Opinion
No. 11–P–1068.
2012-06-19
COMMONWEALTH v. Joseph S. KING.
By the Court (GRAHAM, VUONO & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted, after a jury-waived trial in the Superior Court, of indecent assault and battery on a child (as a lesser included offense of rape a child by force) and two counts of rape of a child (each as a lesser included offense of rape of a child by force). His direct appeal of the convictions entered on October 22, 2010, and this court affirmed his convictions on December 2, 2011. Commonwealth v. King, 81 Mass.App.Ct. 1101 (2011). Further appellate review was denied on February 2, 2012. Commonwealth v. King, 461 Mass. 1106 (2012).
The defendant was also indicted and tried on one count of dissemination of matter harmful to a minor, but was found not guilty on this count.
On April 28, 2011, while his direct appeal was pending before this court, and with no stay of appeal in effect, the defendant filed a motion for a new trial in the Superior Court pursuant to Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001), arguing, among other things, ineffective assistance of counsel. On June 1, 2011, the motion judge, who was also the trial judge, denied the defendant's motion on the basis that the defendant's appeal was still pending in this court. The defendant then filed the current appeal, contending in part that the judge erred in denying his motion without reaching the merits. Without reaching the merits ourselves, we vacate the order denying the defendant's motion and remand the case for further proceedings. Discussion. As the Commonwealth correctly notes, while the defendant's appeal was pending (and absent a stay of appeal), the Superior Court judge was divested of jurisdiction to act on the defendant's motion for a new trial. See Commonwealth v. Cronk, 396 Mass. 194, 197 (1985); Commonwealth v. Montgomery, 53 Mass.App.Ct. 350, 351–354 (2001). That divestment of jurisdiction, however, also prevented the judge from denying the defendant's motion. Id. at 353. The rule we have confirmed supports “consistent administrative ‘no action’ treatment of rule 30(b) and related motions in the trial court during the pendency of an entered direct appeal of the underlying conviction.” Ibid. We therefore vacate the order denying the defendant's motion for a new trial and remand the case for further proceedings. The defendant's motion is to be treated as not acted upon and awaiting determination by the Superior Court.
The defendant also filed a motion for reconsideration of his motion for a new trial, which the judge denied. No appeal was taken from the denial of that motion.
So ordered.