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December 8, 1977


Suffolk. Petition for a writ of error filed in the Supreme Judicial Court for the county of Suffolk on February 10, 1975. The case was heard by Braucher, J.

Hennessey, C.j., Kaplan, Wilkins, Liacos, & Abrams, JJ.


Constitutional Law, Assistance of counsel. Due Process of Law, Assistance of counsel, Appeal in criminal case. Practice, Criminal, Assistance of counsel, Appeal.

The opinion of the court was delivered by: Liacos

Discussion of circumstances in which the failure of retained or appointed counsel to inform a criminal defendant of his appellate rights constitutes a deprivation of constitutional rights. [833-835]

The failure of retained counsel to inform a criminal defendant of his appellate rights or to protect the defendant's right of appeal did not constitute ineffective assistance of counsel sufficient to warrant reinstatement of those rights where a finding was warranted that an appeal would be frivolous. [836-838]

Eleven months after his convictions on three felony indictments, the petitioner filed a petition for writ of error in the Supreme Judicial Court for the county of Suffolk. He alleged that the failure of his retained counsel to file a timely bill of exceptions or otherwise to preserve his right to seek appellate review of the convictions constituted ineffective assistance of counsel. The matter was referred by the court to a special master and commissioner. After hearing evidence and examining the transcript of the petitioner's Superior Court trial, the master filed a report in which he discussed several courses of action open to the court, but ultimately recommended that the Superior Court judgments be affirmed. A single Justice confirmed the master's report. The matter was argued before a single Justice. After a review of the record, the master's report and the transcript of the trial, the single Justice concluded that an appeal would be futile, and directed the entry of judgment affirming the Superior Court judgment of conviction. The petitioner appealed to the full court pursuant to Mass. R. A. P. 3, 365 Mass. 845 (1974). We affirm the single Justice's denial of the reinstatement of the petitioner's appellate rights.

The findings of fact made by the master can be stated briefly. The petitioner was indicted for assault and battery, assault with intent to rape, and breaking and entering with the intent to commit a felony. The petitioner retained counsel to represent him at his jury trial which commenced on March 20, 1974. On the following day, the jury returned a verdict of guilty on each of the indictments. Thereafter, the petitioner's motion, which had been taken under advisement by the trial Judge, that the trial be subject to the provisions of G. L. c. 278, §§ 33A-33G, was denied. The petitioner was sentenced to the Massachusetts Correctional Institution at Walpole for terms of six to ten years on the convictions for assault with intent to rape and breaking and entering with intent to commit a felony, the terms to run concurrently. The conviction for assault and battery was placed on file.

After the guilty verdicts were returned, the petitioner was told by his counsel that relief from the adverse judgments would depend completely on the discovery of evidence that would cast doubt on the credibility of the Commonwealth's witnesses. Counsel interviewed several relatives of the petitioner in an attempt to obtain new evidence, but his endeavor was unsuccessful. He reported this failure to the petitioner in May, 1974. Counsel next met with the petitioner sometime in September, 1974. At this conference, counsel for the first time provided the petitioner with a general explanation of appellate review. On October 18, 1974, during a conference held prior to the petitioner's trial on other charges, counsel informed the petitioner that he had not sought appellate review of the March 21 convictions. The petitioner appeared in the Superior Court, Suffolk County, with counsel on October 21, 1974, and submitted a pro se motion requesting that the court discharge his attorney. Thereupon, counsel made an oral motion asking to be permitted to withdraw voluntarily as counsel. Counsel's motion was allowed with the petitioner's consent. The court appointed the Massachusetts Defenders Committee to represent the petitioner.

The master's findings indicate that counsel knew the petitioner was dissatisfied with the verdicts, *fn1 but in good faith believed (a) that any appellate review would be unsuccessful, and (b) that the only hope of relief from the verdicts would be the discovery of new evidence. Counsel, however, neglected to communicate to the petitioner his view that appellate review by a bill of exceptions would be futile. During the period when a bill of exceptions might be timely filed, counsel did not discuss with the petitioner the possibility of appellate review or explain to him the procedural requisites for obtaining such review. *fn2 Based on the evidence presented, the master was "not convinced that [the petitioner] directed his attention in any specific way to the problem of appellate review or was caused to do so by ."

The right of a criminal defendant to seek appellate review of a judgment of conviction rendered by the Superior Court is secured by statute. See, e.g., G. L. c. 278, §§ 28, 31; c. 211A, § 10. Where, as in the present situation, the Superior Court trial has not been made subject to the more commonly employed procedure provided by G. L. c. 278, §§ 33A-33G, a defendant may seek appellate review by filing a bill of exceptions in the Superior Court within twenty days after the verdict or judgment has been entered. G. L. c. 278, § 31. See generally K.B. Smith, Criminal Practice and Procedure §§ 1204-1219 (1970). If, however, a bill of exceptions is not filed within twenty days or during an extended period allowed by the court, the opportunity to seek appellate review by a bill of exceptions is lost. Commonwealth v. Hamblen, 352 Mass. 438, 445-446 (1967).

No bill of exceptions was seasonably filed subsequent to the petitioner's convictions. The petitioner contends that the resulting dissipation of his appellate rights was caused by counsel's failure to inform him of his statutory right to appellate review, and that this oversight constituted ineffective assistance of counsel.

Before turning to the petitioner's claim that he is entitled to a late appeal regardless of the likelihood of its success, it is appropriate to consider whether a defendant must be informed by retained or appointed counsel of his statutory right to appeal.

The failure of the court-appointed counsel to prosecute an appeal is clearly a per se deprivation of the right to counsel unless the defendant waives the appeal or counsel complies with the procedures for withdrawal set forth in Anders v. California, 386 U.S. 738 (1967). See Wilbur v. Maine, 421 F.2d 1327, 1329 (1st Cir. 1970). Some courts, drawing a distinction between privately retained counsel and court-appointed counsel, hold retained counsel to a less severe standard. United States ex rel. O'Brien v. Maroney, 423 F.2d 865 (3d Cir. 1970). Hendrickson v. Overlade, 131 F. Supp. 561 (N.D. Ind. 1955). Among the rationales on which these courts rely is that, unless retained counsel's conduct was known by responsible officials in the judicial system, the State action requirement of the Fourteenth Amendment to the United States Constitution is not satisfied. Conversely, other courts, relying either on the Sixth Amendment guarantee of the right to assistance of counsel or on the due process clause of the Fourteenth Amendment, have found constitutional error when the incompetence of retained counsel results in the forfeiture of a defendant's appellate rights, regardless of the degree of official involvement. United States ex rel. Randazzo v. Follette, 444 F.2d 625 (2d Cir.), cert. denied, 404 U.S. 916 (1971). Goodwin v. Cardwell, 432 F.2d 521 (6th Cir. 1970). Shipman v. Gladden, 253 Ore. 192 (1969). These courts reason that inadequate representation by retained counsel during the post-conviction ...

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