473 Mass. 1016

December 11, 2015

Related Cases:

Supreme Judicial Court, Superintendence of inferior courts.

It appears from the sparse material before us, and from our review of the trial court docket, that the petitioner was convicted in the District Court in August, 2013, of four counts of violating an abuse prevention order. He was sentenced in November, 2013. His direct appeal was entered in the Appeals Court in September, 2014, and is currently pending there. The petitioner is represented by counsel in that appeal.

In May, 2015, the petitioner, acting on his own, filed a pleading in the county court entitled "Petition to Remand Sentence for Resentencing." He averred in a supporting affidavit, among other things, that his sentences were "unduly harsh" and "much [too] severe all facts considered." He also averred that his conviction was the product of ineffective assistance of his trial counsel. He asked that a single justice of this court "review and reconsider the sentence[s]." His petition was treated by the single justice as a petition pursuant to G. L. c. 211, § 3, and denied without a hearing. He now appeals from the judgment of the single justice.

The single justice neither erred nor abused her discretion in denying the petition. A defendant in these circumstances can challenge the legality of his or her sentence, and the constitutional effectiveness of his or her counsel, through the normal course of postconviction motions and appeals. Beyond that, a defendant is not entitled to the extraordinary intervention of this court to vacate or change a sentence that is legal but that the defendant feels is too harsh.

Judgment affirmed.

The case was submitted on briefs.

Robert M. Souza, pro se.


473 Mass. 1016

December 31, 2015

Court Below: District Court, Cambridge Division

Supreme Judicial Court, Superintendence of inferior courts.

The petitioner, Kaveh Afrasiabi, is the defendant in a criminal case in the Cambridge Division of the District Court Department in which he is charged with a single count of criminal harassment in violation of G. L. c. 265, § 43A (a). He filed a motion to dismiss the complaint, alleging, among other things, that the clerkmagistrate heard and considered perjured testimony at the show cause hearing and issued the complaint on that basis. [Note 1] A judge in the District Court denied the motion. The petitioner then filed a pleading in the county court seeking relief pursuant to G. L. c. 211, § 3, which a single justice of this court denied without a hearing. The petitioner now appeals to the full court from the judgment of the single justice.

Page 1017

This is the third time that this petitioner has pursued an appeal to the full court that is subject to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), but has failed to comply with the rule. See Afrasiabi v. Commonwealth, 466 Mass. 1007 , 1007 (2013); Afrasiabi v. Rooney, 432 Mass. 1006 , 1007 (2000). The rule requires an appellant to file a memorandum setting 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." The petitioner has not filed such a memorandum; instead, he simply refiled in the full court the exact same pleading he filed in the county court -- with the original date crossed out and a new date written in -- which completely fails to address the single issue identified by the rule. "Failure to comply with the rule in a case where it applies is a separate and sufficient reason for us to decline to disturb the single justice's judgment." Rasten v. Northeastern Univ., 432 Mass. 1003 , 1003 (2000), cert. denied, 531 U.S. 1168 (2001), cited with approval in Afrasiabi v. Rooney, supra.

The petitioner fares no better on the merits. Here, as in the petitioner's two previous cases, the single justice properly declined to employ the court's extraordinary power of general superintendence because the petitioner had an adequate alternative remedy. Specifically, he can challenge the District Court's denial of his motion to dismiss in a direct appeal to the Appeals Court if he is convicted. See Soucy v. Commonwealth, 470 Mass. 1025 , 1025-1026 (2015); Jackson v. Commonwealth, 437 Mass. 1008 , 1009 (2002).

Judgment affirmed.

Kaveh L. Afrasiabi, pro se, submitted a brief.


[Note 1] The petitioner's motion in the District Court also sought a new show cause hearing before the clerk-magistrate. But see Commonwealth v. DiBennadetto, 436 Mass. 310 , 313 (2002) (holding that motion to dismiss, and not new show cause hearing, is only appropriate remedy once complaint is issued).