Commonwealth v. Porter (Lawyers Weekly No. 11-082-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-1668 Appeals Court COMMONWEALTH vs. KEVIN PORTER. No. 13-P-1668. Middlesex. December 8, 2014. – July 30, 2015. Present: Kafker, Grainger, & Agnes, JJ. Escape. Imprisonment, Escape. Penal Institution. Statute, Construction. Practice, Criminal, New trial, Plea. Complaint received and sworn to in the Lowell Division of the District Court Department on August 27, 2007. A motion for a new trial, filed on August 29, 2012, was heard by Patricia A. Dowling, J. Leslie B. Salter for the defendant. Randall F. Maas, Assistant District Attorney, for the Commonwealth. AGNES, J. This case presents a question not previously addressed by the Supreme Judicial Court or this court about the scope of the statute which punishes an escape or an attempted escape by “[a] prisoner of any penal institution.” G. L. c. 268, § 16.[1] In particular, we are asked to determine whether a person serving a house of correction sentence, which was ordered to be served on weekends, see G. L. c. 279, § 6A,[2] who fails to report by 6:00 P.M. on a particular weekend, as required by the terms of his sentence, has “escaped” within the meaning of § 16 because he “fail[ed] to return from any temporary release from said institution.” G. L. c. 268, § 16. For the reasons that follow, we answer that question in the affirmative, and we affirm the order denying the defendant’s motion to withdraw his guilty plea. Background. The essential facts are not in dispute. On December 14, 2007, the defendant, Kevin Porter, pleaded guilty to one count of escape from a penal institution in violation of G. L. c. 268, § 16, and was sentenced to ten days in a house of correction, to be served consecutively after completion of a sentence he was then currently serving.[3] At the time of his plea, the defendant was serving a house of correction sentence of one year, six months to serve, with the balance suspended for eighteen months. The sentencing judge specifically had ordered that sentence to be served on weekends, beginning on August 3, 2007. See G. L. c. 279, § 6A. On Friday, August 24, 2007, the defendant failed to appear by 6:00 P.M. to serve his weekend sentence as required by G. L. c. 279, § 6A. The defendant telephoned the house of correction to warn them […]