Opinion
No. 11–P–568.
2012-05-24
COMMONWEALTH v. Robert McCULLUM.
By the Court (COHEN, BROWN & FECTEAU, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Robert McCullum, was convicted of several drug-related offenses. He was also convicted on the basis of a second and subsequent drug offense. He now appeals from the order of a single justice of this court denying his renewed motion to reinstate his consolidated appeal and from the denial of his motion for reconsideration of that order.
I. Background. This case involves a long and drawn out dispute that spans many years. On March 31, 1998, the defendant was sentenced to serve concurrent terms of five to seven years in State prison for a series of drug-related offenses. The defendant appealed from the convictions. The defendant also filed a motion for a new trial, which was denied. On January 16, 2001, the Appeals Court consolidated the defendant's direct appeal with the appeal from the denial of his motion for a new trial. On October 29, 2001, the Appeals Court dismissed the defendant's appeal for lack of prosecution, pursuant to the Standing Order Concerning Dismissal of Appeals and Reports in All Cases for Lack of Prosecution (1982) (Standing Order 17A).
Some seven years and three months later, the defendant's motion to reinstate his consolidated appeal was allowed on the same day it was filed. However, upon the Commonwealth's motion for reconsideration, the panel reviewed the matter anew, and on February 25, 2009, vacated its order and denied the defendant's motion to reinstate without prejudice. The panel concluded that there were genuine issues of material fact as to whether the defendant had waived his appellate rights. Pursuant to Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001), the defendant filed a second motion for a new trial, in November, 2009, on the ground that the first appellate counsel provided ineffective assistance. An evidentiary hearing was held, and the motion judge (who had presided over the trial) denied the motion on August 19, 2010, and made findings. On January 18, 2011, the defendant renewed his motion in this court to reinstate his consolidated appeal. A single justice denied the motion. On March 18, 2011, the defendant filed a motion to reconsider the denial of the renewed motion to reinstate his consolidated appeal. The same single justice denied the motion. On April 13, the defendant filed a notice of appeal. The court consolidated the appeals from the two denials by the single justice into the instant appeal.
II. Discussion. The defendant argues that a single justice has no authority to decide a motion to reinstate an appeal. We disagree. Pursuant to Mass.R.A.P. 14(b), as amended, 378 Mass. 939 (1979), a panel or a single justice may for good cause shown reinstate an untimely appeal.
The defendant also refers to Mass.R.A.P. 15(c), 365 Mass. 860 (1974), to support his claim that the single justice may not dismiss or otherwise determine an appeal. However, the single justice did not commit error, because he had the authority to decide whether to reinstate the consolidated appeal.
The question here is not whether to allow an untimely appeal but rather whether to reinstate an appeal dismissed for lack of prosecution. The single justice properly exercised his power to deny the defendant's renewed motion to reinstate his consolidated appeal from his convictions and from the denial of his motion for a new trial.
“It is well settled that this court will not reverse an order of a single justice in the absence of an abuse of discretion or clear error of law.” Greco v. Suffolk Div. of the Probate & Family Ct. Dept., 418 Mass. 153, 156 (1994). See Commonwealth v. Nettis, 418 Mass. 715, 717 (1994). The record warrants no inference that the single justice's denial was “characterized by arbitrary determination, capricious disposition, whimsical thinking, or idiosyncratic choice.” New England Allbank for Sav. v. Rouleau, 28 Mass.App.Ct. 135, 144 (1989).
The single justice had before him the entire docket and the motion judge's findings and legal conclusions addressing whether the defendant had waived his appellate rights. Considering the evidence before him, the single justice could conclude in his discretion, based upon the underlying findings of the motion judge, that the defendant knowingly caused his appeal to be dismissed. Because, notwithstanding the advice of his counsel (Robert A. O'Meara), the defendant prevented his appeal from being perfected, this is among those cases “in which the loss of appellate rights was due to the deliberate and counseled choice of the defendant, and, in those cases, the defendant must abide by that choice.” Commonwealth v. Frank, 425 Mass. 182, 185 n. 2 (1997). Here, the defendant sought to be the master of his ship. The motion judge's findings show that the defendant was often ambiguous and contradictory in his instructions to appellate counsel. The defendant indicated that a brief should not be filed until he had an opportunity to review it, and continued to insist on his prior review, even when appellate counsel repeatedly advised him of the upcoming deadline. Compare id. at 182–183 (counsel provided no explanation for his failure to file a timely brief); Commonwealth v. Alvarez, 69 Mass.App.Ct. 438, 446–447 (2007) (further inquiry required because sufficient discrepancies within the record to substantiate defendant's claim that he involuntarily waived his right to appeal based on false and misleading advice of appellate counsel).
The motion judge explicitly found that it was “clear that (1) the defendant did not want the O'Meara brief to be filed, and (2) the defendant was well aware that he needed to file a motion to reinstate the appeal.” As distinguished from Alvarez and Frank, the defendant here was not deceived and knew of the potential consequence of his actions. In that regard, the defendant continued to navigate the appeals process on his own terms. While appellate counsel may not have been entirely free from fault, the loss of appellate rights lies squarely on the defendant's shoulders. The defendant was instructed that, because the appellate brief had not been filed by October 24, 2001, he should inform his new counsel to file a motion to reinstate promptly. That advice went unheeded.
The motion judge so opined.
In fact, the defendant attempted to remove the O'Meara brief from the docket on November 30, 2001.
However, because the brief was never submitted, there was nothing for the clerk's office to remove.
There is no question that the defendant was repeatedly on notice of the October 24, 2001, deadline. Standing Order 17A allots thirty days for a party to perfect the appeal after the notice of dismissal has been issued. The defendant, as stated in the single justice's summary of the facts, “did nothing for years.” The single justice did not abuse his discretion or otherwise err by concluding that the defendant's actions caused the loss of his appellate rights.
The defendant also argues that procedurally, the clerk's office violated Standing Order 17A by dismissing the defendant's appeal for lack of prosecution five days after the October 24 deadline. The case was entered on the docket as dismissed on October 29 instead of thirty days after the deadline, which would have been November 23, becoming final on December 7. This misstep is irrelevant, in any event, given that the defendant took no steps toward reinstatement of his appeal until April 28, 2003.
Orders denying motion for reinstatement of appeal and motion for reconsideration affirmed.