483 Mass. 1011

November 13, 2019


Practice, Criminal, Capital case, Postconviction relief, Appeal, Dismissal.

The defendant, Richard S. Freiberg, was convicted of murder in the first degree in 1987. This court affirmed the conviction. See Commonwealth v. Freiberg, 405 Mass. 282, 284 (1989). In January 2019, the defendant filed his fifth motion in the Superior Court seeking a new trial. [Note 1] A judge in that court denied the motion, and the defendant then applied to a single justice of this court for leave to appeal from the denial of his motion, pursuant to the gatekeeper provision of G. L. c. 278, § 33E. The single justice denied the application, concluding that the application did not raise a new and substantial question. The defendant appeals from the single justice's denial of his application. The Commonwealth has moved to dismiss the appeal. [Note 2]

The appeal must be dismissed because the single justice's denial of a gatekeeper application, under G. L. c. 278, § 33E, is final and unreviewable. See Zagranski v. Commonwealth, 477 Mass. 1028, 1029 (2017). "A single justice, acting as a gatekeeper pursuant to G. L. c. 278, § 33E, may allow an appeal to the full court to proceed under that statute if the appeal presents a 'new and substantial' question." Commonwealth v. Anderson, 482 Mass. 1027, 1027 (2019), citing Commonwealth v. Gunter, 459 Mass. 480, 487, cert. denied, 565 U.S. 868 (2011). "If the appeal fails on either count, and the single justice denies the application, that decision 'is final and unreviewable.'" Anderson, supra, quoting Commonwealth v. Gunter, 456 Mass. 1017, 1017 (2010).

Appeal dismissed.

Richard S. Freiberg, pro se.

Julianne Campbell, Assistant District Attorney, for the Commonwealth.


[Note 1] The defendant's four previous motions for postconviction relief were denied. This court affirmed the denial of the first motion for a new trial. See Commonwealth v. Freiberg, 405 Mass. 282 (1989). His applications to a single justice for leave to appeal from the denials of the remaining motions, pursuant to G. L. c. 278, § 33E, were denied.

[Note 2] The defendant's request that counsel be appointed for purposes of the appeal is denied.


483 Mass. 1011

November 21, 2019


Supreme Judicial

Page 1012

Court, Superintendence of inferior courts. Practice, Criminal, Execution of sentence, Stay of proceedings.

The petitioner, Roy Goodwin, appeals from a judgment of a single justice of this court denying his petition pursuant to G. L. c. 211, § 3, in which he sought a stay of execution of sentence pending appeal. We affirm.

A Superior Court jury convicted Goodwin of numerous counts of unlawful possession of a large capacity feeding device, in violation of G. L. c. 269, § 10 (m), as well as several other crimes. The trial judge sentenced him to concurrent sentences of from one to two and one-half years on the large capacity feeding device convictions and to three years' probation on the other convictions. Goodwin filed a notice of appeal the same day that he was sentenced, February 14, 2019. He subsequently filed a motion for clarification, which the judge allowed on March 29, 2019 and a motion to revise or revoke sentence, which the judge denied on April 17, 2019. Goodwin then filed his petition seeking to stay the execution of sentence in the county court on April 29, 2019, which the single justice denied on June 17, 2019.

Goodwin has now filed what appears to be a memorandum and appendix pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), but he is not challenging an interlocutory ruling of the trial court. Although rule 2:21 does not apply here, it is clear that Goodwin is not entitled to review pursuant to G. L. c. 211, § 3, because he has an adequate alternative remedy. The proper place for Goodwin to seek a stay of execution of his sentence, pursuant to Mass. R. Crim. P. 31, as appearing in 454 Mass. 1501 (2009), and Mass. R. A. P. 6 (b), as appearing in 481 Mass. 1608 (2019), is, in the first instance, in the trial court and, if such motion is denied, with a single justice of the court in which the direct appeal is to be heard, in this case, the Appeals Court. [Note 1] In point of fact, after the single justice denied Goodwin's G. L. c. 211, § 3, petition, Goodwin filed, in the trial court, a motion for a stay of execution of sentence, on July 15, 2019. After the trial judge denied the motion, Goodwin filed a motion to stay with a single justice of the Appeals Court, on July 31, 2019. The single justice denied the motion (and on Goodwin's motion for reconsideration, again denied the stay), and Goodwin has now appealed, as is his right pursuant to Mass. R. A. P. 6 (b) (3), to a panel of the Appeals Court. [Note 2]

Page 1013

The single justice did not err or abuse her 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.

Roy Goodwin, pro se.


[Note 1] Rule 6 (b) (1) of the Massachusetts Rules of Appellate Procedure provides in relevant part:

"In criminal cases, an application for a stay of execution of a sentence pending appeal must ordinarily be made in the first instance in the lower court. A motion for such relief may be made to the single justice of the appellate court to which the appeal is being taken, but the motion shall show that application to the lower court for the relief sought is not practicable, or that the lower court has previously denied an application for a stay or has failed to afford the relief which the applicant requested with the reasons given by the lower court for its action."

[Note 2] We note, as well, that although Goodwin appears in this court pro se, he was represented by counsel at trial and is represented by counsel on appeal. (Indeed, his counsel filed the motions to stay execution of sentence in the trial court and, subsequently, the Appeals Court.) Goodwin does not have a right to "hybrid" representation, in part by counsel and in part pro se, and, where he is represented by counsel, we are under no obligation to entertain his pro se filings. See, e.g., Commonwealth v. Molhino, 411 Mass. 149, 152-153 (1991). See also Commonwealth v. Rodgers, 448 Mass. 538, 543 (2007) ("defendant acknowledges that, while he was still represented by counsel, the court was entitled to ignore [his] pro se filings").