COMMONWEALTH vs. KENNETH MONTGOMERY.

BROWN, J. This is an appeal by the Commonwealth from the allowance of the defendant's motion to dismiss on speedy trial grounds. We affirm.

The facts presented at the motion hearing regarding the underlying incident were not disputed and are as follows. On February 13, 2002, shortly after 8:00 P.M., two police officers were conducting the unrelated surveillance of a commercial parking lot when they noticed the defendant get out of his vehicle and approach the victim and his son as they walked toward their

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car and began to enter it. The defendant prevented the victim from closing the driver's side door and began to stab him repeatedly in the head with an ice pick, causing the ice pick to bend. The defendant then hit the victim once with a crowbar before the police were able to get to the vehicle and prevent a second blow. The defendant had positioned a video camera in his vehicle that filmed the attack and on which the defendant can be heard to say immediately before he got out of his vehicle, "Get up and kill." The defendant believed that the victim, who had been his guidance counselor when he was a child, had sexually assaulted him and then hypnotized his family, causing them to disbelieve his account of the assault. The defendant's allegations of abuse had been throughly investigated and determined to be unfounded.

The defendant was arraigned in the District Court the day after the attack and committed to Bridgewater State Hospital (BSH) under the provisions of G. L. c. 123, § 15(b), to assess his competency to stand trial. The defendant was indicted by a grand jury in March, 2002, on two counts of armed assault (ice pick and crowbar), intent to murder a person over sixty, and two counts of assault and battery by means of a dangerous weapon (ice pick and crowbar), and arraigned on those indictments on May 28, 2002. [Note 1] When, by December, 2007, he had not yet been tried on the charges, the defendant filed a pro se motion to dismiss them on the ground that he had not been brought to trial within twelve months of the return date as required by Mass.R.Crim.P. 36(b)(1), 378 Mass. 909 (1979), and that the delay violated his

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right to a speedy trial guaranteed by the Sixth Amendment to the United States Constitution and art. 11 of the Massachusetts Declaration of Rights. After a nonevidentiary hearing, the judge allowed the defendant's motion to dismiss, and the Commonwealth has appealed.

Under rule 36(b)(1)(C), a criminal defendant who is not brought to trial within one year of the return day in the court in which the case is awaiting trial is presumptively entitled to dismissal of the charges unless the Commonwealth justifies the delay. The return day here was May 28, 2002; the defendant's trial therefore should have begun by May 28, 2003. On December 17, 2007, the date when the motion to dismiss was filed, tolling the running of time under rule 36, the Commonwealth was 1,663 days over the due date and needed to justify that number of excludable days. See Commonwealth v. Spaulding, 411 Mass. 503 , 505 n.4 (1992) (filing of motion to dismiss tolls running of rule 36 time); Mass.R.Crim.P. 36(b)(3).

In allowing the motion to dismiss, the judge excluded a substantial number of days related to competency issues but found that at least 670 days were includable under rule 36 (305 days in excess of the 365 days in which the Commonwealth is permitted to bring the defendant to trial). [Note 2] The judge ruled that because the Commonwealth "failed to offer any justification for the delay beyond the twelve-month time limit prescribed by [r]ule 36, the defendant is entitled to dismissal of the indictments against him."

In order to decide whether the motion was properly allowed under rule 36, we must consider in more detail the period of time between the defendant's arraignment and his filing of the motion to dismiss. The record consists of the docket and minutes of the clerk which, for purposes of rule 36, are "prima facie

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evidence of the facts recorded therein." Barry v. Commonwealth, 390 Mass. 285 , 289 (1983).

Here, the record reflects that for virtually the entire period since his arrest, the defendant has been committed to and held at BSH. At times when the defendant's competency to stand trial was at issue, he was confined at BSH pursuant to the provisions of G. L. c. 123, §§ 15 or 16, that specifically provide for competency evaluations and, upon a finding of incompetency to stand trial, commitment. At other times, the defendant became competent to stand trial (in part, because he was likely given appropriate antipsychotic medication once he was confined at BSH [Note 3]), yet he remained mentally ill. During these periods of competency he continued to be committed to BSH under the portion of G. L. c. 123, § 18, that provides for the confinement of a prisoner found to be in need of care and treatment by reason of mental illness and where the failure to confine such individual would create the likelihood of serious harm to himself or others.

