Commonwealth v. Gregory Belliveau, June 1, 2010
76 Mass. App. Ct. 830
Operating under the Influence, What Constitutes a Public Way, Ineffective Assistance of Counsel, Sentencing
The defendant was observed obviously intoxicated with a beer in his hand urinating in public immediately after driving onto a pier in Charlestown. The defendant was convicted of operating a motor vehicle under the influence of alcohol (OUI), fifth offense, in violation of G. L. c. 90 § 24(1)(a)(1). On appeal the defendant argued that the pier he was arrested on was not a public way under the statute, that he received ineffective assistance of counsel, and that the judge considered improper factors in sentencing. The Appeals court affirmed the judgment.
The appeals court first stated that in order to sustain an OUI conviction, the Commonwealth must prove that the offense took place “upon any way or in any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees”, and that a way is further defined as “any public highway, private way laid out under the authority of the statute, way dedicated to public use, or way under the control of park commissioners.” The court noted that SJC precedent has further interpreted the statute to require that the “public have a right of access by motor vehicle or access as invitees or licensees by motor vehicle.”
In deciding whether this pier constituted a public way, the court noted several factors in favor of considering it a public way, including that there was an MBTA commuter ferry stop on the pier, that the public had pedestrian access and that there were surrounding businesses and street lights on the pier. It also considered the facts that the pier had a gate that did shut, public vehicular access was not allowed according to a faded sign posted on the pier’s entrance, and the fact that only official vehicles had ever been seen on the pier as evidence that it wasn’t a public way.
Though the court discussed these factors at length, and called the issue a “close question”, it was one that they ultimately did not resolve. Instead the court decided that since the only way to drive onto the dock was from a public road, the truck was observed traveling very fast on the dock, and that the defendant could not have instantly become intoxicated on the dock, the only way for him to have gotten there was to have driven intoxicated on the public road. The court used this as sufficient circumstantial evidence to uphold his conviction for OUI.
Beyond this analysis, the court found that choices made by defense counsel were potentially beneficial and strategic decisions, and that the hearing of impact statements did not substantially affect the sentencing decision which still fell within the sentencing guidelines. Thus these last to contentions of the defendant were dismissed, and the judgment affirmed. A further concurrence by one of the judge’s suggested that public motor vehicle access should not be a requirement of a public way, only public access in any form including strictly public pedestrian access should suffice.
- Prepared by AEK
76 Mass. App. Ct. 830
Operating under the Influence, What Constitutes a Public Way, Ineffective Assistance of Counsel, Sentencing
The defendant was observed obviously intoxicated with a beer in his hand urinating in public immediately after driving onto a pier in Charlestown. The defendant was convicted of operating a motor vehicle under the influence of alcohol (OUI), fifth offense, in violation of G. L. c. 90 § 24(1)(a)(1). On appeal the defendant argued that the pier he was arrested on was not a public way under the statute, that he received ineffective assistance of counsel, and that the judge considered improper factors in sentencing. The Appeals court affirmed the judgment.
The appeals court first stated that in order to sustain an OUI conviction, the Commonwealth must prove that the offense took place “upon any way or in any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees”, and that a way is further defined as “any public highway, private way laid out under the authority of the statute, way dedicated to public use, or way under the control of park commissioners.” The court noted that SJC precedent has further interpreted the statute to require that the “public have a right of access by motor vehicle or access as invitees or licensees by motor vehicle.”
In deciding whether this pier constituted a public way, the court noted several factors in favor of considering it a public way, including that there was an MBTA commuter ferry stop on the pier, that the public had pedestrian access and that there were surrounding businesses and street lights on the pier. It also considered the facts that the pier had a gate that did shut, public vehicular access was not allowed according to a faded sign posted on the pier’s entrance, and the fact that only official vehicles had ever been seen on the pier as evidence that it wasn’t a public way.
Though the court discussed these factors at length, and called the issue a “close question”, it was one that they ultimately did not resolve. Instead the court decided that since the only way to drive onto the dock was from a public road, the truck was observed traveling very fast on the dock, and that the defendant could not have instantly become intoxicated on the dock, the only way for him to have gotten there was to have driven intoxicated on the public road. The court used this as sufficient circumstantial evidence to uphold his conviction for OUI.
Beyond this analysis, the court found that choices made by defense counsel were potentially beneficial and strategic decisions, and that the hearing of impact statements did not substantially affect the sentencing decision which still fell within the sentencing guidelines. Thus these last to contentions of the defendant were dismissed, and the judgment affirmed. A further concurrence by one of the judge’s suggested that public motor vehicle access should not be a requirement of a public way, only public access in any form including strictly public pedestrian access should suffice.
- Prepared by AEK
