Commonwealth v. Nicky S. Keo. ( 2023 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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
22-P-837
COMMONWEALTH
vs.
NICKY S. KEO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Nicky S. Keo, appeals from the denial of his
motion for a stay of execution of his criminal sentence pending
appeal. See Mass. R. A. P. 6, as appearing in 481 Mass. 1608(2019).
The defendant pleaded guilty in the District Court on June
6, 2022, to a single count of unlawfully carrying a firearm
without a license in violation of G. L. c. 269, § 10 (a).1 He
was sentenced to the mandatory minimum house of correction term
of eighteen months. Shortly thereafter, on June 23, 2022, the
Supreme Court of the United States issued its decision in New
1 At the change of plea hearing, the Commonwealth agreed to
dismiss three additional counts charging knowingly receiving a
firearm with a defaced serial number, G. L. c. 269, § 11C;
unlawful carrying of a loaded firearm, G. L. c. 269, § 10 (n);
and possession of a class B substance with intent to distribute,
G. L. c. 94C, § 32A (a).
York State Rifle & Pistol Ass'n v. Bruen, 142 S. Ct. 2111
(2022), holding that the State of New York's statute for
obtaining a license to carry a firearm outside of the home
impermissibly burdened the Second Amendment rights of law-
abiding citizens.
Within the thirty-day window of Mass. R. A. P. 4 (b) (1),
as appearing in 481 Mass. 1606 (2019), the defendant filed a
notice of appeal. Shortly thereafter he filed in the District
Court a motion "to correct the unconstitutional sentence, or, in
the alternative, motion for a new trial," together with a motion
to stay his sentence pending appeal. He argued that the Supreme
Court's analysis in Bruen implied that the Commonwealth's
mandatory minimum sentence for unlawfully carrying a firearm is
unconstitutional. The same judge who had accepted the guilty
plea denied both motions, and the defendant timely appealed from
the denial of the new trial motion. The defendant also renewed
his motion for a stay in the single justice session of this
court. The single justice denied the motion concluding, as the
District Court judge had also concluded, that the defendant's
appellate claim was not reasonably likely to succeed. The
defendant timely filed a notice of appeal from the single
justice's decision, which we now address.
We "review the single justice's ruling for error of law or
abuse of discretion." Commonwealth v. Nash, 486 Mass. 394, 412
2
(2020). The only question presented in this appeal is whether
the single justice erred in holding that the defendant's Bruen
claim does not have a reasonable likelihood of success.2
The law is clear that a frivolous issue on appeal does not
warrant a stay, but that, to obtain a stay, the defendant is not
required to show that he is more likely than not to prevail.
See Nash, 486 Mass. at 404. "What is perhaps less clear, and
what likely defies precise calculation, is just how far along
the spectrum between 'frivolous' and 'more likely than not' the
appeal must be in order that it can be said to present 'some
reasonable possibility of success.'" Id. We conclude that the
single justice's assessment of the defendant's claim as falling
on the frivolous side of the spectrum was not an error of law.
Given the accelerated evolution of the Supreme Court's
Second Amendment jurisprudence from District of Columbia v.
Heller, 554 U.S. 570 (2008), through Bruen, we would be hard
pressed to attach the adjective "frivolous" to any legal claim
for further expansion of the right to bear arms. Nonetheless,
without commenting at any length on the merits of the
2 In his reply brief, the defendant argues for the first time
that we should apply the likelihood of success factor more
leniently in his favor because of COVID-19 concerns. "We need
not pass on grounds for reversal raised for the first time in a
reply brief." Commonwealth v. Garcia, 94 Mass. App. Ct. 91, 104
(2018), quoting Commonwealth v. McGowan, 400 Mass. 385, 390 n.4
(1987). Even if we were to take the COVID-19 factor into
account, however, we would reach the same result.
3
defendant's claim -- which will be decided by a panel of this
court at a later date3 -- we consider it quite unlikely that the
defendant will prevail. Nothing in the Bruen decision, which
concerns eligibility requirements to obtain a license to carry a
handgun lawfully, purports to limit the Legislature's "great
latitude" to establish the sentencing range for defendants
convicted of the crime of unlawfully carrying a firearm without
a license. Commonwealth v. Jackson, 369 Mass. 904, 909 (1976).
The severity of sentencing is an issue firmly rooted in Eighth
Amendment jurisprudence. See id. (mandatory minimum one-year
sentence for unlawful carrying of firearm not "so
disproportionate to the offense as to constitute cruel and usual
punishment in violation of the Eighth Amendment to the United
States Constitution, and art. 26, the parallel provision of our
Declaration of Rights"). The defendant does not cite a single
case in which a sentence for possessing or carrying a firearm
without a license has been invalidated on Second Amendment
grounds for being too severe. Indeed, as the defendant
acknowledges in his reply brief, "controlling precedent hold[s]
squarely to the contrary."4
3 The Supreme Judicial Court denied the defendant's request for
direct appellate review.
4 We discern nothing to the contrary in the Supreme Court's
historical discussion of surety statutes. See Bruen, 142 S. Ct.
at 2149. The defendant is free to press his point about this
4
Given the unlikelihood of the defendant's succeeding on
appeal, we affirm the order of the single justice denying his
request for stay of sentence pending appeal.
So ordered.
By the Court (Massing,
Sacks & Walsh, JJ.5),
Clerk
Entered: February 15, 2023.
aspect of the Bruen decision more fully on the merits in his
appeal.
5 The panelists are listed in order of seniority.
5