Opinion
No. 10–P–489.
2012-10-18
COMMONWEALTH v. Maurice BOLDEN.
By the Court (MEADE, SIKORA & WOLOHOJIAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in 1993, the defendant was convicted of a number of charges that arose from a home invasion in Agawam and other crimes in Springfield. Those convictions were affirmed on direct appeal in Commonwealth v. Bolden, 42 Mass.App.Ct. 1105 (1997). In 2007, the denial of the defendant's second motion for new trial was affirmed in Commonwealth v. Bolden, 68 Mass.App.Ct. 1111 (2007). In the instant appeal, the defendant appeals from the denial of a postconviction motion which sought clarification of a pretrial ruling on a 1993 motion to dismiss. We affirm.
The issue the defendant now raises could have been raised on direct appeal, or in his first two postconviction motions. Because the issue was known and available to him at that time, he has effectively waived it. See Pisa v. Commonwealth, 384 Mass. 362, 365–366 (1981); Fogarty v. Commonwealth, 406 Mass. 103, 107–108 (1989); Mass.R.Crim.P. 30(c)(2), as appearing in 435 Mass. 1501 (2001). In addition, the defendant has failed to provide this court with an adequate record that would permit review of the propriety of the judge's decision. Finally, the defendant has failed to establish how he was prejudiced by the judge's refusal to reconsider a 1993 order which dismissed one of his indictments.
Order dated March 4, 2010, denying postconviction motion affirmed.