11/16/2018 - Motion to Suppress .

08/14/2019 #1

Lower Court Assembly of the Record Package

08/14/2019 #2

Notice of entry sent.

08/16/2019 #3

Notice of appearance filed for Commonwealth by Attorney Travis Lynch.

08/16/2019 #4

Docketing Statement filed for Commonwealth by Attorney Travis Lynch.

08/29/2019 #5

Notice of appearance filed for Richard Santos, Jr. by Attorney John Thompson.

09/19/2019 #6

Appellant brief filed for Commonwealth by Attorney Travis Lynch.

09/19/2019 #7

Appendix filed for Commonwealth by Attorney Travis Lynch.

10/01/2019 #8

MOTION of Appellee to extend brief due date filed for Richard Santos, Jr. by Attorney John Thompson.

10/01/2019

RE#8: Allowed to 11/15/2019. Notice sent.

11/12/2019 #9

Appellee brief filed for Richard Santos, Jr. by Attorney John Thompson.

01/10/2020

Notice sent seeking information on unavailability for oral argument in March 2020

01/13/2020

Response from John M. Thompson, Esquire re: available all dates for oral argument..

01/15/2020 #10

Response from Travis Lynch, A.D.A. re: unavailable for oral argument March 6.

02/10/2020

Notice sent seeking information on unavailability for oral argument in April 2020

02/10/2020

Response from Travis Lynch, A.D.A. re: available all dates for oral argument..

02/14/2020

Response from John M. Thompson, Esquire re: available all dates for oral argument..

02/27/2020 #11

Notice of 04/02/2020, 9:30 AM argument at John Adams Courthouse, Courtroom 4 (a4) sent.

02/27/2020

Response from Travis Lynch, A.D.A. re: will appear and argue on 04/02/2020.

02/28/2020 #12

REVISED Notice of (date change) 04/06/2020, 9:30 AM argument at John Adams Courthouse, Courtroom 3

(a3) sent.

02/28/2020

Response from Travis Lynch, A.D.A. re: will appear and argue on 04/06/2020.

02/28/2020

Response from John M. Thompson, Esquire re: will appear and argue on 04/06/2020.

03/02/2020 #13

REVISED Notice of (date change) 04/08/2020, 9:30 AM argument at John Adams Courthouse, Courtroom 4

(a4) sent.

03/02/2020

REVISED Response from John M. Thompson, Esquire re: will appear and argue on 04/08/2020.

03/03/2020

REVISED Response from Travis Lynch, A.D.A. re: will appear and argue on 04/08/2020.

03/18/2020 #14

ORDER: In light of public health concerns arising from the COVID-19 (coronavirus) pandemic and the State

of Emergency declared by the Governor, it is hereby ordered that all cases scheduled for oral argument

during April 2020 shall be deemed submitted on the briefs on file, without any further argument unless

otherwise ordered by the Court in a particular case. By the Court (Mark V. Green, Chief Justice) *Notice

04/08/2020

Submitted on brief. (Green, C.J., Henry, J., Sacks, J.).

06/22/2020 #15

Decision: Full Opinion (Henry, J.). Order allowing motion to suppress affirmed. *Notice.

07/17/2020

FAR-27672 opened on FAR APPLICATION filed for Commonwealth by Attorney Travis Lynch.

10/01/2020

FAR DENIED (on 10/01/2020).

10/05/2020

RESCRIPT to Trial Court.

10/29/2020 #16

Motion for Attorney's fees filed for Richard Santos, Jr. by Attorney John Thompson.

10/29/2020 #17

Memorandum in support filed for Richard Santos, Jr. by Attorney John Thompson.

11/13/2020 #18

RESPONSE filed for Commonwealth by Attorney Travis Lynch.

11/27/2020 #19

Reply Memorandum in support of Motion for Attorney's fees filed for Richard Santos, Jr. by Attorney John

Thompson.

12/16/2020 #20

ORDER: (RE#16) Relative to the defendant's motion for an award of appellate attorney's fees, in light of the

holding of the Supreme Judicial Court in Commonwealth v. Vasquez, 485 Mass. 405, 411 (2020), the

defendant shall on or before December 27, 2020, file with the court a copy of his fee agreement with

counsel for this appeal. (Green, C.J., Henry, J., Sacks, J.). *Notice

12/28/2020 #21

MOTION to reconsider filed for Richard Santos, Jr. by Attorney John Thompson.

12/31/2020

RE#21: The defendant's motion for reconsideration of our 12/16/2020 order to file appellee's representation

agreement for interlocutory appeal is denied. The circumstances here appear similar to the recent case of

Commonwealth v. Sanchez, 18-P-574, where client confidentiality concerns were no obstacle to counsel's

voluntary filing of the fee agreement with this court. The defendant shall, on or before 01/05/2021, file with

the court a copy of his fee agreement with counsel for this appeal. (Green, C.J., Henry, & Sacks, JJ.). *Notice.

