| [1] |
APPEALS COURT OF MASSACHUSETTS
|
| [2] |
No. 94-P-654.
|
| [3] |
1996.MA.759 , 665 N.E.2d 124, 40 Mass. App. Ct. 480
|
| [4] |
May 23, 1996
|
| [5] |
COMMONWEALTH
v.
ALAN A. LASKOWSKI.
|
| [6] |
Middlesex. Complaint received and sworn to in the Ayer Division of
the District Court Department on March 1, 1993. On appeal to the jury session
of the Lowell Division, the case was tried before Christine M. McEvoy,
J.
|
| [7] |
Further appellate review denied on July 8, 1996 at 423 Mass. 1101,
667 N.E.2d 1158.
|
| [8] |
Mark J. Gillis for the defendant.
|
| [9] |
Thomas F. Robertson, Special Assistant District Attorney (Melissa J.
Weisgold, Assistant District Attorney) for the Commonwealth.
|
| [10] |
Present: Warner, C.j., Dreben, & Greenberg, JJ.
|
| [11] |
The opinion of the court was delivered by: Warner
|
| [12] |
Abuse Prevention. Practice, Criminal, Appeal. Waiver.
|
| [13] |
WARNER, C.J. A District Court Judge after a bench trial found the defendant
guilty of violating the "no contact" provision of a G. L. c. 209A
order on six occasions. After his sentence of eighteen months in a house
of correction, six months to serve with the balance suspended with probation,
the defendant appealed the finding and Disposition to a jury session of
the District Court. The defendant was found guilty of one violation of
the "no contact" order and not guilty on the other charges by a six-person
jury. The Judge sentenced the defendant to two years in the house of correction,
with one year committed and the balance suspended. The defendant appeals,
claiming only that the Commonwealth's prosecution violated his constitutional
right to familial association. We affirm.
|
| [14] |
The facts are as follows. In February of 1988, the victim, Christine
Dirrane, and the defendant met and began dating. This relationship continued
until January 1, 1992, during which time the victim gave birth to a child,
Sabrina Laskowski. On November 19, 1992, the victim obtained, ex parte,
a temporary restraining order pursuant to G. L. c. 209A.
The order specifically prohibited the defendant from contacting the victim
or Sabrina "in person, by telephone, in writing or otherwise." After a
hearing for which the defendant had received notice and at which he failed
to appear, the court extended this order until November 26, 1993. The defendant
received notice of the extended order and was aware of its contents and
duration.
|
| [15] |
At trial, the victim testified that the defendant telephoned her on
February 28, 1993. The victim further testified that during this phone
call, the defendant said, "that a restraining order is only good if you
follow through with it, that [the defendant] was going to go away if [the
victim] didn't go with him." *fn1
In addition, the victim testified that during the call she informed the
defendant that she did not want him to see Sabrina and that if he wished
to do so, he could go to the District Court to obtain relief from the restraining
order. The defendant denied that he called the victim on February 28, or
at any other time after the restraining order was issued.
|
| [16] |
The defendant testified that he had gone to the District Court to request
permission to have contact with Sabrina. The defendant said that once there,
he was directed to the Probate Court, a direction he claimed to have followed.
In addition, he alleged that he was adjudicated to be the father of Sabrina
in the Probate Court and that the Probate Court had scheduled a further
hearing for the week after the trial on the G. L. c. 209A
violation to consider whether to grant him visitation rights. The defendant
offered no documentation to support these assertions.
|
| [17] |
The defendant raises one issue on appeal -- whether the Commonwealth's
prosecution of the defendant for violating the "no contact" portion of
the G. L. c 209A order, see § 3(b) and (h), violated
his constitutional right to familial association without providing him
the requisite due process of law. *fn2
We conclude that the defendant improperly appealed his conviction and waived
his right to raise a constitutional challenge.
|
| [18] |
1. The defendant's right to appeal.
|
| [19] |
a. The unreviewable nature of the defendant's appeal. The defendant's
challenge on appeal that the District Court Judge deprived him of due process
when the Judge ordered him not to contact his former girlfriend's daughter,
Sabrina, is unrelated to his conviction for unlawfully contacting his former
girlfriend. Where a challenge to a conviction is unrelated to the conviction
itself, an appeal brings nothing to us.
|
| [20] |
Moreover, even if the defendant was deprived of due process in the
course of the entry of the order mandating that the defendant not contact
his girlfriend's daughter, the defendant's proper avenue of redress was
to file a motion for modification pursuant to G. L. c. 209A,
§ 3, Brossard v. West Roxbury Div. of the Dist. Ct., 417 Mass. 183,
185, 629 N.E.2d 295 (1994), or an appeal to a single Justice pursuant to
G. L. c. 211, § 3, Callahan v. Boston Mun. Ct., 413 Mass. 1009, 1009,
604 N.E.2d 1287 (1992), Frizado v. Frizado, 420 Mass. 592, 593, 651 N.E.2d
1206 (1995). Indeed, while the defendant claimed to have filed a paternity
action in the Probate and Family Court to obtain visitation rights pursuant
to G. L. c. 209C, § 5(a), an alternative appropriate avenue of redress,
at trial he did not produce any evidence supporting this assertion.
|
| [21] |
b. The challenge to the constitutionality of the order. The defendant
also did not preserve his right to challenge the constitutionality of the
G. L. c. 209A "no contact" order, because he did not raise
the challenge by a dispositive motion in the proceedings below. The Supreme
Judicial Court has consistently stated that a defendant may not argue for
the first time on appeal that a statute is unconstitutionally applied.
Commonwealth v. Dockham, 405 Mass. 618, 632-633, 542 N.E.2d 591 (1989).
Commonwealth v. Wolf, 34 Mass. App. Ct. 949, 951, 614 N.E.2d 679 (1993).
Moreover, the court has delineated several ways in which a defendant can
properly preserve an appeal challenging the constitutionality of a statute,
including raising the issue below in a motion for a required finding of
not guilty, Commonwealth v. Oakes, 407 Mass. 92, 94, 551 N.E.2d 910 (1990),
or, in specific instances, by a motion to dismiss. Commonwealth v. Kwiatkowski,
418 Mass. 543, 545, 637 N.E.2d 854 (1994). Furthermore, the defendant himself
concedes that, by failing to file a dispositive motion in either the primary
court or the jury session below, he did not use the prescribed methods
to challenge the G. L. c. 209A order on constitutional grounds.
|
| [22] |
2. Conclusion. In view of our Disposition, it is unnecessary to reach
the defendant's other arguments.
|
| [23] |
Judgment affirmed.
|
| |
|
| |
Opinion Footnotes |
| |
|
| [24] |
*fn1 The content of the call
is not significant. It was the fact of the call which established the G.
L. c. 209A violation.
|
| [25] |
*fn2 General Laws c. 209A,
§ 3, as amended by St. 1990, c. 403, § 3, provides in part as
follows: "A person suffering from abuse from an adult . . . may file a
complaint in the court requesting protection from such abuse, including,
but not limited to, the following orders: . . . (b) ordering the defendant
to refrain from contacting the plaintiff, unless authorized by the court,
whether the defendant is an adult or minor; . . . (h) ordering the defendant
to refrain from abusing or contacting the plaintiff's child, or child in
plaintiff's care or custody, unless authorized by the court."
|