Commonwealth v. Juan Carlos Felix.

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-948

COMMONWEALTH

vs.

JUAN CARLOS FELIX.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant was found guilty of possession of fentanyl,

possession of cocaine with the intent to distribute, discharging

a firearm within 500 feet of a dwelling, possession of a firearm

without a firearm identification (FID) card as a career

criminal, and possession of ammunition without an FID card as a

career criminal. On appeal, he claims that his right to a

speedy trial under Mass. R. Crim. P. 36 (b), 378 Mass. 909

(1979) (rule 36 [b]), was violated. Because we conclude that

the Commonwealth cannot justify the delays in excess of the one-

year limit prescribed by rule 36 (b), we reverse the judgments

of conviction.

Factual background. The summarized factual background is

based on the uncontested evidence presented at trial. On

February 9, 2017, Edward Ouellette, Jr. was driving to his
friend's house in Fitchburg when he saw someone run in front of

his car. Ouelette stopped his car and saw two other people

within four feet of his car and saw one of those individuals

fire a gun. Ouellette could not clearly see their faces, but

noticed they were wearing dark-colored hooded sweatshirts or

jackets. The individual who fired the gun continued down the

street toward the first (running) person and fired the gun one

more time while the third individual followed.

Fitchburg Police Officer Jason Duval responded to the area

and located two individuals wearing black clothing walking on a

street approximately 200 yards away from the original encounter

with Ouellette. Because this occurred during a significant

snowstorm, the street was otherwise empty. As Officer Duval put

his vehicle in park, the two individuals began to run. Officer

Duval gave chase and he saw one of the individuals, later

identified as the defendant, reach for his waistband and hide

under the porch of 17-21 Franklin Street (the property). As

other officers chased down and arrested the other individual,

Officer Duval kept watch on the defendant, who was still hiding

under the porch. The defendant came out from hiding and was

arrested after a short foot chase. Officers searched the

defendant and found him in possession of an empty shell casing,

a black bag holding what appeared to be ten to twelve rocks of

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"crack" cocaine, and a "pill cylinder" containing what appeared

to be cocaine or crack cocaine.

Officer Duval found a silver revolver with a black handle

behind a glass frame under the porch area at the property. The

firearm was loaded and there were four casings inside the gun:

one was live ammunition and three were blank or spent. The

State crime laboratory confirmed that the firearm was fully

functional and the bullets inside were ammunition. They also

confirmed that the empty shell casing found on the defendant was

ammunition. Testing also revealed that the pill cylinder found

on the defendant contained fentanyl and the black bag found on

the defendant contained cocaine.

Procedural history. Given that the defendant's sole

argument on appeal is that he was deprived of his right to a

speedy trial, we recite with specific detail the relevant

procedural history. On March 16, 2017, the grand jury returned

an indictment (the original indictment).1 On April 4, 2017, the

defendant was arraigned on the original indictment. On June 1,

1 The original indictment charged the defendant with (1)
possession of cocaine with intent to distribute, (2) carrying a
loaded firearm without a license, and (3) possession of
ammunition without an FID card. The second and third charges
were both subject to the enhanced "career criminal" penalty
provisions of G. L. c. 269, § 10G.

3
2017, the court held a pretrial conference. On June 12, 2017,2

the defendant filed a discovery motion seeking automatic and

mandatory discovery. A discovery hearing was scheduled for

September 20, 2017, but the Commonwealth requested a

continuance. The discovery hearing was continued to October 18,

2017.

On October 18, 2017, the defendant filed a motion to

suppress evidence, which was heard on November 6, 2017, and

denied on December 12, 2017. On December 27, 2017, the

defendant then filed a motion to dismiss the sentencing

enhancements contained in the original indictment, which motion

was allowed on February 7, 2018.

A final pretrial conference was held on April 10, 2018.

The case was scheduled for trial on April 23, 2018, but, at the

request of the Commonwealth, the case was continued until June

4, 2018; on that date the trial was not held, again at the

request of the Commonwealth. Trial on the original indictment

was rescheduled for July 30, 2018, but was again not held, this

time due to a joint request from the parties.

2 Although the parties both state that this occurred on June
1, 2017, the docket and file stamp on the motion indicate
otherwise.

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 On July 24, 2018, the Commonwealth reindicted the case with

sentencing enhancements (new indictment).3 On July 30, 2018, the

original indictment was dismissed at the request of the

Commonwealth after the defendant was arraigned on this new

indictment.

