Opinion
No. 12–P–216.
2013-02-25
COMMONWEALTH v. Sidney KILGORE.
By the Court (RAPOZA, C.J., KATZMANN & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is an appeal from an order of a single justice of this court allowing the defendant's motion to file a late notice of appeal. We affirm.
Background. On October 22, 2009, the defendant pleaded guilty to possession of a class D substance (subsequent offense) and possession of a class D substance with intent to distribute, and received straight probation. On February 15, 2011, a judge found that the defendant violated his probation and sentenced him to 162 days in the house of correction. The defendant failed to timely appeal the judge's determination. On March 24, 2011, the defendant, acting pro se, moved to extend the time for filing a motion to reconsider the probation revocation. In support thereof, he submitted an affidavit averring that his trial attorney failed to inform him that a motion to reconsider his probation revocation must be made within thirty days of the revocation order. The judge denied this motion on April 13, 2011. On January 13, 2012, pursuant to Mass.R.A.P. 14(b), as amended, 378 Mass. 939 (1979), the defendant moved to extend the time for filing a notice of appeal from the order revoking probation. On January 17, 2012, that motion was allowed. The same day, the Commonwealth filed an objection to the defendant's motion to enlarge the time to file a notice of appeal, arguing that the defendant failed to demonstrate good cause or raise meritorious issues for appellate review. This was treated as a motion for reconsideration, and upon reconsideration, the single justice vacated his original order and instructed the defendant to file a statement of meritorious appellate issues.
The defendant filed a response to the order of the single justice. He argued that evidence supporting the authentication of certain telephonic text messages, which the Commonwealth used to prove the defendant violated an abuse prevention order, was insufficient. Further, the defendant argued that he was never served, nor had knowledge of, the abuse prevention order, which was the subject of the probation revocation order. After considering the defendant's argument, the single justice granted his motion to extend the time for filing an appeal.
On February 1, 2012, the Commonwealth appealed the order of the single justice allowing the defendant to file a late notice of appeal. The Commonwealth sought to have the case remanded to the trial court, arguing that discrepancies in the affidavits submitted to the single justice created credibility issues that could only be resolved through an evidentiary hearing at the trial court level. After review of these affidavits and the motions by both parties, the single justice reaffirmed his decision to extend the period for filing an appeal of the probation revocation order.
The defendant submitted two affidavits to the single justice: his own affidavit and also that of his trial counsel. The defendant's affidavit stated that, immediately after the trial judge's probation revocation order, he requested that his trial counsel appeal the decision. The defendant further stated that upon learning of trial counsel's failure to appeal, he attempted to appeal through his pro se motion. The trial attorney disputed that the defendant requested that he file an appeal, but stated that he informed the defendant of his right to appeal and that “there were good grounds for an appeal” at least insofar as the probation revocation was based on violation of the abuse prevention order.
Discussion. On appeal, the Commonwealth argues that the single justice committed an abuse of discretion and error of law in allowing the defendant's motion without an evidentiary hearing to determine credibility issues. “[W]e review the action of the single justice for errors of law and, if none appear, for abuse of discretion.” Troy Indus., Inc. v. Samson Mfg. Corp., 76 Mass.App.Ct. 575, 581 (2010). The burden of showing abuse of discretion is heavy, and we look to see whether there was “arbitrary determination, capricious disposition, whimsical thinking, or idiosyncratic choice.” Ibid., quoting from New England Allbank for Sav. v. Rouleau, 28 Mass.App.Ct. 135, 144 (1989).
Rule 14(b) authorizes a single justice of this court, “for good cause shown,” to enlarge the time prescribed to file an appeal. Contrary to the Commonwealth's assertion, the single justice is permitted, within his discretion, to make credibility determinations on affidavits. See Troy Indus., Inc., 76 Mass.App.Ct. at 580 (single justice determined affidavits were credible). Moreover, that the defendant's success may not be certain on appeal does not render his issues nonmeritorious. See Commonwealth v. Barclay, 424 Mass. 377, 379 (1997). Based on the procedural history of the case, including the defendant's affidavit and the timing of his motions made to the trial court, we discern no abuse of discretion by the single justice.
Additionally, in criminal cases, the single justice may properly consider issues such as the “importance of the rights lost to the defendant,” Commonwealth v. White, 429 Mass. 258, 264 (1999), and the “interests of judicial economy in allowing the appeal to proceed.” Commonwealth v. Barboza, 68 Mass.App.Ct. 180, 184–185 (2007). Had the court denied the defendant's motion, he would likely have made “yet another motion for postconviction relief based on the claim of ineffective assistance of counsel for failure to file the notice of appeal.” White, supra at 265. Thus, “the interests of judicial economy [also] allow this appeal to proceed.” Ibid.
Order of single justice affirmed.