COMMONWEALTH OF MASSACHUSETTS SUPREME JUDICIAL COURT No. $JC-12501 COMMONWEALT! Appellant, ve AARON J. HERNANDEZ Appellee. APPELLEE'S MOTION FOR RECONSIDERATION OR MODIFICATION OF DECISTON Pursuant to Rule 27, M.R.App.P., Appellee Hernandez moves the Court for reconsideration by the full Court of its March 13, 2019 decision, and in particular of that part which applies the new rule of the case retroactively against him. I. POINTS OF LAW AND FACT WHICH THE COURT HAS OVERLOOKED OR MISAPPREHENDED. Purporting to act under its common law powers, the Court abrogated the practice of abatement ab initio and adopted a new rule, fashioned from the Alabama rule set out in State v. Wheat, 907 So.2d 461 (2005) ["the wheat rule"], for terminating criminal cases in which the appellant dies while his direct appeal is pending. It then applied this new rule to the present case, contrary to established precedent, most recently stated inCommonwealth v. Russell, 470 Mass 464 (2015). The facts of this case do not provide any basis on which application of Russell would justify applying the Wheat rule to the present appeal. No record evidence supports a finding that anyone will benefit from this retroactive application. A. The Court Overlooked The Holding Of Commonwealth v. Russell In Ordering That The Commonwealth Be Given The Benefit Of Its New Rule In This Case. Whether the Court’s new rule should be applied to this case was not briefed or otherwise addressed by either party or the Court in oral argument. The question is controlled by Commonwealth v. Russell, 470 Mass at 478-479 , where the Court held that an appellant is not entitled to the benefit of a new common-law rule unless a miscarriage of justice would otherwise result. Purely prospective application is the general rule. Commonwealth v. Dagley, 442 Mass 713, 720- 721 (2004)[In prior cases announcing new rules or requirements in the exercise of our superintendence power, we have declined to give the new rule or vequirement retroactive effect”]. Specific retroactivity is the exception, to prevent a miscarriage of justice. Russell, at 479 [“here we are not concerned that in the absence of the new rule there may have been a miscarriage of justice”]. The Court gave one reason for applying its new rule retroactively to this case: “the Commonwealth objected at 2the time to the trial judge’s order and then pursued this appeal and urged us to abandon and replace that doctrine.” Commonwealth v. Hernandez, 481 Mass 582, 602 (2019). The Court neither cited nor distinguished Russell, in which it held that “the successful request for a new rule . . ., standing alone, is insufficient to merit a retroactive application.” 470 Mass at 479. 1. Specific Retroactive Application Is Not Necessary To Avoid A Miscarriage Of Justice. The Court adopted the wheat rule without reference to any record facts. Nothing in the record of this case supports a finding that a miscarriage of justice can only be prevented by the application of this new rule for the Commonwealth's benefit. No record facts support the idea that anyone at all will benefit from this gratuitous declaration of specific retroactivity. 2. The Primary Impetus For This Appeal Came From A Single Justice Of This Court. The record of the proceedings in Commonwealth v. Hernandez, No. $J-2017-247 demonstrates that it was Justice Lowy, acting as single justice in the suffolk County session, who provided the primary impetus for this appeal after the Commonwealth forfeited its statutory right to appeal. The Commonwealth did not file a timely notice of appeal from Judge Garsh’s ruling. After allowing the time for appeal to run, it filed a petition for relief pursuant to G.L. 211, §3, which Hernandez opposed. 3