COMMONWEALTH vs. PEDRO CLAUDIO, JR.

NEYMAN, J. We consider whether the failure to comply with the statutorily prescribed deadline for filing a notice of appeal under G. L. c. 278A, § 18, [Note 1] 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 untimely.

Background. 1. Trial and subsequent plea. On April 17, 1992, a Superior Court jury convicted the defendant, Pedro Claudio, Jr., of murder in the first degree by reason of felony-murder, and breaking and entering a dwelling in the nighttime with intent to

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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). [Note 2]

Following 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.

2. Postconviction motions. In 1997 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

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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 In an unpublished decision issued pursuant to our rule 1:28, a panel of this court affirmed the order denying the motion.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 (2013).

On 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 denied.

3. Notice of appeal. On March 28, 2018, the defendant filed in the Superior Court a "Motion to File Notice of Appeal Late" pursuant to Mass. R. A. P. 4 (c), as amended, 378 Mass. 928 (1979), [Note 3] accompanied by an affidavit of counsel asking the Superior Court to "excuse his neglect to timely file the notice of appeal" from the orders dated December 29, 2017, and February 7, 2018. On May 3, 2018, a Superior Court judge allowed the motion [Note 4] and the notice of appeal entered on the docket "nunc pro tunc as of [February 12, 2018]." The case entered in the Appeals Court on May 18, 2018.

On May 25, 2018, this court issued an order stating, in relevant part, that the Superior Court "may have been without jurisdiction to grant the motion to extend time for filing the notice of appeal on May 3, 2018, from the December and February orders," and ordering the defendant "to show cause, in writing, why jurisdiction over this appeal is proper, or file a motion for voluntary dismissal pursuant to Mass. R. [A. P.] 29 (b)[, as amended, 378 Mass. 943 (1979)]." The order also stated that the defendant "may

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[instead] file a motion . . . for review by a single justice to deem the notice of appeal filed on March 28, 2018 to be timely filed." On May 30, 2018, the defendant filed a "Motion to Deem Notice of Appeal Timely Filed." The next day, a single justice of this court referred the motion to the panel designated to decide the present appeal. On June 1, 2018, the defendant filed, pursuant to Mass. R. A. P. 14 (b), as amended, 378 Mass. 939 (1979), a "Motion to Single Justice to Enlarge Time to File Notice of Appeal and Not Refer Issue to Panel." On June 5, 2018, the single justice declined the invitation to reconsider the ruling, noting that "[t]he defendant has not cited -- nor have I found -- any authority for the proposition that Mass. R. [A.] P. 14 (b) allows the Single Justice to extend the deadline set by the Legislature in G. L. c. 278A, [§] 18. . . . That undecided question is best left, in my view, to a full panel after full briefing by all parties."

On August 14, 2018, this court granted the defendant leave to file a motion for new trial in the Superior Court and stayed the appeal. Rather than file a motion for new trial, the defendant filed in the Superior Court, on September 6, 2018, a "Motion to Vacate and Reimpose Denial of Motion for Evidentiary Hearing Under G. L. c. 278A" (motion to vacate). In support of the motion to vacate, counsel for the defendant filed an affidavit averring, inter alia, that (1) the notice of appeal from the denial of the G. L. c. 278A motion was not timely filed, and (2) he "was ineffective" in failing to preserve the defendant's appellate rights. On October 2, 2018, a Superior Court judge denied the motion to vacate, from which the defendant filed a notice of appeal on October 25, 2018. We consolidated the appeal from the order denying the motion to vacate with the belatedly filed appeal from the order denying the G. L. c. 278A motion.

Discussion. We begin with the plain language of the statute, G. L. c. 278A, § 18, which we construe according to its "common and approved usage." Commonwealth v. Scott, 464 Mass. 355, 358 (2013), quoting Opinion of the Justices, 313 Mass. 779, 782 (1943). General Laws c. 278A, § 18, authorizes a party to appeal an order denying a motion for forensic or scientific analysis, but mandates that "the moving party shall file a notice of appeal with the court within [thirty] days after the entry of the judgment." [Note 5] The statute's thirty-day filing deadline is clear and unambiguous,

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and the defendant does not argue otherwise.

In light of the mandatory language in G. L. c. 278A, § 18, the defendant needed to file the notice of appeal within thirty days. The defendant does not dispute that he did not do so as to either the order dated December 29, 2017, or the order denying reconsideration dated February 7, 2018. [Note 6] Nevertheless, he maintains that we have the authority to consider his substantive claims under G. L. c. 278A.

A statutory appeal period constitutes a jurisdictional prerequisite to a court's authority to consider any matter on appeal. See Friedman v. Board of Registration in Med., 414 Mass. 663, 665-666 (1993) (thirty-day filing requirement under G. L. c. 30A, § 14 [1], "is a jurisdictional requirement"); DeLucia v. Kfoury, 93 Mass. App. Ct. 166, 170 (2018) ("A timely notice of appeal is a jurisdictional prerequisite to our authority to consider any matter on appeal"). See also Nissan Motor Corp. in U.S.A. v. Commissioner of Revenue, 407 Mass. 153, 157 (1990) ("It has long been the law of this Commonwealth that, when a remedy is created by statute, and the time within which it may be availed of is one of the prescribed conditions for relief, failure to meet that time limit

