COMMONWEALTH vs. SPRINGFIELD TERMINAL RAILWAY COMPANY (and seven companion cases [Note 1]).

SMITH, J. The defendants are four corporations that operate railways in Massachusetts and other States. Each defendant was charged with two counts of violating the reporting procedure mandated by the Massachusetts Oil and Hazardous Material Release Prevention Act, G. L. c. 21E, § 7, [Note 2] and prosecuted in accordance with G. L. c. 21E, § 11. [Note 3] The charges arose out of the defendants' failure to notify the Department of Environmental Protection (DEP) about a diesel fuel leak from a parked locomotive. A Superior Court jury returned guilty verdicts on both counts against all of the defendants. The judge sentenced each defendant on the first count to pay a fine of $100,000, plus a $25,000 surfine, payable within thirty days, and on the second count each defendant was placed on probation for three years with special conditions. [Note 4]

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On March 31, 2009, the defendants timely appealed their convictions [Note 5] and filed a motion for a stay of execution of their sentences. On April 2, 2009, the judge, in a memorandum of decision, denied the motion and ordered each defendant to pay an amount equivalent to the fine into an interest-bearing account in the joint names of the corporate defendant and the Attorney General during the pendency of the appeal. The defendants thereafter filed a joint motion to stay the execution of their sentence with a single justice of the Appeals Court on April 8, 2009. The motion was filed pursuant to Mass.R.Crim.P. 31(a), 378 Mass. 902 (1979), and Mass.R.A.P. 6, as appearing in 378 Mass. 930 (1979). [Note 6] On the same date, the single justice issued an order denying the joint motion "for substantially the reasons stated in the [trial] judge's memorandum of decision and order on the defendants' joint motion to stay execution of sentence entered on April 2, 2009." On April 15, 2009, the defendants filed in the Appeals Court a joint notice of appeal from the April 8 single justice order. [Note 7] On or about April 30, 2009, the defendants together deposited $500,000 into a joint interest-bearing escrow account in the names of each corporate defendant and the Attorney General.

When deciding whether to stay the execution of a sentence pending an appeal, see Mass.R.Crim.P. 31, 378 Mass. 902 (1979), a judge should consider two distinct factors. First, the sentence may be stayed if defendant raises "an issue which is worthy of presentation to an appellate court, one which offers some reasonable possibility of a successful decision in the appeal." Commonwealth v. Senior, 429 Mass. 1021 , 1022 (1999), quoting from Commonwealth v. Allen, 378 Mass. 489 , 498 (1979). See also Commonwealth v. Cohen (No. 2), 456 Mass. 128 , 132 (2010); Commonwealth v. Hodge (No. 1), 380 Mass. 851 , 855 (1980).

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Second, "[the] judge must find that the defendant presents no risk of flight or danger to the community, and that he is unlikely to commit additional criminal acts during the pendency of his appeal." Commonwealth v. Senior, supra.

In the defendants' joint motion for a stay of execution of their sentences, they argue that, pursuant to Rule 31(b), they are entitled to a mandatory stay of the fines imposed on them. [Note 8] They also claim that they are entitled to a stay of the probation conditions pending appeal because they do not pose a security risk, and because the issues raised in their direct appeal are novel and, therefore, would have a reasonable possibility of success at the appellate level.

In denying the defendants' motion, the trial judge focused heavily on the security risk posed by the defendants. In particular, she noted that each of the corporate defendants had failed immediately to notify DEP about the fuel release, of which numerous corporate employees, including management personnel, had knowledge. Further, "[t]he jury heard evidence that the corporate defendants, after [having] learned that DEP had been notified of the spill by an anonymous call, on at least two occasions directed employees to move the leaking locomotive to the Willows, an area in the vicinity of drinking wells for the public in Ayer." The diesel fuel spill was eventually estimated to be in the "100's of gallons." Although evidence indicated that an environmental plan of some kind was in place in the office of the train operations manager, the manager "had not read it and did not know, even by the trial[,] whether there was a notification procedure or what it was." Given the magnitude of the spill, the lack of procedures in place, and the defendants' actions, the judge concluded that the defendants posed a "tremendous danger" to the community and to the public.

