John Aguiar appeals from an order of a single justice of this court denying his motion for stay of execution of sentence pending appeal. We affirm.
In October, 2008, a Superior Court jury returned ten verdicts of guilty of indecent assault and battery of two children under the age of fourteen years against Aguiar. He filed a timely notice of appeal as well as a motion to stay execution of his sentence pending appeal. The trial judge denied the motion. In March, 2009, Aguiar filed in the Appeals Court a motion to stay execution of sentence. A single justice of the Appeals Court denied the motion without a hearing. Aguiar sought reconsideration of the single justice's denial of his motion in August, 2009. The request for reconsideration was denied by a second single justice. Aguiar thereafter filed a motion for stay of execution of sentence in the county court, in September, 2009, which was denied by a single justice without a hearing.
Aguiar could have appealed from the decision of the first single justice of the Appeals Court to a panel of that court. See Sang Hoa Duong v. Commonwealth, 434 Mass. 1006 , 1008 (2001), citing Commonwealth v. Allen, 378 Mass. 489 , 497 (1979) ("where a stay has been denied by the trial judge and a single justice of the Appeals Court, the presumptive avenue for review is before a panel of the Appeals Court"). He did not do so, and we therefore "review summarily the decision of the single justice of this court for errors of law." Sang Hoa Duong v. Commonwealth, supra. See Christian v. Commonwealth, 446 Mass. 1003 , 1004 (2006). [Note 1] In denying Aguiar's motion, the single justice deferred to the decision of the trial judge and the two single justices of the Appeals Court. See Commonwealth v. Hodge (No. 1), 380 Mass. 851 , 855-856 (1980). We are satisfied, after reviewing the record, that the single justice did not abuse his discretion or otherwise err.
J.W. Carney, Jr., for the defendant.
Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth.
[Note 1] The rules governing stay of execution of sentence pending appeal, Mass. R. Crim. P. 31, 378 Mass. 902 (1979), and Mass. R. A. P. 6, as appearing in 378 Mass. 924 (1979), were revised effective October 1, 2009. 454 Mass. 1501 , 1601 (2009). Those amendments do not apply here, where the relevant proceedings occurred before that date. In the future, pursuant to Mass. R. A. P. 6, as appearing in 454 Mass. 1601 (2009), an application for a stay shall be filed in the appellate court to which the direct appeal is being taken. An order of a single justice of that court allowing or denying an application for a stay may be appealed, again to the appellate court where the appeal is pending, and any order by that appellate court "shall be final." Mass. R. A. P. 6 (b) (3).
John Baldwin appeals from a judgment of a single justice of this court denying his petition for relief pursuant to G. L. c. 211, § 3. We affirm.
Baldwin is the subject of a pending civil commitment proceeding in the Superior Court, pursuant to G. L. c. 123A, having pleaded guilty to various
sex offenses and having completed his criminal sentences. In March, 2006, he filed, in connection with his criminal case, a pro se motion "To Enforce Plea Agreement Entered Into By The Commonwealth," claiming that the Commonwealth's petition for civil commitment violated Baldwin's plea agreement. A judge in the Superior Court denied the motion, concluding that the matter was controlled by Commonwealth v. Cruz, 62 Mass. App. Ct. 610 (2004). Baldwin filed a timely notice of appeal and a request for the appointment of counsel. In May, 2006, counsel was appointed. Counsel did not pursue an appeal because he concluded that it would lack merit in light of the Cruz decision. Counsel did, however, file a motion for a new trial on Baldwin's behalf, raising different claims from those raised by Baldwin in his pro se motion. The motion for a new trial was denied, as was a motion for reconsideration. The Appeals Court affirmed those rulings. See Commonwealth v. Baldwin, 73 Mass. App. Ct. 1122 (2009). In connection with that appeal, Baldwin attempted to file a pro se brief addressing the denial of his motion to enforce the plea agreement, but his brief was not accepted. [Note 1] Thereafter, Baldwin filed a petition in the county court, pursuant to G. L. c. 211, § 3, requesting that the single justice order the Appeals Court to docket his appeal from the denial of his motion to enforce the plea agreement. The single justice denied the petition without a hearing.
Baldwin has filed a memorandum and appendix pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001). Although the rule does not technically apply because Baldwin is not seeking review of an "interlocutory ruling in the trial court," S.J.C. Rule 2:21 (1), the record before us shows that he had an adequate alternative to relief under G. L. c. 211, § 3. Concerning his attempt to appeal from the denial of his motion to enforce the plea agreement, it appears from the Superior Court docket that a record was never assembled and transmitted to the Appeals Court, and without the record having been assembled the case could not have been docketed in the Appeals Court. See Mass. R. A. P. 9, as amended, 437 Mass. 1602 (2002). [Note 2] The appropriate next step, in these circumstances, is for Baldwin to move in the Superior Court for an order "compelling the clerk to assemble the record, which would then permit his timely appeal to proceed in the normal course." Fernandez v. Commonwealth, 445 Mass. 1015 , 1016 (2005). In light of that available course, the single justice properly denied Baldwin's request to invoke this court's extraordinary superintendence power.
The case was submitted on the papers filed, accompanied by a memorandum of law.
John Baldwin, pro se.
[Note 1] In that brief, Baldwin argued, among other things, that Commonwealth v. Cruz, 62 Mass. App. Ct. 610 (2004), had been wrongly decided.
[Note 2] Baldwin claims that his counsel sent a letter to the Superior Court clerk, in September, 2008, explaining that Baldwin wished to pursue such an appeal pro se, and requesting that the court assemble the record for that appeal. There is no indication on the Superior Court docket, however, that Baldwin moved in the Superior Court for an order compelling the clerk to do so. See Keane v. Commonwealth, 439 Mass. 1002 , 1002 (2003), and cases cited.