Heard: October 4, 2019.
Indictments found and returned in the Superior Court
Department on July 3, 1991. A postconviction motion for
forensic testing, filed on December 15, 2017, was considered
by Timothy Q. Feeley, J., and a motion to vacate, filed on
September 19, 2018, also was considered by him.
Michael A. Nam-Krane for the defendant.
Kenneth E. Steinfield, Assistant District Attorney, for the
Neyman, Shin, & McDonough, JJ.
consider whether the failure to comply with the statutorily
prescribed deadline for filing a notice of appeal under G. L.
c. 278A, § 18,  precludes consideration of the merits
of the present appeal. Because the explicit thirty-day
deadline for filing the notice of appeal under the statute is
a jurisdictional requirement, we must dismiss the appeal as
Trial and subsequent plea.
April 17, 1992, a Superior Court jury convicted the
defendant, Pedro Claudio, Jr., of murder in the first degree
by reason of felonymurder, and breaking and entering a
dwelling in the nighttime with intent to commit a felony and
assaulting a person lawfully therein. In 1994, the Supreme
Judicial Court reversed the convictions and ordered a new
trial because of "omissions in the jury instructions
concerning joint venture and the elements of the underlying
felony." Commonwealth v. Claudio, 418 Mass.
103, 104 (1994) .
a remand to the Superior Court, the defendant pleaded guilty
on August 16, 1995, pursuant to North Carolina v.
Alford, 400 U.S. 25 (1970), to murder in the second
degree, and breaking and entering a dwelling in the nighttime
with intent to commit a felony and assaulting a person
lawfully therein. As stated in the prosecutor's
recitation of facts during the plea colloquy, the plea was
predicated on joint venture.
and 2004, the defendant filed two motions to withdraw his
guilty plea, contending that his plea was not knowing and
voluntary and that he received ineffective assistance of
counsel. A Superior Court judge denied both motions. In 2010,
the defendant filed yet another motion to withdraw his guilty
plea, again contending that his plea was not knowing and
voluntary. After the same Superior Court judge denied the
2010 motion, the defendant appealed the denial to this court.
In an unpublished decision issued pursuant to our rule 1:28,
a panel of this court affirmed the order denying the motion.
Commonwealth v. Claudio, 83 Mass.App.Ct. 1108
December 15, 2017, the defendant filed a "Motion for an
Evidentiary Hearing Under G. L. c. 278A and Necessary
Discovery," seeking forensic testing of certain trial
exhibits that would purportedly "reveal results material
to the identification of the perpetrator of the murder in
this case." On December 29, 2017, a Superior Court judge
issued a written decision denying the motion, "without
prejudice to a demonstration that DNA testing has the
potential to result in evidence that is material to [the
defendant's] identification as a joint venture
perpetrator." The defendant filed a motion for
reconsideration on February 7, 2018, which the same judge