NOTICE:
Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as
amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and,
therefore, may not fully address the facts of the case or the panel's decisional
rationale.
Moreover, such decisions are not circulated to the entire court and,
therefore, represent only the views of the panel that decided the case.
A summary
decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its
persuasive value but, because of the limitations noted above, not as binding precedent.
See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
20-P-583
COMMONWEALTH
vs.
KEVIN NORRIS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is the defendant's consolidated, expedited appeal from
an order denying his motion to modify sentence and/or stay
execution of his sentence, pursuant to Mass. R. Crim. P. 31 (a),
as appearing in 454 Mass. 1501 (2009),1 and from an order of the
single justice of this court denying his motion to stay,
pursuant to Mass. R. A. P. 6, as appearing in 481 Mass. 1608
(2019).

For the reasons that follow, we are constrained to

affirm both orders.
Following a jury trial in the Superior Court in 1992, the
defendant, who was age eighteen at the time of the crimes, was
convicted of three counts of aggravated rape, two counts of
armed robbery, assault by means of a dangerous weapon, and
breaking and entering a building in the daytime with intent to

1

See generally Christie v. Commonwealth, 484 Mass. 397 (2020).

 commit a felony and putting an occupant in fear.

He was

sentenced to concurrent terms of twenty-five to forty years in
State prison on the rape and robbery convictions, and to
concurrent lesser sentences on the remaining convictions.

His

appeal from his sentence to the Appellate Division of the
Superior Court was denied.

His direct appeal2 and each of his

seven subsequent motions for new trial, including a challenge to
his sentence pursuant to G. L. c. 211, § 3, were unsuccessful.
In 2018, the defendant was granted parole; however, the
defendant had an unauthorized "smart" cellular telephone
(smartphone) in his possession -- a parole violation -- that
resulted in his reincarceration in 2019.

The defendant is

currently eligible for parole next month, July 2020.

He is

presently serving his sentence at the Massachusetts Treatment
Center at Bridgewater (MTC).
The defendant claims error in the denial of his requested
relief because he was eighteen years of age at the time of the
crimes, the legal landscape has changed in light of scientific
developments on adolescent brain development, he had a traumatic
childhood, and, at his sentencing, the Commonwealth
misrepresented the circumstances surrounding a prior crime.

The

Commonwealth counters that these issues are waived and that the

Commonwealth v. Norris, 40 Mass. App. Ct. 1107 (1996).
appellate review was denied, 422 Mass. 1107 (1996).
2

2

Further

 defendant is estopped from raising these claims again.
Moreover, the Commonwealth asserts that the defendant was
paroled and remains parole eligible, and, therefore, his
sentence is not illegal.

See generally Diatchenko v. District

Attorney for the Suffolk Dist., 471 Mass. 12 (2015).

Lastly,

the Commonwealth contends that the defendant is a flight risk,3
and that he does not face a heightened risk of death or serious
illness from COVID-19 while in prison.

Christie v.

Commonwealth, 484 Mass. 397, 401-402 (2020).
We agree with the Commonwealth that the defendant's claims
relative to his sentence are waived.

See Commonwealth v.

Balliro, 437 Mass. 163, 170-171 (2002).

But even assuming they

were not, we are unpersuaded that the defendant has demonstrated
the requisite reasonable possibility of success on appeal to
warrant a stay of sentence.
Mass. 489, 498 (1979).

See Commonwealth v. Allen, 378

The defendant unfortunately fares no

better on the question of the specific risk to him relative to
the transmission of COVID-19.

Christie, 484 Mass. at 401-402.

The medical records supplied by the defendant indicate that he
has been prescribed an inhaler, as needed, for asthma; he is
forty-seven years old; and he has no other physical ailments.
This constellation of facts does not suggest that the defendant
We disagree with the Commonwealth that the defendant is a
flight risk. He has roots in the community and, notably, while
on parole did not flee the area.
3

3

 is at heightened risk of death or serious illness if he
contracts COVID-19.

See id.

Moreover, the most recent report

of the special master, see Committee for Pub. Counsel Servs. v.
Chief Justice of the Trial Court, 484 Mass. 431, 448-449 (2020),
reflects only twelve confirmed COVID-19 cases at the MTC since
May 11, 2020, and none since June 1, 2020.
We are sympathetic to the defendant's situation.

He has

accepted full responsibility for crimes that he described in an
April 2020 affidavit as "very horrific."

It is undisputed that

the defendant completed a number of programs while incarcerated,
including sex offender treatment.

After serving a considerable

portion of his sentence, the defendant was paroled in 2018.
Thereafter, the parole board learned that the defendant had an
unauthorized smartphone, which the defendant readily admitted.4
Possession of this smartphone -- a nonviolent, technical
violation -- resulted in the revocation of his parole, and
remains the only reason why he is currently incarcerated.
Ultimately it is the parole board that holds the proverbial
"key" to the defendant's freedom.

We are mindful that his

reincarceration stemmed solely from his possession of a
smartphone, a condition that does not appear to be directly
related to the crimes of which the defendant was convicted.
We recognize that with the advancements in technology, it is
increasingly difficult to purchase a cell phone that does not
have smart capabilities.
4

4

 However, the defendant has not met the standard for relief from
this panel on a motion to stay execution of the remainder of his
sentence, and we are without authority to release him from
incarceration based on any questions that we may hold regarding
the circumstances that led to the revocation of his parole in
2019.
Order denying motion to
modify sentence and/or stay
execution of sentence
affirmed.
Order of single justice
affirmed.
By the Court (Green, C.J.,
Maldonado & Blake, JJ.5),

Clerk
Entered:

5

June 17, 2020.

The panelists are listed in order of seniority.
5