Petition for Writ of Certiorari — Abramo v. Massachusetts
Supreme Court brief1993
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In the
Supreme Court of the United States
OcTOBER TERM, 1992
RALPH J. ABRAMO, JR.,
Petitioner,
r
COMMONWEALTH OF MASSACHUSETTS,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE APPEALS COURT FOR THI
COMMONWEALTH OF MASSACHUSETTS
PETITION FOR WRIT OF CERTIORARI
BRENDAN J. PERRY,
Counsel of Record
CHRISTOPHER M. PERRY,
TERANCE P. PERRY,
BRENDAN J. PERRY & ASSOCIATES, P.C
95 Elm Street,
P.O. Box 6938,
Holliston, Massachusetts 01746
(S08) 429-2000
April 30, 1993
BATEMAN & SLADE. IN
No:
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1992
RALPH J. ABRAMO, JR.
PETITIONER,
Vv.
COMMONWEALTH OF MASSACHUSETTS,
RESPONDENT.
PETITION FOR WRIT OF CERTIORARI
TO THE APPEALS COURT FOR THE
COMMONWEALTH OF MASSACHUSETTS
PETITION FOR WRIT OF CERTIORARI
UESTIONS PRES
I. ARE THE EQUAL PROTECTION AND DUE
PROCESS CLAUSES OF THE FOURTEENTH
AMENDMENT OF THE UNITED STATES
CONSTITUTION VIOLATED WHEN IDENT-
ICALLY SITUATED CRIMINAL DEFENDANTS
ARE SUBJECTED TO DISPARATE CEILINGS
OF INCARCERATION PREDICATED UPON
THEIR "APPEARANCE" OR THE DEPARTMENT
OF THE STATE TRIAL COURT WHICH HAS
OBTAINED JURISDICTION?
II. ARE THE EQUAL PROTECTION AND DUE
PROCESS CLAUSES OF THE FOURTEENTH
AMENDMENT OF THE UNITED STATES CON-
STITUTION VIOLATED WHEN A_ STATE
COURT CRIMINAL DEFENDANT IS ORDERED
TO EXECUTE A FIVE YEAR SENTENCE OF
INCARCERATION IN A HOUSE OF
CORRECTION, PURSUANT TO ONE STATE
STATUTE, WHEN TWO OTHER STATE
STATUTES PROHIBIT ANY COURT OF SUCH
ii
Iii.
IV.
QUESTIONS PRESENTED FOR REVIEW
STATE FROM ORDERING A DEFENDANT TO
EXECUTE A SENTENCE OF INCARCERATION
IN A HOUSE OF CORRECTION WHICH
EXCEEDS TWO AND ONE HALF YEARS IN
DURATION?
DOES THE VOLUNTARY DISMISSAL OF AN
INITIAL CRIMINAL PROSECUTION
PRECLUDE A STATE FROM VIABLY
CONTENDING THAT ANY PUTATIVE ACT OF
WAIVER WITHIN SUCH PROCEEDING
REGULATES THE CONSTITUTIONAL RIGHTS
WHICH A DEFENDANT MAY ASSERT IN A
SECOND CRIMINAL PROSECUTION
SUBSEQUENTLY COMMENCED AGAINST HIM?
IF STATUTES RESULT IN AN OVERTLY
DISCRIMINATORY CLASSIFICATION IS ONE
WHO HAS BEEN INJURED THEREBY
REQUIRED TO DEMONSTRATE THAT THE
DISCRIMINATION IS PURPOSEFUL OR
INTENTIONAL?
iii
—_ a — ‘ini
TABLE OF CONTENTS
QUESTIONS PRESENTED
FOR REVIEW
TABLE OF CONTENTS
TABLE OF AUTHORITIES
UNOFFICIAL/OFFICIAL
REPORTS* OF OPINIONS
JURISDICTIONAL STATEMENT
APPLICABLE CONSTITUTIONAL
PROVISIONS AND STATUTES
STATEMENT OF THE CASE
STAGE OF PRIOR PROCEEDINGS
AT WHICH FEDERAL QUESTIONS
WERE RAISED AND MANNER IN
WHICH THEY WERE DETERMINED
BY TRIAL AND APPELLATE COURTS
ARGUMENT IN SUPPORT OF ALLOWANCE
OF WRIT
CONCLUSION
APPENDIX
ii
vil
30
OF 0
Cases:
Abramo v. Worcester Division of
the Superior Court, Etc.,
_.. U.S. ___, 115 L.Ed. 2d 1015,
111 S.Ct. 2846 (1991) ‘
American Motorist Ins. Co. v.
Starnes,
425 U.S. 637, 48 L.Ed. 2d 263,
96 S. Ct. 1800 (1976) 28, 29
Armour & Co. v. North Dakota,
240 U.S. 510, 60 L.Ed. 771,
36 S. Ct. 440 (1916) 12
Bain Peanut Co. v. Pinson,
113 U.S. 499, 75 L.Ed. 482,
51 S. Ct. 228 (1931) 26
Barbier v. Connolly, 113 U.S.
27, 28 L.Ed. 923, 5 S. Ct.
375 (1885) 11, 15, 19
Bolling v. Sharp, 347 U.S.
497, 98 L.Ed. 884, 74
S. Ct. 693 (1954) 17
Cincinnati Street Railway Company
v. Snell, 193 U.S. 30, 48 L.Ed.
604, 24 S. Ct. 319 (1904) 17
Coffin v. United States, 156
U.S. 432, 39 L.Ed. 481, 15
S. Ct. 394 (1895) 16
D.H. Overmyer Co. v. Frick
Co., 405 U.S. 174, 31 L.Ed. 2d
124, 92 S. Ct. 775 (1972) 23
Cases:
Dunn v. Blumstein, 405 U.S.
320, 31 Le BG. 24 274, 92 8S. CE.
995 (1972) 15, 17
Eisenstadt v. Baird, 405 U.S.
438, 31 L.Ed. 2d 349, 92 S. Ct.
1029 (1972) 17
Ex Parte Nielson, 131 U.S. 176,
33 L.Ed. 118, 9 S. Ct. 672 (1889) 27
Ex Parte Royal, 117 U.S. 241, 29
L.Ed. 868, 6 S. Ct. 734 (1886) 27
Graham v. Weeks, 138 U.S. 461,
34 be BG. 1051, 11 S&S. Ct. 363
(1891) 27
Hill v. Texas, 316 U.S. 400, 86
L.Ed. 1559, 62 S. Ct. 1159 (1942) 27
Ingraham v. Wright, 430 U.S.
651, 51 L.Ed. 2¢ 711, 97
S. Ct. 1401 (1977) 12
Johnson v. Zerbst, 304 U.S.
458, 82 L.Ed. 1461, 58 S. Ct.
1019 (1938) 23, 24
Jones v. Cunningham, 371 U.S.
