NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-599
KENNETH JAMES OTEY
vs.
COMMONWEALTH OF MASSACHUSETTS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Kenneth James Otey, filed a complaint in the
Superior Court, claiming that he suffered an erroneous felony
conviction and incarceration, and demanding compensation from
the defendant (Commonwealth) pursuant to G. L. c. 258D. He
claimed that he was entitled to compensation because a judge
ultimately vacated his conviction and dismissed the underlying
indictment. A Superior Court judge allowed the Commonwealth's
motion to dismiss. We affirm.
Background. On March 2, 2008, the plaintiff pleaded guilty
to distribution of a class B substance (cocaine), and a Superior
Court judge sentenced him to State prison for three years to
three years and one day. The defendant served his sentence that
terminated on July 11, 2011. Seven years later, the Supreme
Judicial Court issued an opinion in the case of Committee for
Pub. Counsel Servs. v. Attorney Gen., 480 Mass. 700, 704 (2018),
and dismissed thousands of convictions and pending charges
connected with the Amherst drug laboratory where an employee
tampered with evidence in criminal cases. In accordance with
that decision, on December 13, 2018, a single justice of the
Supreme Judicial Court vacated the plaintiff's conviction and
dismissed the charge with prejudice.
On December 10, 2021, the plaintiff filed a complaint (and
later a first amended complaint) seeking compensation pursuant
to G. L. c. 258D. The Commonwealth filed a motion to dismiss.
Following a hearing, a judge allowed the motion to dismiss
through an endorsement order. The judge reasoned that the
plaintiff's conviction was not vacated "on grounds which tend to
establish his innocence. G. L. c. 258D, § 1 (B) (ii). His
conviction was vacated and dismissed for reasons unrelated to
the merits of the indictments." Because the plaintiff's claim
did not qualify for relief under the governing statute, the
judge dismissed the complaint.
Discussion. "We review the allowance of a motion to
dismiss de novo" (quotation and citation omitted). Verveine
Corp. v. Strathmore Ins. Co., 489 Mass. 534, 538 (2022). "A
motion to dismiss will be granted unless the factual allegations
in the complaint are enough to raise a right to relief above the
speculative level based on the assumption that all the
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allegations in the complaint are true (even if doubtful in
fact)" (quotation and citation omitted). Id.
To recover damages against the Commonwealth for a wrongful
conviction, the plaintiff must initially establish that he is
within a "class of persons eligible to obtain relief." G. L.
c. 258D, § 1 (B). As relevant here, that class of persons
includes "those who have been granted judicial relief by a state
court of competent jurisdiction, on grounds which tend to
establish the innocence of the individual." G. L. c. 258D,
§ 1 (B) (ii). Such grounds must rest "upon facts and
circumstances probative of the proposition that the [plaintiff]
did not commit the crime" (quotation and citation omitted).
Guzman v. Commonwealth, 458 Mass. 354, 362 (2010). Put another
way, "a plaintiff must first show that the grounds for judicial
relief were probative of his innocence." Riley v. Commonwealth,
82 Mass. App. Ct. 209, 212 n.3 (2012).
Here, the judicial relief granted by the single justice was
unrelated to the question of the plaintiff's innocence.
According to the record, the single justice vacated the
plaintiff's conviction "per order of the Supreme Judicial
Court." The origin of that order comes from Committee for Pub.
Counsel Servs., 480 Mass. at 723, 729, where the Supreme
Judicial Court expressly eschewed relying upon a case-by-case
adjudication and opted instead for a global remedy involving
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thousands of cases impacted by improprieties at the Amherst drug
laboratory. Thus, far from being "probative of his innocence,"
Riley, 82 Mass. App. Ct. at 212 n.3, the order of the single
justice was based solely upon the fact that the cocaine in the
plaintiff's case happened to be analyzed at the subject lab
during a certain time period. Nothing in the single justice's
order suggests any "facts and circumstances probative of the
proposition that the [plaintiff] did not commit the crime"
(quotation and citation omitted). Guzman, 458 Mass. at 362.
Therefore, the plaintiff did not establish that he is within a
"class of persons eligible to obtain relief." G. L. c. 258D,
§ 1 (B).
We disagree with the plaintiff's contention that the single
justice's order bespeaks innocence. He contends that the order
indicates innocence because misconduct at the Amherst drug
laboratory merited the extraordinary remedy of dismissal, and
there is no longer any available evidence showing that he
committed a crime. The Supreme Judicial Court has rejected
similar arguments. In Commonwealth v. Caliz, 486 Mass. 888, 892
(2021), the court recognized the egregious misconduct related to
the Amherst drub laboratory, but declined to equate "government
misconduct" with "actual innocence." Also, a judicial remedy
that results in the absence of a retrial due to "dismissal or
nolle prosequi of the underlying criminal charge" does not
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equate with innocence. Peterson v. Commonwealth, 478 Mass. 434,
439 (2017). Judicial remedies for "'procedural or evidentiary
errors or structural deficiencies at . . . trial[] that could
well be "consistent" with innocence without any tendency to
establish it' would not meet the statutory definition." Irwin
v. Commonwealth, 465 Mass. 834, 846 (2013), quoting Guzman, 458
Mass. at 358. Because the plaintiff's conviction was not
vacated on grounds tending to establish innocence, he is not
eligible for relief under G. L. c. 258D. Contrast
Drumgold v. Commonwealth, 458 Mass. 367, 378 (2010) (grounds for
relief probative of "reliability of the identification of [the
defendant] as one of the shooters"); Guzman, supra at 365
(grounds for judicial relief tend to establish innocence where
"erroneously omitted evidence was probative of the conclusion
that the culprit was someone else").
The plaintiff's request for attorney's fees is denied.
Judgment affirmed.
By the Court (Shin, Brennan &
Hodgens, JJ.1),
Assistant Clerk
Entered: March 14, 2024.
1 The panelists are listed in order of seniority.
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