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deprives a judicial body, court, or administrative appeals board of jurisdiction to hear the case"). Accordingly, where, as here, a party does not comply with a statutory deadline for filing a notice of appeal, the reviewing court has no subject matter jurisdiction over the case, and thus no authority [Note 7] to enlarge the appeal period. See Morales v. Appeals Court, 427 Mass. 1009, 1010 (1998) (Appeals Court had no authority to grant extension of time for filing appeal where petitioner failed to comply with statutory deadline set by G. L. c. 261, § 27D); Friedman, 414 Mass. at 666 ("Filing in the Supreme Judicial Court within thirty days for judicial review is a jurisdictional requirement and not susceptible to extension except in limited circumstances as provided in the statute"); DeLucia, 93 Mass. App. Ct. at 169 ("The appeal period, set by statute, cannot be enlarged"); Commonwealth v. Clark, 67 Mass. App. Ct. 832, 833 (2006) ("An explicit statutory appeal period cannot be extended in the court's discretion . . ."); Ben v. Schultz, 47 Mass. App. Ct. 808, 814-815 (1999) (Mass. R. A. P. 14 [b] did not allow enlargement of ten-day period set by G. L. c. 231, § 6G, to appeal from order denying motion to assess fees for frivolous case). Compare Cohen v. Board of Registration in Pharmacy, 347 Mass. 96, 99 (1964) ("where compliance with a step in a notice procedure is not controlled by the party, such compliance is not a jurisdictional requirement"). In such circumstances, the appeal must be dismissed. See Commonwealth v. De'Amicis, 450 Mass. 271, 280 (2007) (if appealing party "did not file his appeal within the seven-day period provided by [statute], it must be dismissed"); Morales, 427 Mass. at 1010 (Appeals Court correctly dismissed appeal where petitioner failed to comply with statutory deadline set by G. L. c. 261, § 27D); Clark, 67 Mass. App. Ct. at 833 (failing timely to file appeal in contravention of explicit statutory appeal period, "for whatever reason, must result in dismissal of the appeal"). See also Litton Business Sys., Inc. v. Commissioner of Revenue, 383 Mass. 619, 622 (1981) (appellate court "must take note of lack of jurisdiction whenever it appears, whether by suggestion of a party or otherwise").

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Faced with this longstanding principle, the defendant contends that we should "deem the . . . notice of appeal timely filed" to avoid ineffective assistance of counsel. More specifically, citing Commonwealth v. Stubbs, 15 Mass. App. Ct. 955, 955 (1983), he claims that (1) the failure to file a timely notice of appeal constitutes per se ineffective assistance of counsel, and (2) that failure requires that we "deem" the notice timely filed. We are not persuaded.

First, the defendant predicated his "Motion to Deem the Notice of Appeal Timely Filed," on Mass. R. A. P. 4 (c), [Note 8] and Mass. R. A. P. 14 (b). [Note 9] Although these rules authorize our trial and appellate courts to extend the time for filing a notice of appeal in specified circumstances, a rule of court cannot override a contrary statutory appeal period "when the manner and time for effective filing of an appeal are delineated in the statute." Friedman, 414 Mass. at 665. See Clark, 67 Mass. App. Ct. at 833 ("An explicit statutory appeal period cannot be extended in the court's discretion, nor even by contrary rule of court . . ."). See also Manzaro v. McCann,

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401 Mass. 880, 882 (1988) ("Appellate rule 4 [a] also states that a notice of appeal must be filed within the time limits prescribed by any applicable statute").

Second, according to the defendant's argument, any and all late filings (where counsel had been retained or appointed) would constitute ineffective assistance, and thus be deemed timely. Under such an approach, the exception would swallow the rule and render the G. L. c. 278A, § 18, requirement a nullity. Indeed, even if we were to accept the defendant's claim that the failure to timely file a notice of appeal would invariably satisfy the first prong of Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), it would not invariably satisfy the second or prejudice prong of the Saferian test. See note 10, infra. Moreover, the approach advocated by the defendant would violate the fundamental rule that a statute must be construed "so that effect is given to all its provisions, so that no part will be inoperative or superfluous." Camargo's Case, 479 Mass. 492, 498 (2018), quoting Bankers Life & Cas. Co. v. Commissioner of Ins., 427 Mass. 136, 140 (1998). [Note 10]

Finally, the defendant's reliance on Stubbs, 15 Mass. App. Ct. at 955, is unpersuasive. There, we held that upon a finding that defendant's counsel was ineffective for failing "to file in a timely manner, as he promised, a motion to revoke or revise sentence, the judge should vacate the sentence and reimpose it, thereby affording the defendant an opportunity to file timely a motion pursuant to Mass.R.Crim.P. 29(a) to revise the new sentence." Stubbs, supra. Stubbs involved the interpretation of a particular rule of court, whereas the present case hinges on an explicit statutory deadline. Therefore, Stubbs is inapposite. See Friedman, 414 Mass. at 665; Clark, 67 Mass. App. Ct. at 833.

In short, we lack jurisdiction to consider the merits of the present case, and we accordingly dismiss the appeal. Our conclusion notwithstanding, the defendant is not left without a remedy. As the Supreme Judicial Court recently stated, "when a moving party fails to satisfy the threshold requirements of chapter 278A, the moving party's motion is to be dismissed 'without prejudice.'" Commonwealth v. Johnson, 482 Mass. 830, 833 (2019), quoting

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G. L. c. 278A, § 3 (e). [Note 11] "This rule allows a moving party to raise in a chapter 278A motion the same issues he or she had raised in an earlier motion that was denied without a hearing." Johnson, supra. Accordingly, the defendant may file another G. L. c. 278A motion in the Superior Court. See id.; Commonwealth v. Wade, 467 Mass. 496, 500 n.7 (2014). [Note 12]

For the foregoing reasons, the appeal is dismissed as untimely. [Note 13]

So ordered.