236, 9 L.Ed. 2d 285, 83
S.Ct. 373 (1963) 6
Loving v. Virginia, 388 U.S.
1, 18 L.Ed. 2G 1010, 87 S. Ct.
1817 (1967) 18
Magoun v. Illinois Trust & Sav.
Bank, 170 U.S. 238, 42 L.Ed.
1037, 18 S. Ct. 594 (1898) 13
vi
Cases
Meachum v. Fano, 427 U.S. 215,
49 L.Ed. 2d 451, 96 S. Ct. 2532
(1976) 12
Meyer v. Nebraska, 262 U.S. 390,
67 L.Ed. 1042, 43 S. Ct. 625
(1923) 12
Mills, Petitioner, 135 U.S. 263,
L.Ed. 107, (1890) 27
Missouri, Kansas & Texas Ry. v.
Cade, 233 U.S. 642, 58 L.Ed.
1135, 34 S. Ct. 678 (1914) 14
Mobile v. Bolden, 446 U.S. 55,
64 L.Ed. 2d 47,
100 S. Ct. 1490 (1980) 28
Mooney v. Holohan, 294 U.S. 103,
79 L.Ed. 791, 55 S. Ct. 340 (1935) 24
Morrissey v. Brewer, 408 U.S.
471, 33 L.Ed. 2d 484, 92 S. Ct.
2593 (1972) 12
NAACP v. Button, 371 U.S. 415, 9
L.Ed. 2d 405, 83 S. Ct. 328 (1963) 15
New Orleans v. Dukes, 427 U.S. 297,
49 L.Ed. 2d 511, 96 S. Ct. 2513
(1976) 18
Ohio Bell Telephone Co. v.
Public Utilities Commission,
301 U.S. 292, 81 L.Ed. i093,
507 S. Ct. 724 (1937) 24
Plyler v. Doe, 457 U.S.
202, 72 L.Ed. 2d 786, 102
S$. Ct. 2382 (1982) aa, Ad, “20
vii
Cases
Pollard v. United States,
392 U.S. 354, i Le BA. 24 393,
77 S. Ct. 481 (1957)
Rewis v. United States, 401 U.S.
808, 28 L.Ed. 2d 493, 91 S. Ct.
1056 (1971)
Rochin v. California, 342
U.S. 165, 96 L.Ed. 183,
72 S. Ct. 205 (1952)
Southern R. Co. v. King, 217
U.S. 524, 54 L.Ed. 868,
30 S. Ct. 594 (1910)
Strauder v. West Virginia, 100
U.S. 303, 25 L.Ed. 664
(1880)
Taylor v. Kentucky, 436 U.S.
478, 56 L.Ed. 2d 468, 98 S. Ct.
1930 (1978)
United States v. Bass, 404
U.S. 336, 30 L.Ed. 2d 488,
92 S. Ct. 515 (1971)
United States v. Lovasco,
431 U.S. 783, 52 L.Ed. 2d
752, 97 S. Ct. 2044 (1977)
United States v. Patterson, 150
U.S. 65, 37 LEG. 999, 14 S&S. Ct.
20 (1893)
United States v. Robel, 3289
U.S. 258, 19 L.Ed. 2d 508,
88 S. Ct. 419 (1967)
vlil
28
20
24
25
28, 29
16
bo
Ui
Cases
Wayte v. United States, 470
U.S. 598, 84 L.Ed. 2d 547,
105 S. Ct. 1524 (1985) 28, 29
Williams v. Illinois, 399
U.S. 235, 26 L.Ed. 2d 586, 11, 14
90 S. Ct. 2018 (1970) 19, 26
Williamson v. Lee Optical Co.
348 U.S. 483, 99 L.Ed. 563,
475 S. Ct. 46)7 (1955 13
Wolf v. McDonnell, 418 U.S.
539, 41 L.Ed. 2d 935, 94 S. Ct.
2963 (1974) 20
1X
Federal Constitutional Provisions
U.S. Const. amend. XIV, § 1 iin 2a
Federal Statutory Provisions
28 U.S.C. § 1257(€a) 2
Massachusetts Rules of Criminal Procedure
A)
Mass. R. Crim. P. 3
Mass. R. Crim. P. 30 >. 2. &. o
Massachusetts General Laws
G.L. c. 126, § 8 19
G.L. c. 218, § 26 10, 14, 15, 17
G.L. c. 218, § 27 11, 14, 15, 17, 21
G.L. CG. 218, § 30 1
G.L. c. 265, § 13B 3, 4, 5, 9, 10, 14,
15, 17, 19, 20, 21
G.L. c. 265, § 23 3, 4
G.L. c. 274, § 1 10, 11, 14, 20
G.L. c. 279, § 23 6, £3, 34, 38.32,
19, 20, 21, 29
G.L. C. 2479, § 33 19, 20, 21
UNOFFICIAL/OFFICIAL REPORTS OR OPINIONS
The trial court, the Worcester Divi-
sion of the Superior Court Department of
the Trial Court (hereinafter "Worcester
Superior Court"), did not issue any offi-
Cial or unofficial opinions. On April 8,
1991 the Worcester Superior Court denied
the Petitioner’s Motion to Dismiss (Pet.
App. at p. 11). On November 5, 1991 said
Court denied the Petitioner’s Massachu-
setts Rule of Criminal Procedure 30 Mo-
tion for Post Conviction Relief together
with his Motion for a Required Finding of
Not Guilty and his Verified Petition for
A Writ of Habeas Corpus Ad Subjiciendun.
(Pet. App. at p. 14, 17, 20). The Ap-
peals Court for the Commonwealth of Mas-
sachusetts (hereinafter "Appeals Court")
issued no official opinion but an unoffi-
cial opinion and order were issued by it
on December 22, 1992. (Pet. App. at p.
i. ‘Be “es The decision by the Appeals
Court, affirming the judgments of the
trial court, appears in 33 Mass. App. Ct.
1119 (1992) (Pet. App. at p. 4).
The Supreme Judicial Court of the
Commonwealth of Massachusetts (hereinaf
ter "Supreme Judicial Court") did not
issue an official opinion when it denied
discretionary appellate review on Febru
ary 8, 1993. (Pet. App. at p. 42). The
order of the Supreme Judicial Court,
denying discretionary appellate review,
appears in 414 Mass. 1102 (1993) (Pet.
App. at p. 43).
