Home LARRY WHITAKER vs. COMMONWEALTH.

458 Mass. 1001

September 21, 2010.

Larry Whitaker appeals from a judgment of a single justice of this court denying relief under G. L. c. 211, § 3, from the denial of his motion for a new trial, by which he sought to withdraw his guilty pleas to various offenses. The case is before us pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), which requires Whitaker 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." Here, Whitaker had an adequate remedy in the ordinary appellate process, as an appeal from the denial of a motion for a new trial can be taken as of right to a panel of the Appeals Court. [Note 1], [Note 2] "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." Votta v. Police Dep't of Billerica, 444 Mass. 1001 , 1001 (2005). The single justice did not err or abuse his discretion in denying relief under G. L. c. 211, § 3.

Judgment affirmed.

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

Larry Whitaker, pro se.


FOOTNOTES

[Note 1] There is some suggestion in Whitaker's petition that he may have believed that he required leave from a single justice of this court to pursue such an appeal. If so, that is incorrect. Compare Mass. R. Crim. P. 30 (c) (8), as appearing in 435 Mass. 1501 (2001) (authorizing appeal as matter of right from ruling on motion for postconviction relief), with Mass. R. Crim. P. 15 (a) (2), as appearing in 422 Mass. 1501 (1996) (requiring leave of single justice for interlocutory appeal from ruling on motion to suppress).

[Note 2] The record before us indicates that Whitaker in fact filed a timely notice of appeal, but, for reasons that are not entirely clear, it appears that he withdrew the appeal after it was entered in the Appeals Court. At this point, he might seek to have his appeal reinstated, or he could seek leave from the Appeals Court to file a new notice of appeal late. See Mass. R. A. P. 14 (b), as amended, 378 Mass. 939 (1979).

Home JEDEDIAH MORENO vs. COMMONWEALTH.

458 Mass. 1001

September 21, 2010.

The petitioner, Jedediah Moreno, appeals from a judgment of a single justice of this court denying his petition pursuant to G. L. c. 211, § 3. We affirm.

Page 1002

Moreno was indicted in December, 2007, on charges of cocaine trafficking in violation of G. L. c. 94C, § 32E (b), and possession of cocaine with intent to distribute within a school zone in violation of G. L. c. 94C, § 32J. He filed, in the Superior Court, several motions for a hearing pursuant to Commonwealth v. Amral, 407 Mass. 511 (1990), and Franks v. Delaware, 438 U.S. 154 (1978). Although his initial motions were denied, a judge eventually held a Franks hearing in January, 2010, in connection with Moreno's motion to suppress evidence. [Note 1] After the hearing, the judge denied the motion. Then, in May, 2010, Moreno filed a renewed motion for a Franks hearing. The judge allowed the motion in part, and held an initial Amral hearing. After the hearing, the judge determined that Moreno had failed to make the necessary showing for a further hearing pursuant to the Franks case. Moreno thereafter filed his G. L. c. 211, § 3, petition in the county court. [Note 2]

The case is now before us pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001). Moreno had the burden to create a record before the single justice "showing both a substantial claim of violation of a substantive right and that the violation could not have been remedied in the normal course of a trial and appeal or by other available means." Gorod v. Tabachnick, 428 Mass. 1001 , 1001, cert. denied, 525 U.S. 1003 (1998). He has not met this burden. In his memorandum filed pursuant to rule 2:21, Moreno argues that review of the trial court's denial of his request for a Franks hearing cannot adequately be obtained on appeal because, if he "wait[s] until this is litigated on appeal and remanded for a Franks hearing," he may not be able to locate certain witnesses. Moreno did not raise the claim of the potential unavailability of witnesses in his G. L. c. 211, § 3, petition, and there was virtually nothing in the record before the single justice relevant to the claim. [Note 3] His attempt to develop the point now, before the full court, with material that he had not put before the single justice, is too late. Moreover, his argument is speculative and his assertions regarding potential unavailability of witnesses are insufficient in any event. Cf. Celester v. Commonwealth, 440 Mass. 1035 , 1036 (2004) ("vague and generalized suggestions" regarding availability of witnesses at later time do not demonstrate that review of trial court's denial of motion for funds for investigator cannot adequately be obtained on appeal).

The single justice did not err or abuse his discretion in denying relief pursuant to G. L. c. 211, § 3.

Judgment affirmed.

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

Jedediah Moreno, pro se.


FOOTNOTES

[Note 1] It does not appear, from the record, that the judge held a separate, preliminary hearing pursuant to Commonwealth v. Amral, 407 Mass. 511 (1990).

[Note 2] In the papers filed in the county court, Moreno stated that he was seeking leave pursuant to G. L. c. 211, § 3, and Mass. R. Crim. P. 15 (a) (2), as appearing in 422 Mass. 1501 (1996), to appeal from the denial of his request for a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978). In this court he presses only so much of the single justice's denial that relates to the G. L. c. 211, § 3, petition.

[Note 3] Moreno stated in his response to the Commonwealth's opposition to his G. L. c. 211, § 3, petition that if he had to "wait years before [his] case is reviewed and [he is] incarcerated" he "will almost certainly be unable to find these witnesses again." His burden to create a record was not met by this statement.