A pretrial conference was scheduled for September 21, 2018,

but was not held because the defendant defaulted. On October

24, 2018, the warrant was removed, a final trial conference was

scheduled for March 22, 2019, and a new date for trial was set

for April 22, 2019. The trial conference was held as scheduled,

but on the trial date, the Commonwealth once again requested a

continuance, and a new trial date was set for October 15, 2019.

On October 3, 2019, the Commonwealth sought another continuance,

which was granted.

The defendant filed a motion to dismiss on October 15,

2019, arguing that he had been deprived of his right to a speedy

trial. After a nonevidentiary hearing, the court originally

allowed the defendant's motion to dismiss on November 8, 2019,

but after the Commonwealth filed a motion to reconsider, the

3 This new indictment charged the defendant with (1)
unlawful possession of a loaded firearm, (2) possession of
fentanyl with the intent to distribute, (3) possession of
cocaine with the intent to distribute, (4) discharging a firearm
within 500 feet of a dwelling, (5) possession of a firearm
without an FID card as a career criminal, and (6) possession of
ammunition without an FID card as a career criminal.

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court vacated the order and denied the motion to dismiss on

December 16, 2019.

A jury was empanelled on January 6, 2020, and after a

three-day jury trial, the defendant was found guilty of

possession of fentanyl, possession of cocaine with the intent to

distribute, discharging a firearm within 500 feet of a dwelling,

possession of a firearm without an FID card, and possession of

ammunition without an FID card. The defendant waived a jury

trial on the sentencing enhancements and the judge found him

guilty of unlawfully possessing a firearm and ammunition as a

career criminal.

Discussion. Rule 36 is a

"[case] management tool, designed to assist the trial
courts in administering their dockets. It also 'creates a
means through which [criminal] defendants who desire a
speedy trial can secure one.' Under rule 36, 'a criminal
defendant who is not brought to trial within one year of
the date of arraignment is presumptively entitled to
dismissal of the charges unless the Commonwealth justifies
the delay. Dismissal under rule 36 is with prejudice."
(Citations omitted.)
Commonwealth v. Dirico, 480 Mass. 491, 497 (2018). See rule 36

(b) (1) (c). Where the original arraignment occurred on April

4, 2017, and the defendant had not been tried by October 15,

2019, when he filed the motion to dismiss, 924 days later, "the

defendant[] [has] established a prima facie violation of rule 36

because [he was] not brought to trial within twelve months of

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arraignment." Commonwealth v. Graham, 480 Mass. 516, 523

(2018).

Accordingly, the burden rests on the Commonwealth "to

justify the delay, either by showing that it falls within one of

the 'excluded periods' enumerated under rule 36 (b) (2) or by

showing that 'the defendant acquiesced in, was responsible for,

or benefited from the delay.'" Graham, 480 Mass. at 517,

quoting Commonwealth v. Spaulding, 411 Mass. 503, 504 (1992).

The Commonwealth bears the burden of justifying a "period from

twelve months after the return date to the date a defendant

files his motion to dismiss," Barry v. Commonwealth, 390 Mass.

285, 294 (1983), which the parties agree in this case is 559

days.4 Where, as here, the judge's ruling on the defendant's

motion to dismiss was based "solely on the docket, the clerk's

minutes, and additional evidence in the record," and did not

rely on an evidentiary hearing, we review the ruling de novo.

Dirico, 480 Mass. at 496. Given the Commonwealth's burden of

justifying the period from twelve months after the return date

to the date a defendant files his motion to dismiss, we do not

4 The return date was April 4, 2017, so the clock started to
run on April 5, 2017. See Commonwealth v. Conefry, 410 Mass. 1,
3 (1991); Barry, 390 Mass. at 291-292. The defendant filed his
motion to dismiss on speedy trial grounds on October 15, 2019.
The difference between these two dates is 924 days, which is 559
days more than one year.

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analyze any of the days after October 15, 2019, under rule 36

(b).5

For the purpose of determining what periods of time were

excludable under rule 36 (b), the time between the defendant's

original arraignment until his motion to dismiss was filed may

be divided into sixteen distinct time periods, on eleven of

which the parties agree regarding the rule 36 (b) implications

and on five of which the parties disagree regarding the rule 36

(b) implications.6

1. Agreed-on excludable time periods. The defendant and

the Commonwealth agree that four time periods are excludable and

the Commonwealth may use these periods to meet its burden. The

parties agree that the period between September 20, 2017, and

October 18, 2017, is excludable because the defendant did not

object to the Commonwealth's request for a continuance. See

The Commonwealth argues that certain periods of delay that
5

occurred after October 15, 2019, are justifiable under rule 36.
Given our conclusion that the defendant's case should have been
dismissed based on the delay prior to his filing of the motion
to dismiss, the nature of delays that occurred after October 15,
2019, is irrelevant to our analysis.