JURISDICTIONAL STATEMENT
The judgment which the Petitioner
seeks to review was entered on December
22, 1992 by the Appeals Court. Discre-
tionary appellate review was denied by
the Supreme Judicial Court on February
8, 1993. The statutory provision confer-
ring jurisdiction on this Court to review
the judgment of the Appeals Court is 28
U.S.C. § 1257(a). The referenced statute
provides, in pertinent part, that:
Final judgments or decrees ren-
dered by the highest court of a
State in which a decision could
be had, may be reviewed by the
supreme court by writ of cer-
tiorari .. . where the validi
ty of a statute of any State is
drawn in question on the ground
of its being repugnant to the
Constitution . . . of the Unit
ed States
APPLICABLE CONSTITUTIONAL
PROVISIONS AND STATUTES
UNITED STATES CONSTITUTION
U.S. Const. amend. XIV, § 1
Federal Statutory Provisions
28 U.S.C. § 1257(a)
Massachusetts Rules of Criminal Procedure
Mass. R. Crim. P. 3
Mass. R. Crim. P. 30
Massachusetts General Laws
6.i. ©. 238, § 27
G.L. c. 218, § 30
G.L. c. 265, § 13B
G.L. c. 265, § 23
G.L. c. 274, § 1
G.L. c. 279, § 23
G.L. CG. 279, § 33
STATEMENT OF THE CASE
The Petitioner, Ralph J. Abramo,
Jr., is a male person who, prior to Au-
gust 29, 1991, had never been convicted
of any misdemeanor or felony. On July 6,
1990, the Petitioner was charged with six
(6) crimes, three (3) violations of G.L.
c. 265, § 13B and three (3) violations of
G.L. c. 265, § 23. The initial charges
arose by way of a Complaint which was
issued by the Uxbridge Division of the
District Court Department of the Trial
Court. Thereafter, on August 14, 1990,
the Petitioner was bound over to the
Worcester Superior Court where he was in-
dicted on November 5, 1990 by a Worcester
County Grand Jury. Said Grand Jury re-
turned six (6) True Bills of Indictment,
numbered 90-2765, 90-2766, 90-2767, 90-
2768, 90-2769 and 90-2770 (hereinafter
the "initial indictments"), against the
Petitioner.
On March 4, 1991 a Worcester County
Grand Jury returned six (6) additional
True Bills of Indictment against the
Petitioner which were numbered 91-0478,
91-0479, 91-0480, 91-0481, 91-0482 and
91-0483 (hereinafter the "subsequent
indictments"). The subsequent indict-
ments charged the Petitioner with the
same offenses as contained in the initial
indictments, i.e. Rape and Abuse of a
Child Under the Age of Sixteen (G.L. c.
265, § 23) and Indecent Assault and Bat-
tery on a Child Under the Age of Fourteen
(G.L. c. 265, §13B). The Commonwealth
5
alleged, through the subsequent indict-
ments, that the Petitioner, between No-
vember 1, 1989 and July 4, 1990, commit-
ted, on "divers dates", several counts of
Rape and Abuse of a Child Under the Age
of Sixteen (G.L. c. 265, § 23) and Inde-
cent Assault and Battery on a Child Under
the Age of Fourteen (G.L. c. 265, § 13B)
upon each of the three (3) alleged vic-
tims.
On March 21, 1991 the Commonwealth
of Massachusetts unilaterally dismissed
the initial indictments. No Division of
the Massachusetts District Court issued
any Complaint relating to the subsequent
indictments and the Petitioner has not
otherwise appeared, been arraigned or
attended a probable cause hearing in any
division of the District Court in rela-
tion to the felonies contained within the
subsequent indictments. On August 29,
1991 the jury returned verdicts of not
6
guilty on indictments numbered 91-0479,
91-0480, 91-0481 and 91-0483 and the
Defendant’s Motion for a Required Finding
of Not Guilty was allowed in relation to
indictment number 91-0478. The jury
found the Petitioner guilty on indictment
number 91-0482 which indictment charged
the Petitioner with Indecent Sexual As-
sault and Battery upon a Child under the
Age of Fourteen (G.L. c. 265, § 13B).
(Pet. App. at p. 25, 39). On said date
the Petitioner was sentenced to execute
and commenced executing a five (5) year
term of incarceration at the Massachu-
setts Correctional Institute, Concord,
Massachusetts (hereinafter "MCI Con-
cord"). (Pet. App. at p. 21). MCI Con-
cord is a House of Correction.
The Petitioner appealed both the
verdict of the twelve (12) man jury sit-
ting in Worcester Superior Court together
with the judgment entered thereon and the
5
denial by the trial court of the follow-
ing motions and petition:
A. Motion for a Required Finding
of Not Guilty;
B. Mass. R. Crim. P. 30 Motion for
Post Conviction Relief;
eC. Verified Petition for a Writ of
Habeas Corpus Ad Subjiciendun.
The Petitioner timely filed a Mo-
tion, Affidavit and Memorandum in Support
of a Motion to Dismiss the subsequent
indictments, Motions for a Required Find-
ing of Not Guilty (at the close of the
Commonwealth’s case, at the close of the
Petitioner’s case and within five (5)
days of the jury having been discharged),
a Mass. R. Crim. P. 30 Motion for Post
Conviction Relief together with an Affi-
davit and Memorandum in Support of same
and a Verified Petition for a Writ of
Habeas Corpus Ad Subjiciendum accompanied
by an Affidavit and a Memorandun. The
Petitioner renewed his Motion to Dismiss
the subsequent indictments on August 28,
1991 which date was the first day of
aot te
On February 4, 1993, the Petitioner
was released from a minimum security
facility (House of Correction). The Peti-
tioner is currently and will be subject
to numerous parole conditions up to and
including August 28, 1996. (Pet. App. at
a In short, the Petitioner is
still in the custody of the Commonwealth
of Massachusetts and will be up to and
including August 28, 1996. "While the
Petitioner’s parole releases him from
immediate physical imprisonment, it im-
poses conditions which significantly
confine and restrain his freedom; this is
enough to keep him in the ‘custody’ of
the members of [Massachusetts] Parole
Board within the meaning of the habeas
corpus statute.." Jones v. Cunninghan,
371 U.S. 236, 243 (1963).
93 -
This case has been before this Court
on a previous occasion. On June 13, 1991
the Petitioner filed a Renewed Applica-
tion to Stay State Court Criminal Pro-
ceedings with the late Mr. Justice Mar-
shall who referred same to the Court.
The Court denied such application on June
24, 1991. Abramo v. Worcester Division
of the Superior Court, Etc., CS.
___, 115 Le Ba. 264 10135, iil &.C&. 2646
(1991). The initial application was ad-
dressed to and denied by the Circuit
Justice, Mr. Justice Souter.
