JEMALD ALLEN vs. COMMONWEALTH.

JEMALD ALLEN vs. COMMONWEALTH.

449 Mass. 1020

June 20, 2007

Jemald Allen appeals from a judgment of the county court denying his petition under G. L. c. 211, § 3, in which he sought review of a Superior Court judge's decision to revoke bail pending trial on an indictment charging Allen with murder in the first degree. The Commonwealth has moved to dismiss the appeal as moot. We agree with the Commonwealth.

After the single justice denied relief, Allen was convicted on an unrelated indictment charging him with certain drug offenses and sentenced to consecutive terms in the State prison, which sentence he is currently serving. Thus, even if bail were improperly revoked, which we do not decide, Allen could not be released at this time. In addition, the Commonwealth informs us that Allen has been tried and acquitted on the murder indictment. In these circumstances, the appeal is moot. E.g., LaChance v. Commonwealth, 437 Mass. 1013 (2002) (bail review moot where defendant convicted and sentenced).

Contrary to Allen's argument, the matter is not "capable of repetition yet evading review." See, e.g., Guardianship of Nolan, 441 Mass. 1012 , 1013 (2004). Although the legal issues raised by Allen's claim that bail was improperly revoked might well recur in substantially the same form, "they would not necessarily evade review before they become moot." Id. A pretrial detainee challenging the revocation of bail would not necessarily be sentenced

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to a term of confinement before appellate review could be had. Moreover, the basis on which bail was revoked, namely, changed factual circumstances suggesting an increased risk of flight, is not an issue of such public importance as to warrant the exercise of our discretion to consider the merits of a moot question. See Commonwealth v. Resende, 427 Mass. 1005 , 1006 (1998), citing Commonwealth v. Gomes, 419 Mass. 630 , 631 n.2 (1995) (declining to consider merits of moot claim).

Appeal dismissed.

The case was submitted on briefs.

Stephen Neyman for Jemald Allen.

Joseph M. Ditkoff, Assistant District Attorney, for the Commonwealth.