442 Mass. 1031

September 21, 2004

The Commonwealth appeals from a judgment of a single justice of this court denying its petition under G. L. c. 211, § 3. The appeal is before us on the Commonwealth's memorandum and appendix in accordance with S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001). We affirm.

The Commonwealth filed its petition in the county court after a judge in the District Court granted the defendant's motion to vacate his guilty plea. The defendant pleaded guilty to a narcotics offense in January, 1986. He moved to vacate the plea in March, 2004, on the ground, among others, that he had not received the so-called alien warnings set forth in G. L. c. 278, § 29D. The District Court judge granted the motion in April, 2004. [Note 1]

The defendant's motion to vacate his plea was, in its essence, a motion for a new trial pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). See K.B. Smith, Criminal Practice and Procedure §§ 1250-1251 (2d ed. 1983) ("A motion for a new trial is the appropriate device for attacking the validity of a guilty plea. Therefore, Mass. R. Crim. P., 30 controls and the motion should be brought under that Rule." [Footnotes omitted]). [Note 2] The Commonwealth had an absolute right under Mass. R. Crim. P. 30 (c) (8), as appearing in 435 Mass. 1501 (2001), to appeal immediately from the granting of that motion. H.J. Alperin & L.D. Shubow, Summary of Basic Law § 4.55 (3d ed. 1996) ("by court rule, the Commonwealth has an unconditional right to interlocutory review of an order allowing a motion for a new trial"). The single justice was correct to deny relief where the Commonwealth had this alternative remedy. It is not too late for the Commonwealth to obtain leave, if warranted, to enlarge the time for filing a notice of appeal. Mass. R. A. P. 14 (b), as amended, 378 Mass. 939 (1979). See Commonwealth v. White, 429 Mass. 258 , 262-265 (1999).

Judgment affirmed.

The case was submitted on the papers filed, accompanied by a memorandum of law.

John P. Zanini, Assistant District Attorney, for the Commonwealth.


[Note 1] The parties in their various filings speak in terms of a "plea" and "guilty plea." More precisely, the defendant admitted to sufficient facts and was found guilty in the bench session under the trial de novo system in effect at the time, was sentenced, and did not appeal to the jury session. The admission to sufficient facts in such circumstances was, for our purposes, the functional equivalent of a guilty plea. Commonwealth v. Mahadeo, 397 Mass. 314 , 316-317 (1986). Commonwealth v. Mele, 20 Mass. App. Ct. 958 , 958-959 (1985).

[Note 2] Indeed, the defendant's motion was entitled "Motion to Vacate and Request for New Trial," and the District Court docket entry reads, "Motion for new trial allowed."


442 Mass. 1031

October 1, 2004

William Restucci appeals from an order of a single justice of this court denying, without a hearing, relief in the nature of mandamus. Restucci sought

Page 1032

an order from the single justice compelling the Appeals Court to allow a motion for discovery, pursuant to Mass. R. Crim. P. 30 (c) (4), 378 Mass. 900 (1979), that he had filed in the first instance in the Appeals Court in an appeal then pending before that court from a Superior Court judge's denial of his motion for a new trial (to withdraw his guilty plea). A single justice of the Appeals Court previously had denied the discovery motion. In the alternative, Restucci sought, from the single justice of this court, an order permitting him to appeal from the order of a single justice of the Appeals Court to a panel of that court. [Note 1] Our review of the decision of the single justice of this court is limited to determining whether he committed an abuse of discretion or other error of law. See Levine v. Chief Justice of the Dist. Court Dep't of the Trial Court, 434 Mass. 1014 (2001); Hines, petitioner, 432 Mass. 1004 (2000); Forte v. Commonwealth, 429 Mass. 1019 , 1020 (1999). There was no error.

Mandamus "will not issue to direct a judicial officer to make a particular decision or to review, or reverse, a decision made by a judicial officer on an issue properly before him or her." Callahan v. Superior Court, 410 Mass. 1001 , 1001 (1991), and cases cited. The single justice therefore properly declined to compel the Appeals Court to allow Restucci's motion. See id. See also Stewart, petitioner, 411 Mass. 566 , 569 (1992) ("petitioner may not bring his rule 30 motion directly to this court, but rather must file it in the Superior Court"; "[h]is proper course now is to pursue his appeal from the denial of that motion in the Appeals Court").

Moreover, mandamus is "extraordinary and may be granted only to prevent a failure of justice in instances where there is no alternative remedy." Callahan v. Superior Court, supra, and cases cited. Rule 30 contemplates that motions for discovery in connection with a new trial motion be filed in the first instance in the trial court -- where that new trial motion is pending -- and not in an appellate court. Mass. R. Crim. P. 30, 378 Mass. 900 (1979), and as appearing in 435 Mass. 1501 (2001). No "failure of justice" is present in this case requiring extraordinary relief. See Stewart, petitioner, supra; McCastle, petitioner, 401 Mass. 105 , 107 (1987) ("the Legislature could fairly conclude that it is in the best interests of a defendant, as well as of the Commonwealth, that [a] rule 30 motion is heard at the trial court level").

The single justice's decision denying relief in the nature of mandamus is affirmed. So ordered.

The case was submitted on briefs.

William Restucci, pro se.


[Note 1] The underlying appeal has been decided and the order denying the motion for a new trial was affirmed. Commonwealth v. Restucci, 51 Mass. App. Ct. 1111 (2001).