STAGE OF PRIOR PROCEEDINGS AT WHICH
FPEDERAL QUESTIONS WERE RAISED AND
MANNER IN WHICH THEY WERE DETERMINED
BY TRIAL AND APPELLATE COURTS
The Petitioner raised the federal
questions sought to be reviewed by this
petition through the following pleadings
timely filed in the Worcester Superior
10
Court at the indicated stage:
Pleading Stage
Motion for a re- Within five (5)
quired finding days of the Jury
of not guilty having been
discharged: 9/6/91
Denied: 11/5/91
Motion to Dismiss Prior to Trial:
4/2/91
Denied: 4/8/91
Renewed Motiun to Prior to Trial:
Dismiss 8/28/91
Denied: 8/28/91
Mass. R. Civ. Post Trial:
P. 30 Motion 10/22/91
for Post Denied: 11/5/91
Conviction Relief
Verified Petition Post Trial:
for A Writ of 10/18/91
Habeas Corpus Ad Denied: 11/5/91
Subj iciendum
The Petitioner raised the federal
questions sought to be reviewed by this
petition through the following pleadings
timely filed in the Appeals Court at the
indicated stages:
Pleading Stage
Notice of Appeal Filed: 9/26/91
Notice of Appeal Filed: 12/2/91
Appellate Brief Appeal: 3/11/92
On December 22, 1992 the Appeals
Court affirmed the judgment of the Wor-
cester Superior Court and the denials by
the said court of the Petitioner’s Motion
For a Required Finding of Not Guilty, his
Mass. R. Crim. P. 30 Motion For Post
Conviction Relief and his Verified Peti-
tion For A Writ Of Habeas Corpus Ad Sub-
jJiciendun.
The Petitioner raised the federal
questions sought to be reviewed by this
petition through the following pleading
timely filed in the Supreme Judicial
Court at the indicated stage:
Pleading Stage
Application For Filed: 12/29/92
Leave To Obtain Denied: 2/8/92
Further (Discre-
tionary) Appellate
Review
ARGUMENT IN SUPPORT OF ALLOWANCE OF WRIT
I. THE EQUAL PROTECTION AND DUE PROCESS
CLAUSES OF THE FOURTEENTH AMENDMENT
OF THE UNITED STATES CONSTITUTION
12
ARE VIOLATED WHEN IDENTICALLY SITU-
ATED CRIMINAL DEFENDANTS ARE SUB-
JECTED TO DISPARATE CEILINGS OF
INCARCERATION PREDICATED UPON THEIR
"APPEARANCE" OR THE DEPARTMENT OF
THE STATE TRIAL COURT WHICH HAS
OBTAINED JURISDICTION
The trial courts of the Commonwealth
of Massachusetts are comprised of the
Land Court, Probate Court, District Court
and Superior Court. The District and
Superior Courts are situated throughout
the Commonwealth of Massachusetts in the
various counties. The Appeals Court is
an intermediate court of appeal. The
final appellate court within the Common-
wealth is the Supreme Judicial Court.
With but few exceptions not applicable to
the instant case, further appellate re-
view by the Supreme Judicial Court of a
decision by the Appeals Court is discre-
tionary in nature. The Worcester Superi-
13
or Court sentenced the Petitioner to
execute a five (5) year term of incar-
ceration at MCI Concord subsequent to his
trial and conviction for having allegedly
violated G.L. c. 265, § 13B. (Pet. App.
at p. 21, 39).
The basis of the Petitioner’s con-
stitutional argument is that the Equal
Protection and Due Process Clauses of the
Fourteenth Amendment of the United States
Constitution are violated when Superior
Court defendants are subjected to a ceil-
ing of incarceration of 10 years for a
first time violation of G.L. c. 265, §
13B while identically situated District
Court defendants are subjected to a ceil-
ing of incarceration of only 2.5 years.
G.L. GC. 218, § 26, G.L. CG. 265, § 13 B,
G.bL. GCG. 279, § 23, Gele CG. 218, § 27,
G.L. c. 274, § 1. It is apparent that
such a disparity (7.5 years) violates the
mandates imposed by the Equal Protection
14
and Due Process Clauses of the Fourteenth
Amendment.
G.L. c. 218, § 26 provides that the
District Court "shall have original ju-
risdiction, concurrent with the Superior
Court, [over the offense of] ... indecent
assault and battery on a child under
fourteen years of age." G.L. c. 279, §
23 precludes District Courts from order-
ing a male prisoner to execute a sentence
of incarceration in a jail or house of
correction for a period longer than 2.5
years. Since G.L. c. 265, § 13B allows
only for incarceration in a State Prison,
House of Correction or Jail and since a
District Court cannot sentence to a state
prison, the maximum sentence which the
District court can impose, without sus-
pending same, for a violation of G.L. c.
265, § 13B is 2.5 years regardless of
first offender or habitual offender sta-
tus. See G.L. c. 218, § <7; G.L. C.279,
§ 23; G.L. Cc. 265, § 13B; G.L. Cc. 218, §
26. Alternatively, the Superior Court
may sentence a first time offender, with
no previous criminal record, to a ten
(10) year term of incarceration upon
being convicted for having violated G.L.
c. 265, § 13B. see G.L. c. 265, § 13B;
G.L. Cc. 274, § 1; G.L. ©C.218, § 27, G.L.
c. 279, § 23. Therefore, depending sole-
ly upon the fortuitous circumstance of
the particular trial court (District
Court or Superior Court) in which a de-
fendant is tried, there exists a 7.5 year
statutory disparity between the ceilings
of incarceration.
The issue here is quite simple. Is
it constitutional to treat identically
situated individuals (first time offend-
ers having no previous criminal records)
who have been charged with the identical
criminal offense (G.L. c. 265, § 13B) in
a dissimilar fashion by subjecting them
16
to disparate ceilings of incarceration?
The Petitioner respectfully submits that
the answer must be in the negative. It
has long been held that "in the adminis-
tration of criminal justice no different
or higher punishment should be imposed
upon one than such is prescribed to all
for like offenses". ler v onnolly,
113 U.S. 27, 31 (1885). The "Equal Pro-
tection Clause of the Fourteenth Amend-
ment requires that the statutory ceiling
placed on imprisonment for any substan-
tive offense be the same for all defen-
dants..." Williams v. I]linois, 399 U.S.
235, 244 (1970).
Section One of the Fourteenth Amend-
ment of the United States Constitution
reads as follows:
AMENDMENT XIV [1868]
SECTION 1. All persons born or
naturalized in the United
States and subject to the ju-
risdiction thereof, are citi-
zens of the United States and
17
of the State wherein they re-
side. No State shall make or
enforce any law which shall
abridge the privileges or immu-
nities of citizens of the Unit-
ed States; nor shall any State
deprive any person of life,
liberty, or property, without
due process of law; nor deny to
any person within its jurisdic-
tion the equal protection of
the laws.
