Opinion
No. 11–P–1814.
2012-10-17
COMMONWEALTH v. Paul J. FLYNN.
By the Court (GRASSO, KANTROWITZ & GRAHAM, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Paul J. Flynn, was convicted of trafficking Oxycontin, possession of “ecstasy,” a school zone violation (which later was set aside by the trial judge), and possession of a firearm without a firearm identification (FID) card. He appeals, alleging error in the denial of his motion for a new trial due to (1) ineffective assistance of counsel, and (2) failure to notify him of his right to appeal. We affirm.
Motion for a new trial. The decision on a motion for a new trial “lies within the sound discretion of the judge and will not be reversed unless it is manifestly unjust or unless the trial was infected with prejudicial constitutional error.” Commonwealth v. Nieves, 429 Mass. 763, 770 (1999). When reviewing the denial of a motion for a new trial, the motion judge's conclusion will be examined only to determine whether there has been an abuse of discretion or other significant error of law. Commonwealth v. Grace, 397 Mass. 303, 307 (1986). Special deference is given to the action of a motion judge who was also the trial judge. Commonwealth v. Staines, 441 Mass. 521, 530 (2004).
Ineffective assistance. The burden of demonstrating ineffective assistance of counsel is on the defendant, who must show (1) that “counsel's conduct fell measurably below that which might be expected from an ordinary fallible lawyer; and (2) that this conduct likely deprived the defendant of an otherwise available, substantial ground of defense.” Commonwealth v. Hudson, 446 Mass. 709, 715 (2006), citing Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
The defendant's primary argument is that his failure to timely file a notice of appeal disallowed him from taking advantage of a subsequent Melendez–Diaz decision. See Melendez–Diaz v. Massachusetts, 557 U.S. 305 (2009).
A look at the time frame is significant. The defendant was convicted on January 11, 2008. As per rules 4(b), as amended, 431 Mass. 1601 (2000), and 14(b), as amended, 378 Mass. 939 (1979), of the Massachusetts Rules of Appellate Procedure, he had one year from that date to appeal. The case of Melendez–Diaz v. Massachusetts, 557 U.S. 305 (2009), upon which the defendant hangs his hat, was not decided until June 25, 2009, six months after the one-year time period to appeal ended. Having not raised the issue on appeal (indeed having not filed any appeal), and understandably so given that Commonwealth v. Verde, 444 Mass. 279 (2005), controlled at the time, he cannot be faulted given the then state of the law. His attempt to raise the issue collaterally, however, is foreclosed by Commonwealth v. Melendez–Diaz, 460 Mass. 238, 239–240 (2011).
We note that the Commonwealth filed, on July 23, 2008, a late notice of appeal concerning the posttrial allowance of the defendant's motion for a required finding of not guilty on the school zone conviction, which had been allowed on April 18, 2008. Our court affirmed that ruling in a decision dated February 3, 2010. Counsel was clearly effective in ascertaining the allowance of his motion in the trial court and its subsequent affirmance here.
Notice of his right to appeal. The judge did not abuse her discretion in finding no merit in the defendant's contention, supported only by his own affidavit, that he was not informed of his right to appeal his convictions and that he wanted to pursue an appeal. His argument is belied by his participation in the appellate process when the Commonwealth appealed the allowance of his posttrial motion for a required finding on the school zone conviction. That matter was argued by trial counsel and affirmed in this court. See Commonwealth v. Petetabella, 459 Mass. 177, 182–183 (2011).
Trial counsel did not submit an affidavit. See Commonwealth v. Lynch, 439 Mass. 532, 539 n.2 (2003) (“significant” that no affidavit from trial counsel submitted in connection with motion for new trial).
Furthermore, the defendant's past dealings with the criminal justice system is some indication of his familiarity with it. Lastly, during his trial, for which the defendant was presumably present, the judge indicated to counsel that “[t]o the extent the SJC wants to adopt [a] more liberal definition on appeal, your rights will be preserved.”
The judge did not abuse her discretion in denying the defendant's motion for a new trial. See id. at 181–182.
To the extent that we do not address any remaining claims, they have not been overlooked. Rather, after fully reviewing them, we find nothing that requires discussion. Department of Rev. v. Ryan R., 62 Mass.App.Ct. 380, 389 (2004).
For these reasons, as well as substantially those in the brief of the Commonwealth, we affirm.
Order denying motion for new trial affirmed.