In making our calculations, we adhere to rule 36 (b) (3),
6

which provides: "In computing any time limit other than an
excluded period, the day of the act or event which causes a
designated period of time to begin to run shall not be included.
Computation of an excluded period shall include both the first
and the last day of the excludable act or event." However, if
there are excludable periods of delay which overlap, a day is
excluded only once. Dirico, 480 Mass. at 497 n.5, quoting
Barry, 390 Mass. at 292.

8
Commonwealth v. Tanner, 417 Mass. 1, 3 (1994) ("A failure to

object to a continuance or other delay constitutes

acquiescence"). Accordingly, including the date that the

continuance was asked for, this period allows the Commonwealth

to exclude twenty-nine days. See Dirico, 480 Mass. at 497 n.5.

The parties also agree that the period between October 18, 2017,

and December 12, 2017, is excludable because the defendant's

motion to suppress evidence was filed on October 18, 2017, heard

on November 6, 2017, and denied on December 12, 2017. See

Reporters' Notes to Mass. R. Crim. P. 36 (b) (2) (A) (v),

Massachusetts Rules of Court, Rules of Criminal Procedure, at

223 (Thomson Reuters 2024) ("Delay attributable to the securing

of a judicial resolution of issues raised by a defendant's

pretrial motions are excluded from the running of the time

limits"). We agree with the parties that this period allows the

Commonwealth to exclude fifty-six days, but because we have

already counted October 18, 2017, as excludable, we do not count

it again. See Dirico, supra. The parties also agree that the

period between December 27, 2017, and February 7, 2018, is

excludable because the defendant's motion to dismiss the

sentencing enhancements was pending. See id. at 498.

Accordingly, including the date that the motion was filed, see

id. at 497 n.5, the parties agree that forty-three days are

excludable. Lastly, the parties agree that the period between

9
September 21, 2018, and October 24, 2018, is excludable because

the defendant's whereabouts were unknown while he was in

default. See rule 36 (b) (2) (B). Accordingly, including the

date that the defendant first defaulted, Dirico, supra, the

parties agree that thirty-four days are excludable. By our

calculation, the sum total of days the Commonwealth can exclude

from these agreed-on time periods is 161 days, which, once

subtracted from the Commonwealth's original obligation to

justify 559 days, leaves the Commonwealth with the burden of

justifying 398 days.

2. Agreed-on includable time periods. We briefly identify

seven periods that both parties agree are includable and the

Commonwealth may not use to meet its burden: the days between

April 5, 2017, and May 31, 2017; the days between May 31, 2017,

and September 20, 2017;7 the days between December 13, 2017, and

December 26, 2017; the days between April 10, 2018, and April

23, 2018; the days between July 30, 2018, and September 20,

2018; and the days between March 22, 2019, and April 22, 2019.

7 The Commonwealth conceded during oral argument, despite
arguing otherwise in its brief, that the time between May 31,
2017, and the scheduled discovery hearing on September 20, 2017,
is includable in our calculation because the defendant's motion
only sought automatic and mandatory discovery. See Commonwealth
v. Taylor, 469 Mass. 516, 526-529 (2014) ("the time it takes to
resolve [a motion under Mass. R. Crim. P. 14 (a) (1) (C), as
appearing in 442 Mass. 1518 (2004),] shall not be excluded
automatically from the ultimate speedy trial calculation").

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 3. Contested time periods. There remain five time periods

to discuss. The five time periods total 483 days that might be

used to meet the Commonwealth's remaining burden of justifying

398 days of delay: sixty-one potential days during the period

of February 8, 2018, to April 9, 2018; forty-two potential days

during the period of April 24, 2018, to June 4, 2018; fifty-five

potential days during the period of June 5, 2018, to July 29,

2018; 149 potential days during the period of October 25, 2018,

to March 22, 2019; and 176 potential days during the period of

April 23, 2019, to October 15, 2019.8 We begin by discussing

three of these periods, the last of which is outcome

determinative.

a. Time frame of February 8, 2018, to April 9, 2018. On

February 5, 2018, the court held a nonevidentiary hearing on the

defendant's motion to dismiss the sentencing enhancements

contained in the original indictment, during which the court

scheduled a final trial conference for April 10, 2018. On

February 7, 2018, the judge ruled on the defendant's motion to

dismiss the sentencing enhancements contained in the original

indictment. While the time prior to the judge's ruling was

8 Although the Commonwealth argues that December 27, 2017,
is excludable for other reasons, we do not include this single
potential day as part of this discussion because we have already
counted this day as excludable. The same is true for December
12, 2017; February 7, 2018; July 30, 2018; and October 24, 2018.