The threshold inquiry, in any case
in which an Equal Protection Clause vio
lation is asserted, is to determine the
level of scrutiny to be applied to the
allegedly illegal classification. °in
determining whether a class based denial
of a particular right is deserving of
strict scrutiny under the Equal Protec-
tion Clause, we look to the Constitution
to see if the right infringed has its
source, explicitly or implicitly, there-
in.* er v. Doe, 457 U.S. 202, 217 &
n.15 (1982). Liberty is defined within
the confines of the Due Process Clause as
the right "..generally to enjoy those
18
privileges long recognized at common law
as essential to the orderly pursuit of
happiness by free men", Meyer v. Nebras-
ka, 262 U.S. 390, 399 (1923). "While the
contours of this historic liberty inter-
est in the context of our federal system
of government have not been defined pre-
cisely, they always have been thought to
encompass freedom from bodily restraint
and punishment." Ingraham v. Wright, 430
U.S. 651, 673-674 (1977) (footnote omit-
ted. )
Since the Petitioner has been sub-
jected to incarceration and will be sub-
jected to numerous parole conditions, as
a consequence of his having been convict-
ed for allegedly violating G.L. c. 265,
$ 13B, an interest explicitiy protected
under the Due Process Clause has been and
continues to be implicated. The Defen-
dant, having been convicted under G.L. c.
265, § 13B, has been classified as a
19
felon and deprived of the freedom". . to
be with family and friends and to form
the other enduring attachments of normal
life". Morrissey v. Brewer, 408 U.S.
471, 482 (1972); Meachum v. Fano, 427
U.S. 215 (1976). Since the Petitioner
has been and is currently subjected to
the deprivation of his liberty interests,
explicitly and implicitly protected by
the Due Process Clause, strict scrutiny
analysis must be applied to any classifi-
cation which unequally disadvantages the
Petitioner in relation to these fundamen-
tal rights. Plyler v. Doe, 457 U.S., at
2iz7&hn. 15-
The Petitioner acknowledges that a
State has a liberal right to enact stat-
utes to combat particular problems of a
varying nature. "The range of discretion
that a state possesses in classifying ob-
jects of legislation ... may be excused
from [expression], in view of [this
20
Court’s] very recent decisions. The
power may be determined by degrees of
evil, or exercised in cases where detri-
ment is specially experienced." Armour &
Co. v. North Dakota, 240 U.S. 510, 517
(1916). The severity of the potential
ceiling of incarceration for violating
G.L. c. 265, § 13B is not here challenged
by the Petitioner since it is conceded
that "(ejvils in the same field may be of
different dimensions and proportions,
requiring different remedies." William-
son v. Lee Optical Co., 348 U.S. 483, 489
(1955). Likewise, the Petitioner is
cognizant of the fact that "the Fourteen-
th Amendment does not require that state
laws shall be perfect; and we cannot
judicially denounce [statutes] as based
upon arbitrary distinctions, in view of
the wide discretion that must necessarily
reside in a state legislature about re-
sorting to classification when establish-
21
ing regulations for the welfare of those
for whom they legislate". Missourl,
Kansas & Texas Ry. v,. Cape, 233 U.S. 642
650 (1914). See also Magoun v. IJ]linois
Trust & Sav. Bank, 170 U.S. 238, 293
(1897). Accordingly, the Petitioner does
not contest the maximum levels of incar-
ceration superficially delineated inG.L.
c. 265, § 13B. The Petitioner does,
however, contest the classification which
allows some Defendants (those tried and
convicted in a District Court) to arbi-
trarily and fortuitously escape the en-
hanced ceiling of incarceration to which
only Superior Court Defendants are sub-
jected. See G.L. c. 265, § 13 B, G.L. c.
218, $§ 2/7, G.le CG. 279, § 23, Gel CGC.
218, §$ 26, G.Le GC. 274, § 1.
It must here be noted that the Peti-
tioner’s attack on this statutory scheme
is not an attempt to wrest from a sen-
tencing judge the plenary power which he
22
or she retains in determining the type
and kind of punishment to be inflicted
upon a particular Defendant. See Wil-
liams _v. Illinois, 399 U.S. 235, 243
(1970). It is the prerogative of a sen-
tencing judge to sentence particular
defendants to disproportionate terms of
incarceration predicated upon the factual
circumstances extant in each case. How-
ever, the present statutory framework
essentially and illegally "precludes a
(District Court] judge from imposing on
any defendant the maximum penalty
provided by law." Williams v. Illinois,
399 U.S., at 243. No matter how "bad" an
"actor" the District Court defendant is,
a District Court Judge may not legally
sentence him to execute a term of incar-
ceration exceeding 2.5 years even though
the substantive criminal statute (G.L. c.
265, § 13B) allows for convicted first
time offenders to be incarcerated for 10
23
ee
years. see G.L. Cc. 265, § 13B; G.L. c.
218, §$ 26; G.L. Cc. 218, § 27; G.L. C.
279, § #3. Since the disproportionate
ceilings of potential incarceration are
imposed prior to trial, without a deter-
mination of guilt, without an inspection
of the gruesomeness of the Defendant’s
alleged conduct, without an inspection of
the Defendant’s background and without an
inspection of the various other factors
utilized to determine the term of incar-
ceration to be imposed, the Commonwealth
cannot viably assert that the Defendant
is attempting to strip the sentencing
power from the judicial branch.
The unequal deprivation of liberty
interests present here dictates that the
Commonwealth must demonstrate that such a
deprivation is "necessary to protect a
compelling and substantial governmental
interest". Dunn v. Blumstein, 405 U.S.
330, 341 (1972) (quoting Oregon v. Mit-
24
Chell, 400 U.S. 112, 238 (1970)). It
must be remembered that: "[s]tatutes af-
fecting constitutional rights must be
drawn with ‘precision’, and must be ‘tai-
lored’ to serve their legitimate objec-
tives". unn v. stein, 405 U.S., at
343 (citations omitted.) It is apparent
that the dispositive inquiry in this case
becomes whether or not the Commonwealth
of Massachusetts is capable of demon-
strating the existence of a compelling
governmental interest which makes neces-
sary the discrimination to which Superior
Court defendants are currently subjected.
M.G.L. c. 218, § 30 dictates that a
District Court may:
[cjommit or bind over persons
brought before them who appear
to be guilty of crimes within
their final jurisdiction.
(emphasis added).
The Commonwealth cannot logically
assert that it has a compelling govern-
23
mental interest in imposing a 2.5 year
ceiling of incarceration on one class of
criminal Defendants while imposing a 10
year ceiling on other identically situat-
ed Defendants predicated upon a first
blush “appearance" of innocence or lack
of same. This classification is in con-
travention of Fourteenth Amendment juris-
prudence and the dictate of Barbier v.
Connolly since it would impose a differ-
ent or higher punishment ". . upon one
than such is prescribed to all for like
offenses". Id. 113 U.S., at 3l.
Prior to conviction, a Defendant is
presumed to be innocent of all felonies
or misdemeanors with which he has been
charged. Therefore, when an individual
is subjected to the threat of increased
terms of incarceration by virtue of his
"appearance" of guilt he is deprived of
the referenced constitutional right.
