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White v. Commonwealth

Supreme Judicial Court of Massachusetts

April 23, 2018

RAYMOND WHITE
v.
COMMONWEALTH.

         Supreme Judicial Court, Superintendence of inferior courts. Practice, Criminal, Appeal, Capital case. Constitutional Law, Appeal.

          Kathryn E. Leary, Assistant District Attorney, for the Commonwealth.

          Richard L. Goldman for the petitioner.

         In 1972, Raymond White and a codefendant, James Hall, were each convicted of two counts of murder in the first degree and one count of armed robbery. This court affirmed Hall's convictions after his direct appeal. See Commonwealth v. Hall, 369 Mass. 715 (1976). White's direct appeal was never properly perfected, however, although he did at various times make efforts toward that end, sometimes pro se and sometimes represented by counsel. Among other things, his counsel filed a petition with a single justice of this court for late filing of an assignment of errors and late entry of the appeal in October, 1974, which was allowed. But it appears that the appeal was never actually entered, and that no further action was taken to prosecute the appeal for an additional eighteen years when, in October, 1992, White, through new counsel, filed a motion in the county court seeking an order directing the Superior Court clerk to transmit the record to this court so that he could pursue his direct appeal. The Commonwealth opposed the motion, which a single justice ultimately denied after a hearing, in 1994.

         Then, in July, 2014, White filed, again with a single justice, a pro se motion for leave to file a late notice of appeal, and, in September, 2014, a pro se petition pursuant to G. L. c. 211, § 3, to reinstate his direct appeal. Counsel was appointed to represent White on these matters, and, after further proceedings and a hearing, the single justice eventually allowed White's petition to reinstate his direct appeal in December, 2016. She also allowed his motions to file a late notice of appeal and to appoint appellate counsel for purposes of the reinstated direct appeal. Finally, she ordered the Superior Court to assemble the record from the underlying prosecution and to make it available to this court for determination of the reinstated appeal.

         The Commonwealth now appeals from the judgment of the single justice reinstating the direct appeal and from her related orders. We reverse.

         We agree with the basic premise of the single justice's decision, i.e., that if the defendant was deprived of his right to pursue a direct appeal as a result of the ineffective assistance of his trial or appellate counsel in failing to preserve and perfect that right, then he is entitled to a remedy. See Commonwealth v. Frank, 425 Mass. 182 (1997); Commonwealth v. Cowie, 404 Mass. 119 (1989); Commonwealth v. George, 404 Mass. 1002 (1989) . See also Evitts v. Lucey, 469 U.S. 387 (1985). We disagree with the single justice, however, as to her choice of the appropriate remedy in these circumstances. The single justice was of the view that reinstating the direct appeal -- such that the issues would be considered in the first instance by this court pursuant to G. L. c. 278, § 33E -- was the best course. We agree with the Commonwealth that White has a constitutionally adequate alternative that better fits these circumstances. Specifically, he can file a motion for a new trial in the Superior Court pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), have his issues considered on the substantive merits in that context, and appeal to this court in the event his motion is denied.[1]

         In Cowie, 404 Mass. at 121, we considered whether a motion for a new trial pursuant to rule 30 (b) is a constitutionally adequate substitute for the right to a direct appeal that has been lost. We held that it is. That case involved a defendant who had been convicted of armed assault with intent to kill and assault and battery by means of a dangerous weapon. Id. at 120. The defendant allegedly lost his right to a direct appeal due to the ineffective assistance of his trial counsel, who failed to file a timely notice of appeal. Id. at 121. We held:

"[P]ostconviction attack on [a] judgment through a motion under rule 30 (b) fully accords with due process as a remedy for the defendant's frustrated right of appeal. Rule 30 (b) does not contain a time limitation, but its application permits examination of the claimed errors to determine whether the defendant was deprived of any constitutionally protected rights by his failure to appeal. If the judge denies the motion for a new trial, then the defendant may appeal that denial and thus obtain appellate review of any issue that would have afforded the defendant relief had his appeal been timely filed. Limiting a defendant to the postconviction remedy contained in rule 30 (b), coupled with the right of appellate review of an adverse ruling thereon, does not violate the defendant's due process rights." (Footnote omitted.)

Id. at 122-123, and cases cited.

         Although the Cowie case did not involve a conviction of murder in the first degree, the same general reasoning applies here. The fact that this is a case involving murder in the first degree murder and that White, had his right to a direct appeal not been lost, would have been entitled to plenary review pursuant to G. L. c. 278, § 33E, does, however, require us to add certain protections to ensure that this procedure affords him a truly adequate substitute for a direct appeal. We describe those additional protections in greater detail below.

         In Frank, 425 Mass. at 184-185, we again considered the options for a defendant who lost his right to a direct appeal as a result of the ineffective assistance of counsel. The appeal in that case had been timely noticed and entered in the appellate court, but it was dismissed for failure to prosecute after the defendant's appellate counsel failed to file a brief. Id. at 183. After the appeal had been dismissed, the defendant filed a motion for a new trial in the trial court, pursuant to rule 30 (b), as prescribed by the Cowie decision. He filed the motion without the benefit of counsel, and specifically requested that counsel be appointed for him. Id. at 182. The trial judge summarily denied the motion without appointing counsel. Id. The case was before us on the defendant's appeal from the denial of his motion for a new trial. The court was thus faced with the question of how to proceed in those particular circumstances.

         The defendant in the Frank case clearly did not receive an adequate substitute for his lost direct appeal, as envisioned by the Cowie decision, because he was not afforded counsel to represent him on his motion for a new trial, whereas, on a direct appeal, he would have had an indisputable constitutional right to counsel. We ordered that new counsel be appointed for him, and we gave him two choices. We stated that the defendant "may wish to press his claims by prosecuting the appeal ... or by a motion for a new trial if his claims might better be developed in such a setting, or both." Frank, 425 Mass. at 185. The Frank case does not stand for the proposition that a defendant will always have the option of proceeding with a reinstated direct appeal. It is simply an illustration of one circumstance where the reinstatement of a direct appeal would be appropriate. The period of time between the defendant's lost appeal and our decision in that case was relatively short --three years; the claim of ineffective assistance of counsel resulting in the loss of his direct appeal was "credible" and "unrebutted, " the Commonwealth itself having described his counsel's neglect as "indefensible"; and the defendant had already attempted to pursue a remedial motion for a new trial but had been rebuffed. Id. at 182-183.

         Here, by contrast, the length of time that has passed since White's trial (and the loss of his right to a direct appeal) is much longer -- forty-five years. Moreover, it has not yet been definitively adjudicated that White's loss of his direct appeal was in fact due to any ineffective assistance of his counsel.[2] And finally, White has not yet attempted to rectify the situation through a motion for a new trial. The better course in these circumstances is for White to proceed in the first instance by a motion for a new trial in the trial court. This approach has several advantages over a reinstated direct appeal in the first instance. First, it will allow for a full development of the factual record as to any claims that White wishes to pursue, including his claim that the loss of his right to an appeal was due to the ineffective assistance of counsel. Second, it will permit the trial court judge to make a definitive ruling on the ineffectiveness claim. Third, it will permit the parties and the judge to hone legal issues that ...


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