11
excludable because the defendant's motion to dismiss the

sentencing enhancements was under consideration, Dirico, 480

Mass. at 498, the period after the judge ruled on the motion to

dismiss but before the final trial conference is potentially

includable.

The Commonwealth argues that this period is excludable

because the scheduling of this final trial conference was

actually a continuance of a previously-scheduled event, and the

defendant did not object. See Tanner, 417 Mass. at 3. The

defendant argues that the final trial conference had not

previously been scheduled and thus this time is includable. See

Graham, 480 Mass. at 532-533 ("where a defendant agrees for the

first time to schedule a previously unscheduled event, there is

no 'continuance' or 'delay' that can be excluded under rule

36"). While the analysis would certainly be easier if the

record were clear, the only support for the argument that this

was a continuance is the "clerk's log," which has two important

notations:9 on January 11, 2018, it notes "TA not held. FTC/NHD

- 2∙5∙18"; on February 5, 2018, it notes "motion to dismiss -

U/A. FTC 4∙10∙18 Trial 4∙23∙18 (2 days)." Put simply, this

showing, standing on its own without more, is not enough to

support the Commonwealth's position that a continuance occurred

We note that the clerk's log is handwritten and is, at
9

times, difficult to decipher.

12
(and thus the time at issue is excludable). The Commonwealth

bears the burden of showing that this time is excludable, see

Graham, supra at 517, which in this context means providing us

with some evidence that a continuance actually occurred. The

record we have is not alone sufficient to conclude that a

continuance occurred on February 5, 2018. We accordingly agree

with the defendant that these sixty-one days are not excludable

and cannot be used to justify the delay in bringing the

defendant to trial. This leaves the Commonwealth with only 422

potentially-excludable days out of the original 483, to justify

398 days of delay.

b. Time frame of April 24, 2018, to June 4, 2018. On

April 23, 2018, the case was scheduled for trial, but the

Commonwealth, at the final trial conference, requested a

continuance of the trial to June 4, 2018. The prosecutor asked

for this continuance because the ballistics report was not

finished, and the Commonwealth would be unable to secure a

ballistician to testify as to the operability of the firearm or

whether the bullets inside the gun or on the defendant's person

were ammunition.10 The record is clear that the defendant

objected to this continuance.

10The prosecutor also argued that she was "double-booked"
on the days the trial was scheduled to occur. Because the judge
allowed the continuance for other reasons, we address only those
reasons.

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 Where a continuance occurs "because the parties have yet to

receive a forensic report from the laboratory, the period of

delay arising from the continuance can be excluded pursuant to

rule 36 (b) (2) (F) if the judge finds that 'the ends of justice

served by the granting of the continuance outweigh the best

interests of the public and the defendant in a speedy trial.'"

Dirico, 480 Mass. at 499-500, quoting rule 36 (b) (2) (F).

Here, the judge stated that "I find that the interest of justice

requires that we continue the matter over, mostly because of the

lack of a witness." Although the defendant argues otherwise, we

believe the record is clear that the judge's ruling falls

squarely under rule 36 (b) (2) (F). We accordingly review this

judicial finding for an abuse of discretion. See Dirico, supra

at 498 n.7. Where the Commonwealth bore the burden of proving

the operability of the firearm, see Commonwealth v. Drapaniotis,

89 Mass. App. Ct. 267, 270 (2016), we see no abuse of discretion

in a determination that the interests of justice were served by

allowing a continuance for the report to be created. See

generally Dirico, supra at 499-500 ("[E]xcludable delay may

arise from forensic testing where a scheduled court event is

continued because the forensic testing has yet to be completed

and the scheduled event cannot reasonably be held until the

parties obtain the testing results"). Accordingly, these forty-

two days may be used by the Commonwealth to meet its burden,

14
leaving the Commonwealth with 380 potential days remaining to

justify 356 days of delay.

c. Time frame of June 5, 2018, to July 29, 2018. On May

22, 2018, the Commonwealth once again asked for a continuance,

stating that the ballistics report was still not ready and the

Commonwealth would not be ready for trial scheduled on June 4,

2018. The defendant objected to this continuance by stating

that they were "objecting for the record." The motion judge,

who was not the same judge who had previously continued the

case, stated that "I appreciate the objection, but I'm going to

allow the motion." The Commonwealth argues that this ruling,

much like the ruling on April 10, 2018, was a determination

under rule 36 (b) (2) (F), and therefore the time period is

excludable. We disagree. In order for the time period to be

excludable, rule 36 (b) (2) (F) requires the judge to "set forth

in the record of the case, either orally or in writing, his

reasons for finding that the ends of justice served by the

granting of the continuance outweigh the best interests of the

public and the defendant in a speedy trial." The judge made no

explicit findings in the record demonstrating that he analyzed

the continuance under this rubric or reached such a conclusion.