"The principle that there is a presump-
26
tion of innocence in favor of the accused
is the undoubted law, axiomatic and ele-
mentary, and its enforcement lies at the
foundation of the administration of our
Criminal law." Coffin v. Uni ates,
156 U.S. 432, 453 (1895); see also Taylor
v. Kentucky, 436 U.S. 478, 483 (1978).
The unequal deprivation of an indi-
vidual’s liberty interests predicated
solely upon his "appearance" is the very
Capriciousness which the Equal Protection
Clause proscribes. G.L. GC. 218, $ 26,
Gis C. 326, 6 37, Ode Ce 358; 8 30,
G.L. c. 279, § 23 and Rule 3(e) of Mass.
R. Crim. P. may be utilized in conjunc-
tion with G.L. c. 265, § 13B, which it-
self thereby becomes unconstitutional, to
arbitrarily expose a Defendant to incar-
ceration for much lengthier periods if
tried, convicted and sentenced in the
Superior Court than would be possible
were the proceeding to occur in the Dis-
27
trict Court. A multitude of circumstanc-
es can be envisioned where oppression,
collusion, fraud and politics may deter-
mine the potential ceiling of a De-
fendant’s incarceration. [N]jothing opens
the door to arbitrary action so effec-
tively as to allow those officials to
pick and choose only a few to whom they
will apply legislation.." Eisenstadt v.
Baird, 405 U.S. 438, 454 (1972).
Likewise, the unilateral and abso-
lute power of the Commonwealth of Massa-
chusetts, whether exercised by whin,
political intervention or otherwise, to
dole out different levels of punishment
predicated upon the Trial Court in which
the Defendant is tried (District v. Supe-
rior) is not necessitated by a "compel-
ling governmental interest" which could
justify this discriminatory treatment.
See Dunn v. Blumstein, 405 U.S. 330, 342,
343 (1972). “It is not, under any view,
28
the mere tribunal into which a person is
authorized to proceed by a state which
determines whether the equal protection
of the law has been afforded, but whether
in the tribunals which the state has
provided equal laws prevail." Cincinnati
Street Railway Company v. Snell, 193 U.S.
30, 37 (1904).
When it is demonstrated that there
exists, as there does here, an invidious
Classification violative of the Equal
Protection Clause then there is, neces-
sarily, a concurrent violation of the Due
Process Clause. See Loving v. Virginia,
388 U.S. 1, 12 (1967). “The ‘equal pro-
tection of the laws’ is a more explicit
safeguard of prohibited unfairness than
‘due process of law’, and, therefore, we
do not imply that the two are always
interchangeable phrases. But, as this
Court has recognized, discrimination may
be so unjustifiable as to be violative of
29
due process." Bolling v. Sharp, 347 U.S.
497, 499 (1954).
Since the classification at issue
here trammels upon fundamental rights
this Court presumes the unconstitution-
ality of the statutory discrimination.
New Orleans v. Dukes, 427 U.S. 297, 303
(1976). The onus is now clearly upon the
Commonwealth of Massachusetts to demon-
strate that the referenced statutory
framework is constitutional.
II. THE EQUAL PROTECTION AND DUE PROCESS
CLAUSES OF THE FOURTEENTH AMENDMENT
OF THE UNITED STATES CONSTITUTION
ARE VIOLATED WHEN A STATE COURT
CRIMINAL DEFENDANT IS ORDERED TO
EXECUTE A FIVE YEAR SENTENCE OF
INCARCERATION IN A HOUSE OF CORREC-
TION, PURSUANT TO ONE STATE STATUTE,
WHEN TWO OTHER STATE STATUTES PRO-
HIBIT ANY COURT OF SUCH STATE FROM
ORDERING A DEFENDANT TO EXECUTE A
30
SENTENCE OF INCARCERATION IN A HOUSE
OF CORRECTION EXCEEDING TWO AND ONE
HALF YEARS IN DURATION
On August 29, 1991 the Petitioner
was sentenced to execute a five (5) year
term of incarceration at MCI Concord
which facility is correctly characterized
as a House of Correction. See G.L. c.
126, § 8; G.L. c. 279, § 33. When an
individual is convicted for having vio-
lated G.L. c. 265, § 13B, said statute
ind G.L. c. 279, § 23 dictate that he may
not be compelled to execute a sentence of
incarceration in a jail or house of cor-
rection which exceeds two and one half
years. Alternatively, G.L. c. 279, § 33
states that a person may be compelled to
execute a sentence of incarceration for a
period greater than 2.5 years at MCI
Concord if the term of the imposed incar-
ceration is for a period greater than 2.5
years and the incarceration results from
Ja
the alleged commission of a felony. See
G.L. c. 279, § 33. Since a violation of
G.L. c. 265, § 13B is a felony [see G.L.
c. 265, § 13 B, c. 274, § 1) and since
the term of incarceration here at issue
was to have been greater than 2.5 years,
G.L. c. 279, § 33 “allowed" the sentenc-
ing judge to compel the Petitioner to
execute a sentence of incarceration grea-
ter than 2.5 years in a house of correc-
tion. This power and its utilization
Clearly derogate from the mandates inm-
posed by the Fourteenth Amendment and
G.L. CG. 265, § 13B and G.L. Cc. 279, § 23.
G.L. c. 279, § 33 violates both the
Due Process and Equal Protection Clauses
of the Fourteenth Amendment of the United
States Constitution since said statute
prescribes a higher punishment for some
individuals, identically circumstanced
with others, than is provided for in G.L.
c. 265, § 13B and G.L. c. 279, § 23. See
32
Williams v. Illinois, 399 U.S. 235
(1970); Barbier v, Connolly, 113 U.S., at
31 (1885). Necessarily, G.L. c. 279, §
23 and G.L. c. 265, § 13B must define the
permissible punishment since "ambiguity
concerning the ambit of criminal statutes
Should be resolved in favor of lenity."
Rewis v. United States, 401 U.S. 808, 812
(1971); see also United States v. Bass,
404 U.S. 336, 347 (1971). After all,
"the touchstone of due process is the
protection against the arbitrary action
of the government" necessarily dictating
that the least onerous statutes are the
only statutes which may be utilized to
determine the length and ceiling of a
Defendant’s incarceration. Wolf v. Mc-
Donnell, 418 U.S. 539, 558 (1974). "TA])
person’s liberty [interest] is equally
protected, even when the liberty itself
is a statutory creation of the State".
Wolf, 418 U.S., at 558.
33
It is clear that the above delineat-
ed classification fails to withstand
strict scrutiny analysis. There can be
no compelling governmental interest in
subjecting defendants to such disparate
treatment when viewed in light of the
goals of the criminal laws and constitu-
tional dictates. See Plyler, 457 U.S.,
at 202 (1982); Bass, 404 U.S., at 347,
Barbier, 113 U.S., at 31.
