Judicial Court, Superintendence of inferior courts.
Practice, Criminal, Appeal, Capital case.
Constitutional Law, Appeal.
Kathryn E. Leary, Assistant District Attorney, for the
Richard L. Goldman for the petitioner.
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.
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
Commonwealth now appeals from the judgment of the single
justice reinstating the direct appeal and from her related
orders. We reverse.
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
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.
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.
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.
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.
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. 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 ...