01/05/2021 #22

MOTION to reconsider filed for Richard Santos, Jr. by Attorney John Thompson.

01/05/2021

RE#22: Denied. (Green, C.J., Henry, & Sacks, JJ.) *Notice.

01/08/2021 #23

Motion to enlarge time to file representation agreement filed for Richard Santos, Jr. by Attorney John

Thompson.

01/08/2021

RE#23: Allowed to 1/11/21. (Green, C.J., Henry, & Sacks, JJ.) *Notice.

01/11/2021 #24

Representation Agreement and memorandum filed for Richard Santos, Jr. by Attorney John Thompson.

01/12/2021 #25

Replacement Representation Agreement and memorandum filed for Richard Santos, Jr. by Attorney John

Thompson.

01/12/2021 #26

Motion for Attorney's fees filed for Richard Santos, Jr. by Attorney John Thompson.

01/19/2021 #27

ORDER: Following extension to January 11, 2021, of the deadline for

submission of counsel's representation agreement with the defendant, and assurances by counsel on

January 12, 2021, that the agreement was inadvertently omitted from their filing on January 11, 2021, and

would be supplied shortly, the agreement has not yet been submitted, and counsel has, since January 12,

2021, failed to respond to further inquiries from the Court. If the representation agreement is not filed with

the Court by or before 5:00 p.m. on January 21, 2021, the request for attorneys fees will be denied. (Green,

C.J., Henry, & Sacks, JJ.).*Notice/Attest

01/19/2021 #28

Second Replacement Representation Agreement and memorandum filed for Richard Santos, Jr. by Attorney

John Thompson.

01/20/2021

ORDER: Relative to the defendant's motion for an award of appellate attorney's fees, any response by the

Commonwealth to the defendant's recent submissions must be filed on or before January 27 at 5 p.m.

(Green, C.J., Henry, & Sacks, JJ.). *Notice/Attest.

01/27/2021 #29

RESPONSE court order dated 1/20/21 filed for Commonwealth by Attorney Travis Lynch.

As of 02/24/2021 4:15pm

SUPREME JUDICIAL COURT

for Suffolk County

Case Docket

COMMONWEALTH v. RICHARD SANTOS

SJ-2019-0017

CASE HEADER

Case Status

Nature

Sub-Nature

TC Ruling

SJ Ruling

Pet Role Below

Lower Cour t

Interlocutory appeal allowed

Lv for interloc appeal

Mot to Suppress

Mot to Suppress allowed

Plaintiff in lower court

Hampden Superior Court

Status Date

Entry Date

Single Justice

TC Ruling Date

TC Number

Full Ct Number

Lower Ct Judge

02/14/2019

01/16/2019

Cypher, J.

11/29/2018

Karen L. Goodwin, J.

INVOLVED PARTY

ATTORNEY APPEARANCE

Commonwealth

Plaintiff/Petitioner

Travis Lynch, Assistant District Attorney

Richard Santos

Defendant/Respondent

Joe A. Smith III, Esquire

John M. Thompson, Esquire

DOCKET ENTRIES

Entry Date Paper

Entry Text

01/16/2019

Case entered.

01/16/2019 #1

The Commonwealth's Mass. R. Crim. P. 15 (a) (2) (2017) & G. L. c. 278, § 28E Petition Seeking Leave To

Appeal An Order Allowing The Defendant's Motion To Suppress Evidence with Certificate of Service and

Appendix filed by ADA Travis Lynch.

01/16/2019 #2

Affidavit Of Timely Mailing filed by ADA Travis Lynch.

02/04/2019 #3

Appearance Of Counsel For Respondent Richard Santos with Certificate of Service filed by Atty. John

Thompson.

02/04/2019 #4

Respondent's Opposition To Petition Seeking Leave To Appeal Order Allowing Defendant's Motion To

Suppress with Certificate of Service filed by Atty. John Thompson.

02/14/2019

Under advisement. (Cypher, J.).

02/14/2019 #5

ORDER: Interlocutory appeal allowed to Appeals Court. (Cypher, J.)

02/14/2019 #6

Notice to counsel/parties, regarding paper #5 filed.

As of 11/04/2019 8:00pm

No. 21IN THE

Supreme Court of the United States

___________

PEDRO VASQUEZ,

Petitioner,

MASSACHUSETTS,

Respondent.

___________

On Petition for Writ of Certiorari to the

Massachusetts Supreme Judicial Court

___________

APPENDIX I ("EYE")

Additional Documents sent to Justice Lenk

pursuant to her order at the June 29, 2020

telephonic hearing in Commonwealth v.

