Opinion
No. 16–P–88.
12-08-2016
COMMONWEALTH v. Rolando Sanchez JIMENEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In 1982, a Superior Court jury convicted the defendant of larceny of a motor vehicle and murder in the second degree (the killing of the police officer who had stopped the stolen vehicle in which the defendant and another had been riding). The following year, the judgments were affirmed on direct appeal. 17 Mass.App.Ct. 933 (1983). In 1989, the defendant, representing himself, filed a motion for new trial, which subsequently was superseded by a "supplemental" motion for new trial filed by his second appellate counsel. That motion was denied, and the order was affirmed. 35 Mass.App.Ct. 1116 (1993). In 2006, represented by a third appellate counsel, the defendant filed what was styled as a second motion for new trial. That motion was denied, as was a motion seeking reconsideration of the judge's ruling. Although the defendant appealed, that appeal eventually was dismissed for lack of prosecution.
In 2015, the defendant, representing himself, filed a motion seeking an order requiring the Commonwealth to provide him a transcript of his 1982 trial so that he could pursue another motion for new trial. A Superior Court judge denied that motion "without prejudice to renewal with a showing of any appellate issue that has not been addressed already and a showing of [defendant's] entitlement to appellate relief at this stage." Before us now is the defendant's appeal of that order.
Pursuant to Mass.R.Crim.P. 30(c)(5), as appearing in 435 Mass. 1501 (2001), a judge has "discretion to allow the defendant costs associated with the preparation and presentation of a motion under this rule." See Commonwealth v. Dubois, 451 Mass. 20, 33 (2008). The record reveals that those who prepared the defendant's direct appeal and subsequent collateral challenges (whether by him or his various attorneys) had possession of a copy of the 1982 transcript when they did so. It may well be that the defendant no longer has a copy of the transcript in his possession and that he has been unable to obtain one from his most recent appellate counsel (who apparently has been indefinitely suspended). However, we cannot reasonably say that the judge abused her discretion in denying the defendant's motion to compel production of the transcript. See L.L. v. Commonwealth, 470 Mass. 169, 185 n. 27 (2014) (characterizing abuse of discretion as " ‘a clear error of judgment in weighing’ the factors relevant to the decision" [citation omitted] ).
The defendant cites to Hardy v. United States, 375 U.S. 277, 282 (1964), for the proposition that an indigent defendant has the right to obtain a trial transcript for his appeal. However, Hardy involved a direct appeal.
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Order denying motion to compel transcript affirmed.