Moving to the second factor, the judge acknowledged that the defendants presented multiple novel issues of law. Nevertheless, she summarily concluded that they had "failed to establish even a reasonable possibility of success" at the appellate level. Also,

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because time spent in prison was not a factor in this case, the judge found that the defendants were not harmed by the denial of a stay of probation.

Lastly, the judge determined that the fine "shall be stayed" by ordering that the amount of the fine be placed in a jointly held, interest-bearing account during the pendency of the appeal, rather than order that the fine be paid directly to the Commonwealth. "That way the effect of the stay is granted, i.e., payment not made, but the Commonwealth is, if successful on the defendants' appeal, assured of payment of the fine from the escrowed funds. Given the corporate structure of these four defendants, there is no other way to prevent corporate dissolution or dissipation during the duration of the appeal." [Note 9]

Discussion. "It is well settled that this court will not reverse an order of a single justice in the absence of an abuse of discretion or clear error of law." Commonwealth v. Senior, supra at 1021, quoting from Greco v. Suffolk Div. of the Probate & Family Court Dept., 418 Mass. 153 , 156 (1994). On appeal, the defendants renew the arguments they made before the trial judge and the single justice.

The trial judge's conclusion regarding the defendants' danger to the community was based on the evidence presented at trial about the defendants' apparent failure to heed environmental reporting laws. That evidence is not before us, and the defendants have provided nothing, other than their own assertions, demonstrating that the judge's recitation of the evidence is erroneous. We must therefore defer to her finding that the defendants pose a security risk, as did the single justice. See Commonwealth v. Ferrara, 8 Mass. App. Ct. 948 (1979) (affirming single justice's denial of defendant's motion for stay on the basis of security risk alone), citing Commonwealth v. Levin, 7 Mass. App. Ct. 501 , 505-506 (1979) ("when a denial by a single

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justice of a stay of execution pending appeal is predicated, in whole or in part, on reasons of security, the denial should not be disturbed on appeal unless the defendant can demonstrate abuse of discretion"). [Note 10] Because the defendants have failed to demonstrate that the single justice abused her discretion in denying the motion for security reasons, we need not decide whether the appellate issues they raise offer some reasonable possibility of a successful decision on appeal. [Note 11]

The rationale underlying the granting of a motion for stay further supports the denial of the defendants' motion. As noted by the trial judge, "[t]he practice [of granting a stay] is grounded in rudimentary notions of justice, for the right of appeal, which our law accords all persons convicted of crime, would otherwise be made nugatory in the case of a short sentence, and would be impaired in the case of a larger sentence: The conviction may be reversible, but the time spent in prison is not." Commonwealth v. Levin, supra at 512-513. Because the defendants here are corporations, and imprisonment is inapplicable, there is no concern that their appeal would become essentially futile or useless upon prompt execution of their sentences.

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We next turn to the defendants' argument concerning the order for payment of an amount of money into an escrow account equivalent to the amount of the fines. They claim that an amount paid into an escrow account is not different from the actual payment of the fines, and must be stayed pursuant to rule 31(b).

The Reporters' Notes to Rule 31(b) help to explain why the rule states that the payment of fines must be stayed. The Reporters' Notes state: "This provision is adopted in recognition of the difficulty a defendant has, upon the successful appeal of his judgment, in recovering money he has paid in satisfaction of a fine." Reporters' Notes to Rule 31(b), Mass. Ann. Laws Court Rules, Rules of Criminal Procedure, at 1666 (LexisNexis 2008). Here, where the funds were ordered to be placed in a court-controlled escrow account, there is no danger that the funds will be unrecoverable by the defendants should they succeed on appeal. Rather, upon conclusion of the defendants' appeal, the court will order the escrow agent to release the funds to either the Commonwealth or the defendants, depending on the outcome. Thus, the order crafted by the trial judge preserves the objective of the rule pending appeal, while at the same time addressing the concern, apparently raised during the course of the trial proceedings, that some of the defendant corporate entities may no longer exist at the end of the appeal period. [Note 12]

The order of the single justice is affirmed.

So ordered.