Home SHANNON EWING vs. COMMONWEALTH.

448 Mass. 1012

February 12, 2007

Shannon Ewing appeals from a judgment of a single justice of this court denying his petition for relief under G. L. c. 211, § 3. We affirm.

Ewing was convicted of murder in the second degree, and his conviction was affirmed. Commonwealth v. Ewing, 30 Mass. App. Ct. 285 (1991). He has since filed two motions for a new trial, both of which were denied. His appeal from the denial of the first motion was dismissed for failure to file a timely brief. The denial of the second motion was affirmed in an unpublished memorandum and order, and we denied further appellate review. Commonwealth v. Ewing, 63 Mass. App. Ct. 1111 , S.C., 445 Mass. 1107 (2005), cert. denied, 126 S. Ct. 1440 (2006). Ewing then filed his petition to the single justice, in which he asked that the motion judge be ordered to grant the second motion. The case is before us pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), which requires Ewing to "set forth the reasons why review of the trial court decision cannot adequately be obtained on appeal from any final adverse judgment in the trial court or by other available means." He has not done so. Review of the denial of a motion for a new trial can readily be, and in this case was, obtained in the ordinary appellate process. Mass. R. Crim. P. 30 (c) (8), as appearing in 435 Mass. 1501 (2001). "Our general superintendence power under G. L. c. 211, § 3, is extraordinary and to be exercised sparingly, not as a substitute for the normal appellate process or merely to provide an additional layer of appellate review after the normal process has run its course." Cepulonis v. Commonwealth, 446 Mass. 1014 , 1014 (2006), quoting Votta v. Police Dep't of Billerica, 444 Mass. 1001 , 1001 (2005). The single justice neither abused his discretion nor committed any other error of law.

Judgment affirmed.

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

Shannon Ewing, pro se.

Home PO KEE WONG vs. BOSTON RETIREMENT BOARD.

448 Mass. 1012

February 13, 2007

Po Kee Wong appeals from both a judgment of a single justice of this court denying his petition for relief pursuant to G. L. c. 211, § 3, and the single justice's order denying his motion for reconsideration. We affirm.

Wong, a former Boston public school teacher, was denied certain employment

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credits by the Boston Retirement Board (board). Wong unsuccessfully challenged the board's decision before the division of administrative law appeals, the Contributory Retirement Appeal Board, and the Superior Court. He then sought to pursue an appeal in the Appeals Court but failed to timely docket the appeal. He moved for leave to docket the appeal late, but a single justice of the Appeals Court denied the motion. He then sought relief in the county court pursuant to G. L. c. 211, § 3, apparently requesting either that the Appeals Court be required to grant him leave to docket his appeal late, or that the single justice entertain his appeal on the merits. The single justice denied his petition as well as his motion for reconsideration.

Wong then filed a notice of appeal "according to Rule 2:21." See S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001). Although he is not challenging an interlocutory ruling of the trial court, and thus rule 2:21 technically does not apply, Wong cannot demonstrate that he lacked an adequate alternative to relief under G. L. c. 211, § 3. He could have appealed to a panel of the Appeals Court from the decision of the single justice of that court denying his motion for leave to docket his appeal late. See Maza v. Commonwealth, 423 Mass. 1006 (1996).

Judgment affirmed.

Order denying motion for reconsideration affirmed.

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

Po Kee Wong, pro se.