Opinion
No. 11–P–1003.
2012-07-2
COMMONWEALTH v. Ramon GARCIA.
By the Court (MILLS, FECTEAU & HANLON, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted of possession with intent to distribute a Class A substance (heroin), as a second or subsequent offender, G.L. c. 94C, § 32( b ). On February 6, 2007, this court affirmed his conviction on direct appeal, and his petition for further appellate review was denied on March 29, 2007. The rescript was received in Superior Court on April 24, 2007. The instant motion for a new trial was filed on March 31, 2011, claiming the benefit of Melendez–Diaz v. Commonwealth, 129 S.Ct. 2527 (2009). The judge denied the motion on the authority of Commonwealth v. Arnaut, 78 Mass.App.Ct. 906, 907 (2011), ruling that this defendant was not entitled to the retroactive application of Melendez–Diaz v. Commonwealth, supra. See Commonwealth v. Melendez–Diaz, 460 Mass. 238 (2011). The judge was correct.
Order denying motion for new trial affirmed.