Neither the prosecutor nor the defense attorney made mention of

speedy trial concerns or cited to rule 36. The judge made no

findings, written or otherwise, and we are left to interpret

15
whether the judge's ruling from the bench, which consisted of "I

appreciate your objection, but the motion is allowed," is

sufficient for us to imply that judge made the requisite

analysis and findings under rule 36 (b) (2) (F). Without more,

we are unable to hold that it was. Compare Commonwealth v.

Lougee, 485 Mass. 70, 79 (2020) (trials continued pursuant to

Supreme Judicial Court's COVID-19 emergency orders implicitly

carried requisite findings because continuances deemed necessary

in best interests of public); Graham, 480 Mass. at 528 (ruling

fairly characterized as rule 36 [b] [2] [F] decision where

prosecutor brought speedy trial issue to judge's attention and

judge considered interests of all parties and any potential

prejudice).

In essence, we cannot review the record and independently

determine that the prosecutor's proffered reason for a

continuance met the requirements of rule 36 for the time to be

excluded or that the judge so found. As a general matter, "[a]s

a reviewing court, we are not in a position to characterize a

continuance as an 'ends of justice' exception under rule 36 (b)

(2) (F) where the motion judge did not explicitly or implicitly

make the requisite finding." Dirico, 480 Mass. at 498 n.7.

While there have been instances in which judges were held to

have made an implicit finding under rule 36 (b) (2) (F), see

Graham, 480 Mass. at 538, there is nothing in the findings of

16
the judge or in the record to indicate that the judge considered

the defendant's rights to a speedy trial or the interests of the

public. The prosecutor's comments regarding their reasoning in

asking for a continuance only indicate that they thought a

continuance was appropriate, not that they were making a

specific request under rule 36 (b) (2) (F). Similarly, although

the defendant's objection was sufficient to preserve his rights

under rule 36 (b), it did not necessarily bring rule 36 to the

judge's attention because the judge could have understood an

objection "for the record" in this context to be a method for

the defendant to express their general dissatisfaction with the

continuance. See Commonwealth v. Lauria, 411 Mass. 63, 70-71

(1991) ("the defendants, consistent with their rule 36

obligations, were at least required to express their

dissatisfaction with the continuing delay or indicate that they

might be incurring prejudice as a result of it, and, by not

doing so, could warrantably be found by the motion judge to have

tacitly agreed to the delay" [emphasis added]). Where neither

party brought the speedy trial implications to the judge's

attention and there is nothing in the record to support that the

judge implicitly made a rule 36 finding, we are not in a

position as an appellate court to characterize this continuance

17
as an "ends of justice" exception under rule 36 (b) (2) (F).11

We therefore hold that this record contains neither an explicit

or implicit ruling under rule 36 (b) (2) (F). Accordingly,

these fifty-five days may not be used by the Commonwealth to

meet its burden of justifying delay, leaving the Commonwealth

with 325 potential days to justify 356 days of delay. It is

therefore impossible for the Commonwealth to meet its burden

under rule 36 (b).

Conclusion. The Commonwealth cannot justify the delays in

excess of the one-year limit prescribed by rule 36 (b) in

bringing the defendant to trial and we accordingly reverse the

11We also briefly note that the motion judge considering
the Commonwealth's motion for reconsideration regarding
dismissal characterized the delay as excusable under rule 36 (b)
(2) (B) due to the absence or unavailability of an essential
witness. The ruling describes two witnesses as "unavailable"
and only indirectly includes the time period of June 4, 2018,
through July 30, 2018, in the larger context of the time between
April 22, 2018, and August 26, 2019. We therefore believe that
the judge made a clerical error when describing the continuance
that occurred on April 22, 2018, not April 22, 2019, in which
two police officers were unavailable. Accordingly, this
characterization either does not apply to the period between
June 4, 2018, and July 30, 2018, or is clear error. We
accordingly do not consider it in our analysis of the days June
4, 2018, through July 30, 2018.

18
judgments of conviction and set aside the verdicts and findings.

The order allowing the Commonwealth's motion for reconsideration

and vacating the November 8, 2019, dismissal of the indictment

is also reversed, and the indictment is dismissed.

So ordered.

By the Court (Green, Walsh &
Smyth, JJ.12),

Assistant Clerk

Entered: April 9, 2024.

12 The panelists are listed in order of seniority.

19