Vasquez, SJ-2020-M024

___________

JUAN M. RIVERA

JUAN M. RIVERA, ESQ.

1380 Main Street, Suite 420

Springfield, MA 01103

(413) 827-9600

donclave@gmail.com

Counsel for Petitioner

March 1, 2021

Counsel of Record

I "EYE" 1

I ("EYE") 2

I ("EYE") 3

I ("EYE") 4

I ("EYE") 5

I ("EYE") 6

I ("EYE") 7

I ("EYE") 8

I ("EYE") 9

I ("EYE") 10

I ("EYE") 11

I ("EYE") 12

I ("EYE") 13

I ("EYE") 14

I ("EYE") 15

I ("EYE") 16

I ("EYE") 17

I ("EYE") 18

I ("EYE") 19

I ("EYE") 20

I ("EYE") 21

I ("EYE") 22

I ("EYE") 23

No. 21IN THE

Supreme Court of the United States

___________

PEDRO VASQUEZ,

Petitioner,

MASSACHUSETTS,

Respondent.

___________

On Petition for Writ of Certiorari to the

Massachusetts Supreme Judicial Court

___________

APPENDIX J:

Email to CPCS from Atty. Rivera

regarding a position on Commonwealth v.

Vasquez payment matter

___________

JUAN M. RIVERA

JUAN M. RIVERA, ESQ.

1380 Main Street, Suite 420

Springfield, MA 01103

(413) 827-9600

donclave@gmail.com

Counsel for Petitioner

March 1, 2021

Counsel of Record

2/28/2021

Gmall - Request for Information Re: CPCS position on SJ-12562, Comm. v. Vasquez

�d Gmail·

Juan Rivera <donclave@gmail.com>

Request for Information Re: CPCS position on SJ-12562, Comm. v. Vasquez

Juan Rivera <donclave@gmail.com>

To: welez@publiccounsel.net

Bee: donclave@gmail.com

Mon, Aug 31, 2020 at 11:59 AM

Dear Atty. Velez,

I hope that you and your family are safe and well during these unprecedented times and I thank you for the important

work that you do for our clients.

I just spoke to Atty. Dembitzer this morning to see what, if any, position, CPCS will be taking on the matter where I

represented Mr. Vasquez on SJ-2017-412 pursuant to a private fee agreement which relied on R. 15(d) and the statutory

appropriation statute designated for that purpose, I.e. Ste. 2019, ch. 41, sec. 2 (and its prior iterations). My motion for

fees and costs was denied, as you know by now.

It is my position that the new requirement that defendants, particularfy indigent defendants, advance money/property in

order to secure their right to choice of counsel violates the Sixth and Fourteenth Amendment's equal protection to the

right to the choice of counsel applied in R. 15(d), the statute, and the Courts' prior applications of the rule that did not

require such an advance.

I believe the right to choice of counsel, as articulated in Luis v. United States, 136 s. Ct. 1083, 1090-91 (2016), is created

by Rule 15(d) and statutory appropriation. I believe that the advance payment requirement unfairly impacts poor

defendants and primarily persons of color, based on who the indigent defendants in Hampden County are. The Poor

cannot M_but their right to choose their own counsel while the rich, who can advance money, can take advantage of that

right to equalize the resources of the Defendant with the Commonwealth, to paraphrase the Court's prior opinions

regarding the rule. (Goncalves, Phinney, Murphy, Lopez, etc.)

I also believe that the Court overfooked the obligation created in the private fee agreement and impaired the contract the

client and I made with its interpretation of Rule 15(d) and the appropriation statute. Fisk v. Jefferson Police Jury, 116 U.S.

131, 133-34 (1885), found an impairment in a contract where a prosecutor sought fees for compensation from the

municipality based on a state statute. The Court stated then:

But, after the services have been [****5] rendered, under a law, resolution, or ordinance which fixes the rate of

compensation, there arises an implied contract to pay for those services at that rate. This contract is a completed

contract. Its obligation is perfect, and rests on the remedies which the law then gives for its enforcement. The vice

of the argument of the Supreme Court of Louisiana is in limiting the protecting power of the constitutional

provision against impairing the obligation of contracts to express contracts, to specific agreements, and in rejecting

that much larger class in which one party having delivered property, paid money, rendered service, or suffered loss

at the request of or for the use of another, the law completes the contract by implying an obligation on the part of

the latter to make compensation. This obligation can no more be impaired by a law of the State than that arising

on a promissory note.

When I Macknowledged· at the hearing before Justice Lenk that the defendant would not be paying, etc., it was with the

understanding that was because the prosecutor and AOT C would be paying on his behalf, as they had in the past. Not

only that. but they paid me directJy, and not the Client.