It cannot be logically contended
that G.L. c. 279, § 33 is necessary to
preserve a judge’s post conviction sen-
tencing powers. Under the current statu-
tory scheme a District Court judge cannot
sentence a Defendant to execute a term of
incarceration exceeding 2.5 years. G.L.
GC. 279, § 233; GL. GC. 218, § 273 G.be CG.
265, § 13B. Therefore, since a District
Court judge is statutorily precluded from
sentencing any Defendant to execute a
term of incarceration at MCI Concord or
34
any other House of Correction or Jail
exceeding 2.5 years, said judge need not
avail himself of G.L. c. 279, § 33 to
fully "exercise" his post conviction
sentencing power. Similarly, Superior
Court judges need not utilize G.L. c.
279, § 33 to incarcerate a Defendant
beyond 2.5 years for violating G.L. c.
265, § 13B since they may order convicted
first time offenders to execute sentences
of up to 10 years in alternative penal
institutions. See G.L. Cc. 279, § 23,
G.L. Ge. 218, § 27, GL. GC. 265, § 13B,
Bes Ge. 274, 8 ie Therefore, neither
District Court judges nor Superior Court
judges need rely upon G.L. c. 279, § 33
in order to utilize fully their post
conviction sentencing power.
III. THE VOLUNTARY DISMISSAL OF AN INI-
TIAL CRIMINAL PROSECUTION PRECLUDES
A STATE FROM CONTENDING THAT ANY
ASSERTED ACT OF WAIVER WITHIN SUCH
35
PROCEEDING REGULATES THE CONSTITU-
TIONAL RIGHTS WHICH A DEFENDANT MAY
ASSERT IN A SECOND CRIMINAL PROSECU-
TION SUBSEQUENTLY COMMENCED AGAINST
HIM
No Division of the Massachusetts
District Court issued any Complaint re-
lating to the subsequent indictments and
the Petitioner has not otherwise ap-
peared, been arraigned, been bound over
from or attended a probable cause hearing
in any division of the District Court in
relation to the felonies contained within
the subsequent indictments. The proce-
dural history of this case has never been
contested by the Commonwealth. On page
twenty-one (21) of its brief filed in the
Appeals Court the Commonwealth stated, in
footnote eleven (11), that:
The Commonwealth notes that the
indictments arising out of the
initial district court con-
plaints were dismissed at bar.
Defendant, therefore, appeals
36
from a conviction in a prosecu-
tion begun by direct indictment
in the Superior Court.
Despite its admission that the sec-
ond criminal prosecution was never sub-
jected to the jurisdiction of the Dis-
trict Court, the Commonwealth has per-
sisted in contending that the Petitioner
"raised no challenge to the bind-over
process [G.L. c. 218, § 30] in the Dis-
trict Court." Consistent with this posi-
tion, the Commonwealth has continually
asserted that "by not raising his consti-
tutional claims until the case was en-
tered in the Superior Court, Petitioner
waived his opportunity to challenge the
district court process [G.L. c. 218, §
30)".
The Commonwealth’s assertions that
the Netixionn has waived constitutional
claims and rights constitutes a misunder-
standing of the nature, effect and impact
of the dismissal of the initial indict-
37
ments and the constitutional infirmities
upon which the Petitioner relies. The
Petitioner could not have raised any
challenge to the bind-over procedure in
the District Court since the second crin-
inal prosecution, unlike the initial
criminal prosecution, was never subjected
to the jurisdiction of any division of
the District Court. "A criminal charge,
strictly speaking, exists only when a
formal written complaint has been made
against the accused and a prosecution
initiated." United States v. Patterson,
150 U.S. 65, 68 (1893). "In the eyes of
the law a person is charged with crime
only when he is called upon in a legal
proceeding to answer to such a charge."
Id., 150 U.S., at 68. On two distinct
occasions the Commonwealth initiated
criminal prosecutions against the Peti-
tioner which actions required him to
answer to such charges.
38
A determination that a putative
waiver by the Petitioner, in the initial
prosecution, regulated the fundamental
rights which he could have asserted in a
subsequent criminal prosecution would
violate this Court’s precedent relating
to waivers in criminal cases and would,
concurrently, contravene the Due Process
Clause. Waivers in criminal cases must
be “voluntary, knowing, and intelligently
made ..."™ D.H. Overmyer Co. v. Frick
Co., 405 U.S. 174, 185 (1972). There
must be "an intentional relinquishment or
abandonment of a known right or privilege
Johnson v. Zerbst, 304 U.S. 458, 464
(1938). [A]s the Court has even said in
the civil area, ‘{Wje do not presume ac-
quiescence in the loss of fundamental
rights..’" D. H. Overmyer Co., 405 U.S.,
at 186 (quoting Ohio Bell Telephone Co.
v. Public Utilities Commission, 301 U.S.
292, 307 (1937)). It cannot be logically
39
posited by the Commonwealth that any
ostensible waiver by the Petitioner in
the initial criminal prosecution consti-
tutes a voluntary, knowing and intelli-
gent waiver of fundamental constitutional
rights enuring to his benefit in a crimi-
nal prosecution which had yet to be conm-
menced. Necessarily, a waiver under
these circumstances could not possibly be
characterized as having been voluntarily,
knowingly and intelligently made. There
could not have been, in these circum-
stances, "an intentional relinquishment
or abandonment of a known right or privi-
lege ... ™ Johnson, 304 U.S., at 464.
The application of the doctrine of
waiver to the facts of this case would
also violate the fundamental proscrip-
tions of the Due Process Clause. See
Wolf, supra. Nothing could be more arbi-
trary than to allow the government to
enforce the "transfer" of waivers from
40
one criminal prosecution to another at
its own whim and caprice. Due process
embodies "‘fundamental conceptions of
justice which lie at the base of our
Civil and political institutions,’ Mooney
v. Holohan, 294 U.S. 103, 112, 79 L. Ed.
791, 55 S. Ct. 340, 98 ALR 406 (1935),
and which define ‘the community’s sense
of fair play and decency,’ Rochin v.
California, supra, at 173, 96 L. Ed. 183,
72 S. Ct. 205, 25 ALR 2d 1396." United
States v. Lovasco, 431 U.S. 783, 790
(1977). The "fair play" and "decency"
commanded by the Due Process Clause would
be massacred if an individual were to be
deemed to have voluntarily, knowingly and
intelligently waived fundamental federal
constitutional rights in a criminal pros-
ecution not yet commenced as a conse-
quence of a waiver alleged to have oc-
curred in a prior criminal prosecution
which had been dismissed.
