Single justice declines stay for Alvarez but orders expedited appeal schedule

Presiding single justice in a single-justice appellate conference addressed a defense request that the execution of sentence in Commonwealth v. Alvarez be stayed pending appeal. The justice said he ‘‘do[es] not believe that I'm going to grant the relief that you seek in the sense of a stay of execution of sentence’’ and explained that concern about the defendant’s flight risk informed that view.

The justice told defense counsel, identified in the proceeding as Mister Kelly, that the reason was not a lack of legal issues but factual and risk considerations: Alvarez faces a 10-to-12-year sentence, has limited ties to the Commonwealth, and — as the justice summarized — the record reflects the defendant previously did not contest deportable status. The justice said one of the defense arguments is that there was insufficient evidence and that, if successful on appeal, the criminal case could end. For that reason, rather than grant a stay, the justice said he would expedite appellate review so the appellate court can decide the legal questions.

Mister Kelly told the court he had a partial transcript and had arranged a transcriptionist who could complete the record ‘‘within 1 to 7 days’’ if funds were available; he asked the court to expedite the appeal if the justice was not persuaded about release. Miss Burbine, counsel for the Commonwealth, said she did not object to expedition but warned of limited staffing (she said her unit had three ADAs) and existing briefing schedules running into January, which would make a very tight timetable difficult.

The justice acknowledged those staffing constraints but said he would impose a tight schedule because the appellant is incarcerated and the legal issues ‘‘merit being addressed by an appellate court on an expedited basis.’’ The court and counsel discussed practical timing: docketing and assembling the record (with clerk’s-office help if needed), and a schedule that the justice characterized as 30 days for the appellant’s brief from today as a practical target. Counsel discussed specific calendar targets in the hearing: defense agreed that December 15 was a reasonable date for the appellant’s brief if docketing and the transcript allow; the justice stated the Commonwealth would have until at least January 15 to file its brief and that a reply would be permitted, with argument tentatively to be scheduled in February. The justice said an order would issue formalizing the schedule.

The conference closed with the justice confirming that an order would be issued and counsel exchanging thanks. The court’s on-the-record remarks make clear the court declined to grant a stay at this conference but directed an expedited appellate process; the written order will state the precise deadlines and any further procedural requirements.