Mr. Vasquez made a contract with the understanding that his choice of counsel for SJ-2017-412 would be respected and

that, furthermore, his counsel would be paid. While the Court absolves him of payment. it does so by impairing the

contract and disparaging the agreement as "Illusory" and Mnot bona-fide.M I resent any implication of wrongdoing.

Especially since the pro-bona work I performed on SJ-2017-417 and SJ-2018-0070 was completely overlooked as

though worthless.

After speaking to Mr. Vasquez on Zoom while at the jail, and explaining to him the opinion, including that he was absolved

to pay because of how the court views the contract, he still wished to have me continue to press this matter. He doesn't

appreciate that the law doesn't seem to apply fairly to him, nor to me, on this issue and in addition to the issues he will be

pursuing on appeal with his court-appointed appellate attorney, Stan Goldman, after trial. He is concerned that future

poor defendant's will now be denied this ability to choose their preferred counsel.

https://ma�.google.com/maiVu/0?ik=b23rdbd571 &view=pt&search=all&permmsgid=msg-I%3A1676557245612859675&simpl=msg-4%3A167655724 56...

1/2

2'2B.·'2021

Gmail - Request ro, Information Re: CPCS pos•11on on SJ-12�2. Cor,rr. v. Vc1:,q·Jez

I am concerned, finally, about the tension that seems to exist between the choice of counsel that the Sixth .A.mendm'?r.l

and FourteenU, Amendment provide, and the agency's understandable goal to instill confidence in 'he quality of public

representation. But to do so by denying the dignity of choice of counsel for indigent defendants appears to be anti h,:;'ical

to the humanity wo profess to afford to each and every one of our indigent clients, including the right to make and keep

promises.

The SJC has allowed me until 9/11/2020 lo respond with a R. 27 requesL I hope to hear back from you before Ulen. A;,

of this point, my understanding is that CPCS has no position because it is a private matter. Please let me know ,f that ,s

the case.

Respectfully yours,

Juan M. Rivera, Esq.

Attorney At Law

1380 Main Street. Suite 420

Springfield, PJ.A 01103

(413) 827-9600

www.Ri'JE:ra Lege I.com

Sent from my iPad

Gmall - Request for lnfonnatlon Re: CPCS position on SJ-12562, Comm. v. Vasquez

2/28/2021

fi'--Jd Gmail

Juan Rivera <donclave@gmail.com>

Request for Information Re: CPCS position on SJ-12562, Comm. v. Vasquez

Vanessa Velez <welez@publlccounsel.net>

To: Juan Rivera <donclave@gmail.com>

Tue, Sep 1, 2020 at 9:40 AM

Dear Attorney Ri,·cra,

I forwarded your rc9ucst to our General Counsel, Lisa Hewitt. She will be reviewing it today.

Best,,.

V:inCS).:t \'ekz

Deput y Chief Counsel

Private C,ounscl Division

CPCS

44 Bromfield Street

Boston, MA

617 910-5773

welez@publiccounsel.net

[Quoted text hidden]

https://mail.google.com/maiVu/0?ik=b23fdbd571&view=pt&search=all&pennmsgid=msg-f%3A1676639059992204978&simpl=msg-f%3A16766390599...

1/1

2/28/2021

Gmail - Request for Information Re: CPCS position on SJ-12562, Comm. v. Vasquez

..,

�G Gmail

Juan Rivera <donclave@gmail.com>

Request for Information Re: CPCS position on SJ-12562, Comm. v. Vasquez

Vanessa Velez <welez@publiccounsel.net>

Wed, Sep 2, 2020 at 2:50 PM

To: Juan Rivera <donclave@gmail.com>

Cc: Lisa Hewitt <lhewitt@publiccounsel.net>, Elizabeth Dembitzer <edembitzer@publiccounsel.net>

Dear Arrorncy Rin:r.i.,

Thank you for your email. We h:i,·e looked ar the case :ind the issues that you niscd :ind concluded that CPCS will not be eking :i position

un your morion ro reconsider in the Co1111110111rr'1flh 1: [,;;1.rq11� case.

Bcsr, ,·.

Dcput�· Chief Counsel

Private C,oumcl Divi�i1Jn

CPCS

44 Bromfield Street

Boston, MA

617 910-5773

vvelez@publiccounsel.net

From: Juan Rivera [mailto:donclave@gmail.com]

Sent: Monday, August 31, 2020 12:00 PM

To: Vanessa Velez

Subject: Request for Information Re: CPCS position on SJ-12562, Comm. v. Vasquez

Dear Atty. Velez,

I hope that you and your family are safe and well during those unprecedented limos and I thank you for tho Important

work that you do for our clients.

I jugt spoke to Atty. Dembitzer this morning to see what, if any, positlon, CPCS will be taking on the matter where I

represented Mr. Vasquez on SJ.2017-412 pursuant lo a private fee agreement which relied on R. 15(d) nnd tho statutory

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1'J

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.