41
i
Even assuming, arguendo, that the
first and second criminal prosecutions
should be considered as one, there could
still not have been a waiver by the Peti-
tioner in this case. The basis of the
Petitioner’s constitutional arguments is
that the Equal Protection and Due Process
Clauses of the Fourteenth Amendment of
the United States Constitution are vio-
lated when Superior Court defendants face
potential incarceration of 10 years for a
first time violation of G.L. c. 265, §
13B while identically situated District
Court defendants are subjected to poten-
tial incarceration of only 2.5 years.
Necessarily, the Petitioner could not
have tenably asserted, in the District
Court, the existence of a violation pred-
icated upon the Equal Protection or Due
Process Clauses since the onerous aspects
of this statutory scheme are not visited
upon District Court defendants. Federal
42
constitutional jurisprudence has. long
dictated that:
[O]Jne who would strike down a
state statute as violative of
the Federal Constitution must
bring himself, by proper aver-
ments and showing, within the
Class as to whom the act thus
attacked is unconstitutional.
He must show that the alleged
unconstitutional feature of the
law injures him, and so opera-
tes as to deprive him of rights
protected by the Federal Const-
itution.
Southern R. Co. v. King, 217 U.S.
524, 534 (1910).
Since the unconstitutional features
of the relevant statutes applied only to
Superior Court Defendants, it would have
been legally impossible for the Petition-
er to have challenged the constitutional
infirmities of the bind over procedure
(G.L. c. 218, § 30) or the disparate
ceilings of incarceration while he was
subjected to the jurisdiction of the Dis-
trict Court. It is also noteworthy to
point out that the Petitioner never di-
43
rectly challenged the propriety of the
bind over procedure. His constitutional
attack upon G.L. c. 218, § 30 was and is
one aimed at demonstrating that same does
not constitute a compelling governmental
interest. Indeed, this is consistent
with the fact that the Petitioner was
never subjected to the provisions of G.L.
c. 218, § 30 since the subsequent crim-
inal prosecution was begun by direct
indictment in the Worcester Superior
Court.
The Petitioner is not unaware of the
fact that the disposition of the above
articulated issues "may place a further
burden on [Massachusetts] in administer-
ing criminal justice. Perhaps a fairer
and more accurate statement would be that
new cases expose old infirmities which
apathy or absence of challenge has per-
mitted to stand. But the constitutional
imperatives of the Equal Protection
44
Clause must have priority over the con-
fortable convenience of the status quo."
Williams v. Illinois, 399 U.S. 235, 245
(1970). It must be remembered that no
Court is “at liberty to grant or withhold
the benefits of equal protection, which
the Constitution commands for all, merely
as [it may) deem the Defendant innocent
or guilty". Hill v. Texas, 316 U.S. 400,
406 (1942.) If there is a differentia-
tion in treatment, which is unjustified,
the query truly is "whether the differ-
ence does injustice to the class general-
ly, even though it bears hard in some
particular case. . ." Bain Peanut Co. v.
Pinson, 113 U.S. 499, 501 (1931).
It is, on this late date, unques-
tionable that "[i])f the court which ren-
ders a judgment has no jurisdiction to
render it, either because the proceed-
ings, or the law under which they are
taken, are unconstitutional, or for any
45
other reason, the judgment is void and
may be questioned collaterally, and a
defendant who is imprisoned under and by
virtue of it may be discharged .. ." Re
Nielson, 131 U.S. 176, 182 (1889); see
also Ex Parte Royal, 117 U.S. 241 (1886) ;
Re Mills, 135 U.S. 263 (1890); Graham v.
Weeks, 138 U.S. 461 (1891); Pollard v.
United States, 352 U.S. 354 (1957).
IV. IF STATUTES RESULT IN AN OVERTLY
DISCRIMINATORY CLASSIFICATION ONE
WHO HAS BEEN INJURED THEREBY IS NOT
REQUIRED TO DEMONSTRATE THAT THE
DISCRIMINATION Is PURPOSEFUL OR
INTENTIONAL
Purposeful discrimination is normal-
ly a condition precedent to the assertion
of a viable Equal Protection Clause
Claim. See Mobile v. Bolden, 446 U.S. 55
(1980). However, "[a] showing of dis-
criminatory intent is not necessary when
the equal protection claim is based on an
46
overtly discriminatory classification."
Wayte v. United States, 470 U.S. 598, 608
& nm. (10); Strauder v. West Virginia,
100 U.S. 303 (1880). The facially dis-
criminatory statutory framework delineat-
ed above precludes the presentment of a
tenable contention that these statutes do
not perpetuate anything but "an overtly
discriminatory classification." Clearly,
the Petitioner need not show purposeful
discrimination in this’ circumstance.
Even assuming, arguendo, that the Peti-
tioner is in need of demonstrating pur-
poseful discrimination he is easily capa-
ble of such task. This Court is "..not
confined to the language of the statute
under challenge in determining whether
that statute has any discriminatory ef-
fect." American Motorist Ins. Co. v.
Starnes, 425 U.S. 637, 645 (1976). The
discriminatory effect of the statutory
scheme here challenged has been noted by
47
both legal commentators and the press
alike. The notes to Mass. R. Civ. P. 3
read as follows:
General Laws c. 218, §§ 26-27
and c. 279, § 23, when con-
strued together, have led to
the settled practice of the
District Court, although having
jurisdiction of felonies pun-
ishable by less than five years
at Walpole, sentencing to a
jail or house of correction for
not more than two and one half
years.
On Friday January 1, 1993 a Boston
Globe newspaper columnist (Doris Sue
Wong) noted, in relation to a pending
criminal case subject to the concurrent
jurisdiction of both the Superior and
District Court Departments, that "[r]Jath-
er than allowing the case to remain in a
(District Court], the [Assistant District
Attorney] sought direct indictments send-
ing the matter to Superior Court, where
penalties are stiffer." The discrimina-
tory purpose of the statutes in question
have been proven by their facial language
48
and noted by both legal commentators and
members of the press. It is without
doubt that these statutes effect a dis-
criminatory purpose. See Wayte v. United
States, Strauder _v. West Virginia and
America otoris es.
CONCLUSION
It is requested that the within
Petition be granted because "there are
special and important reasons therefor."
Sup. Ct. R. 10. .1l. The Massachusetts
Appeals Court "has decided an important
question of federal law .. . ina way
that conflicts with applicable decisions
Of tnas Court.” Sup. Ct. R. 10. .1.(c).
Thousands have, are or will be incarcer-
ated, in abrogation of their fundamental
rights under the Due Process and Equal
Protection Clauses of the Fourteenth
Amendment of the United States Constitu-
tion, in the absence of review by this
Court. The legal issues raised in this
49
Petition’are, necessarily, of grave pub-
lic concern.
Brendan J. Perry, Esquire
Counsel of Record
Christopher M. Perry, Esquire
Terance P. Perry, Esquire
BRENDAN J. PERRY & ASSOCIATES, P.C.
95 Elm Street
P.O. Box 6938
Holliston, MA 01746
(508) 429-2000
50
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