Opinion
No. 11–P–636.
2013-04-24
COMMONWEALTH v. Robert ALDRICH.
By the Court (KATZMANN, MEADE & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from the denial of his third motion for a new trial. On February 6, 2004, the defendant pleaded guilty to two counts of assault and battery on a police officer. The defendant filed motions for a new trial in July of 2004 and May of 2005. After the motions were denied, the defendant failed to appeal. The defendant filed his third motion for a new trial in February of 2010. The judge once again denied the defendant's motion. The defendant's notice of appeal was filed in April of 2010. We affirm. Discussion. 1. Scope of the appeal. While the defendant raises many issues in his appellate brief, we are limited to considering the claims raised in his third motion for a new trial. By failing to appeal from the denial of the earlier motions within the thirty-day period provided by the rules of appellate procedure, the defendant has waived appellate consideration of the issues raised in those motions. Mass.R.A.P. 4(b), as amended, 431 Mass. 1601 (2000). See Commonwealth v. White, 429 Mass. 258, 261 (1999). Throughout the course of the postconviction proceedings challenging his convictions, the defendant has argued that, in a variety of respects, he was denied effective assistance of counsel during the plea proceedings. See Hill v. Lockhart, 474 U.S. 52 (1985). In his third motion for a new trial, the defendant argues for the first time that he pleaded guilty only because defense counsel improperly advised him that he could not testify in his own defense due to his criminal history.
The docket number on the 2004 motion for new trial (0306CR3148) is apparently a scrivener's error. That charge was dismissed at the close of the defendant's plea hearing. See page 24 of the Commonwealth's record appendix. The judge's decision on the motion contains the correct docket number (0306CR3129). See page 31 of the Commonwealth's record appendix.
The defendant does not assert that he ever appealed from the denial of his first (2004) motion for new trial. He asserts that he did timely appeal from the denial of his second (2005) motion for new trial, but that the trial court clerk failed to docket his appeal.
We note that Mass.R.A.P. 14(b), as amended, 378 Mass. 939 (1979), allows for an appellate court to enlarge the time for a notice of appeal “for good cause shown.” However, under rule 14(b), an appellate court may not enlarge the time for filing a notice of appeal beyond one year from the date of the judgment or entry of the order that is the subject of the appeal. Ibid. Consequently, as the defendant's earlier motions for new trial were denied in 2004 and 2005, we cannot revisit the issues raised in the earlier motions, and we conclude that the defendant has waived appellate consideration of these issues. See Commonwealth v. White, 429 Mass. at 263.
In earlier motions for a new trial, the defendant argued, inter alia, that counsel incorrectly advised him that it was his burden to prove both that he did not have the intent to commit the alleged assault and battery, and that the police used excessive force against him. However, for the reasons noted above, we do not consider these arguments in the present appeal.
2. Present appeal. Given what we have said, we address only the defendant's argument that trial counsel provided ineffective assistance by erroneously advising the defendant that he could not testify in his own behalf due to his criminal record. However, the defendant is also procedurally barred from raising this claim. Under Mass.R.Crim.P. 30(c)(2), as appearing in 435 Mass. 1501 (2001), “[a]ll grounds for relief ... shall be raised by the defendant in the original or amended motion. Any grounds not so raised are waived unless the judge in the exercise of discretion permits them to be raised in a subsequent motion, or unless such grounds could not reasonably have been raised in the original or amended motion.” See Commonwealth v. Deeran, 397 Mass. 136, 138–139 (1986). Moreover, “[t]his preclusive principle has been held to limit review notwithstanding that the claimed errors may be of a constitutional dimension.” Commonwealth v. Sowell, 34 Mass.App.Ct. 229, 230 (1993).
As the defendant did not raise this particular claim of ineffective assistance of counsel in his first motion for a new trial, he cannot raise the claim for the first time in the present motion. The defendant could have “reasonably ... raised” this claim, and he has not presented this court with any reason as to why he did not raise the claim in his first motion for a new trial. Nor do we read the judge's indorsements on the second and third motions for new trial as having allowed the defendant to raise new issues in those motions. Accordingly, we conclude that the defendant has waived this claim.
For the same reason, even if, as the defendant asserts, the trial court clerk failed to docket his timely appeal from the denial of his second motion for new trial, consideration of the issues raised therein would be precluded because they were not raised in the first motion for new trial.
Order denying third motion for new trial affirmed.