The motion judge properly concluded that the periods of delay that resulted from an examination of the defendant's competency to stand trial under the provisions of G. L. c. 123, §§ 15 and 16, are explicitly excluded under Mass.R.Crim.P. 36(b)(2)(A)(i). [Note 4] That delay, [Note 5] added to the thirty days the judge excluded because the defendant moved for new counsel, [Note 6] totaled

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1,251 days, leaving the Commonwealth to justify the remaining 412 days that exceeded the permitted twelve-month period. [Note 7]

During this remaining period, when the defendant was competent but still confined to BSH, he was regularly returned to court for "status" reviews, similar to when he was incompetent to stand trial, but at no time was a trial date established in this case. Although all parties have a role in insuring that cases are promptly tried, in the end, it is "[t]he trial courts' responsibility . . . to 'control their own dockets so that criminal cases are brought to trial within the time periods specified by rule 36.' " Commonwealth v. Bourdon, 71 Mass. App. Ct. 420 , 428 (2008), quoting from Commonwealth v. Lauria, 411 Mass. 63 , 70 (1991). Accord Commonwealth v. Marable, 427 Mass. 504 , 506 (1998). See generally Commonwealth v. Spaulding, 411 Mass. at 506, 508. See also G. L. c. 278, § 1; Commonwealth v. Murphy, 55 Mass. App. Ct. 332 , 335-336 (2002); Reporters' Notes to Rule 36(a)(2)(B), Mass. Ann. Laws Court Rules, Rules of Criminal Procedure, at 1289 (LexisNexis 2009-2010); Smith, Criminal Practice and Procedure § 47.4, at 216 (3d ed. 2007). The delay in establishing a trial date while the defendant was competent is chargeable to the Commonwealth under rule 36 time limits. See Commonwealth v. Spaulding, supra; Commonwealth v. Fleenor, 39 Mass. App. Ct. 25 , 27 & n.3 (1995); Commonwealth v. Murphy, 55 Mass. App. Ct. at 335-336.

The Commonwealth argues that the defendant agreed or acquiesced to the continuances while he was competent and, therefore, the delay is justified. [Note 8] That no objection by the defendant appears

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on the record concerning his multiple appearances at the status conferences or reviews has no bearing on our inquiry of whether he acquiesced for purposes of speedy trial analysis. See Commonwealth v. Spaulding, 411 Mass. at 508. When a case is continued for "status," the responsibility for delay during this period is chargeable to the Commonwealth. Ibid. Absent a trial date having been set in the first instance, there is no basis upon which this court can conclude that the defendant acquiesced in a delay of that date. Commonwealth v. Fleenor, 39 Mass. App. Ct. at 27 n.3 (noting that "a defendant did not acquiesce in a delay where no trial date had been scheduled," but where "trial dates were scheduled [,] it [is] the continuance of the trial dates without objection that demonstrates that the defendant agreed to the delay"). To conclude otherwise would foist upon the defendant the government's obligation to set a trial date.

In the alternative, the Commonwealth argues that the defendant's commitment under G. L. c. 123, § 18, rendered him unavailable for trial. The Commonwealth does not direct us to any authority, nor do we discern any, in support of the position that confinement under § 18 abrogates the prosecutor's obligation to bring the defendant to trial or otherwise renders the defendant unavailable for trial. Moreover, such a position runs counter to the mental health statutory scheme because it would result in the defendant's being treated as though he were incompetent without the benefit of G. L. c. 123, § 16(f), which provides for the dismissal of the charges when an incompetent defendant has been confined for a period equal to that which he may have served on the single most serious offense. See Foss v. Commonwealth, 437 Mass. 584 , 586-587 (2002).

Finally, we need only pause to address the Commonwealth's argument that an additional 226 days should be excluded, covering the period from December 3, 2002, the date the defendant filed a motion for evaluation for criminal responsibility, to July 17, 2003, when, before the evaluation had been completed, he was again found incompetent to stand trial. [Note 9] Even assuming,

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without deciding, that these days should be excluded, there remain 188 days that the Commonwealth must justify. Because it has failed to do so, we affirm the motion judge's order allowing the defendant's motion to dismiss. [Note 10]

So ordered.