ANTHONY LEO vs. COMMONWEALTH.

ANTHONY LEO vs. COMMONWEALTH.

449 Mass. 1025

June 21, 2007

Anthony Leo appeals from a judgment of the county court denying his second petition for a reduction in his bail under G. L. c. 211, § 3. The Commonwealth has moved to dismiss the appeal as moot. We agree with the Commonwealth.

Leo was indicted on charges of aggravated rape and other crimes. Bail was set at $5,000,000, and Leo's requests for a reduction in bail were repeatedly denied in the trial court, at first on the ground that Leo presented a suicide risk, making him a flight risk, and thereafter on the ground that there had been no changed circumstances. After this court affirmed a single justice's denial of Leo's first petition seeking a reduction in bail, Leo v. Commonwealth, 442 Mass. 1025 (2004), Leo again moved for a reduction in the Superior Court. That motion was denied, and Leo filed his second petition in the county court. A single justice denied relief, and Leo has appealed. Since that time, Leo has pleaded guilty to all charges against him and has been sentenced to life in prison. This renders moot his request for a reduction in bail. See, e.g., LaChance v. Commonwealth, 437 Mass. 1013 (2002).

Contrary to Leo's argument, the matter is not "capable of repetition yet evading review." See, e.g., Guardianship of Nolan, 441 Mass. 1012 , 1013 (2004). Although it remains unsettled in Massachusetts whether "a suicide risk cannot, as a matter of law, be considered a flight risk," Leo v. Commonwealth, supra at 1026 n.1, and although that issue could recur in substantially the same form, it "would not necessarily evade review before [it] become[s] moot." Guardianship of Nolan, supra. A defendant seeking a reduction in bail on the grounds urged by Leo would not necessarily be convicted and sentenced before appellate review could be had. We decline to exercise our discretion to consider the merits of a moot claim in the circumstances of this case. See Commonwealth v. Gomes, 419 Mass. 630 , 631 n.2 (1995).

Appeal dismissed.

Page 1026

The case was submitted on the papers filed, accompanied by a memorandum of law.

Ellyn H. Lazar-Moore, Assistant District Attorney, for the Commonwealth.

Anthony M. Leo, pro se.