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SJC-12233

               RAYMOND WHITE   vs.   COMMONWEALTH.


                         April 23, 2018.


Supreme Judicial Court, Superintendence of inferior courts.
     Practice, Criminal, Appeal, Capital case. Constitutional
     Law, Appeal.


     In 1972, Raymond White and a codefendant, James Hall, were
each convicted of two counts of murder in the first degree and
one count of armed robbery. This court affirmed Hall's
convictions after his direct appeal. See Commonwealth v. Hall,
369 Mass. 715 (1976). White's direct appeal was never properly
perfected, however, although he did at various times make
efforts toward that end, sometimes pro se and sometimes
represented by counsel. Among other things, his counsel filed a
petition with a single justice of this court for late filing of
an assignment of errors and late entry of the appeal in October,
1974, which was allowed. But it appears that the appeal was
never actually entered, and that no further action was taken to
prosecute the appeal for an additional eighteen years when, in
October, 1992, White, through new counsel, filed a motion in the
county court seeking an order directing the Superior Court clerk
to transmit the record to this court so that he could pursue his
direct appeal. The Commonwealth opposed the motion, which a
single justice ultimately denied after a hearing, in 1994.

     Then, in July, 2014, White filed, again with a single
justice, a pro se motion for leave to file a late notice of
appeal, and, in September, 2014, a pro se petition pursuant to
G. L. c. 211, § 3, to reinstate his direct appeal. Counsel was
appointed to represent White on these matters, and, after
further proceedings and a hearing, the single justice eventually
allowed White's petition to reinstate his direct appeal in
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December, 2016. She also allowed his motions to file a late
notice of appeal and to appoint appellate counsel for purposes
of the reinstated direct appeal. Finally, she ordered the
Superior Court to assemble the record from the underlying
prosecution and to make it available to this court for
determination of the reinstated appeal.

     The Commonwealth now appeals from the judgment of the
single justice reinstating the direct appeal and from her
related orders. We reverse.

     We agree with the basic premise of the single justice's
decision, i.e., that if the defendant was deprived of his right
to pursue a direct appeal as a result of the ineffective
assistance of his trial or appellate counsel in failing to
preserve and perfect that right, then he is entitled to a
remedy. See Commonwealth v. Frank, 425 Mass. 182 (1997);
Commonwealth v. Cowie, 404 Mass. 119 (1989); Commonwealth v.
George, 404 Mass. 1002 (1989). See also Evitts v. Lucey, 469
U.S. 387 (1985). We disagree with the single justice, however,
as to her choice of the appropriate remedy in these
circumstances. The single justice was of the view that
reinstating the direct appeal -- such that the issues would be
considered in the first instance by this court pursuant to
G. L. c. 278, § 33E -- was the best course. We agree with the
Commonwealth that White has a constitutionally adequate
alternative that better fits these circumstances. Specifically,
he can file 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), have his issues considered on the substantive
merits in that context, and appeal to this court in the event
his motion is denied.1


    1  We also agree with the Commonwealth that the single
justice's reinstatement of the direct appeal is at odds with the
earlier order of a different single justice, in 1994, denying
White's request to have the trial court record assembled and
transmitted to this court. The single justice here was of the
view that the earlier order merely denied a request for the
transmittal of the record, and did not necessarily deny an
actual reinstatement of the direct appeal. We think that is too
narrow a reading of the earlier order. We think it was implicit
at the very least, if not explicit, in the earlier order that
the single justice at that time was denying reinstatement of a
direct appeal.
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     In Cowie, 404 Mass. at 121, we considered whether a motion
for a new trial pursuant to rule 30 (b) is a constitutionally
adequate substitute for the right to a direct appeal that has
been lost. We held that it is. That case involved a defendant
who had been convicted of armed assault with intent to kill and
assault and battery by means of a dangerous weapon. Id. at 120.
The defendant allegedly lost his right to a direct appeal due to
the ineffective assistance of his trial counsel, who failed to
file a timely notice of appeal. Id. at 121. We held:

    "[P]ostconviction attack on [a] judgment through a motion
    under rule 30 (b) fully accords with due process as a
    remedy for the defendant's frustrated right of appeal.
    Rule 30 (b) does not contain a time limitation, but its
    application permits examination of the claimed errors to
    determine whether the defendant was deprived of any
    constitutionally protected rights by his failure to appeal.
    If the judge denies the motion for a new trial, then the
    defendant may appeal that denial and thus obtain appellate
    review of any issue that would have afforded the defendant
    relief had his appeal been timely filed. Limiting a
    defendant to the postconviction remedy contained in rule 30
    (b), coupled with the right of appellate review of an
    adverse ruling thereon, does not violate the defendant's
    due process rights." (Footnote omitted.)

Id. at 122-123, and cases cited.

     Although the Cowie case did not involve a conviction of
murder in the first degree, the same general reasoning applies
here. The fact that this is a case involving murder in the
first degree murder and that White, had his right to a direct
appeal not been lost, would have been entitled to plenary review
pursuant to G. L. c. 278, § 33E, does, however, require us to
add certain protections to ensure that this procedure affords
him a truly adequate substitute for a direct appeal. We
describe those additional protections in greater detail below.

     In Frank, 425 Mass. at 184-185, we again considered the
options for a defendant who lost his right to a direct appeal as
a result of the ineffective assistance of counsel. The appeal
in that case had been timely noticed and entered in the
appellate court, but it was dismissed for failure to prosecute
after the defendant's appellate counsel failed to file a brief.
Id. at 183. After the appeal had been dismissed, the defendant
filed a motion for a new trial in the trial court, pursuant to
rule 30 (b), as prescribed by the Cowie decision. He filed the
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motion without the benefit of counsel, and specifically
requested that counsel be appointed for him. Id. at 182. The
trial judge summarily denied the motion without appointing
counsel. Id. The case was before us on the defendant's appeal
from the denial of his motion for a new trial. The court was
thus faced with the question of how to proceed in those
particular circumstances.

     The defendant in the Frank case clearly did not receive an
adequate substitute for his lost direct appeal, as envisioned by
the Cowie decision, because he was not afforded counsel to
represent him on his motion for a new trial, whereas, on a
direct appeal, he would have had an indisputable constitutional
right to counsel. We ordered that new counsel be appointed for
him, and we gave him two choices. We stated that the defendant
"may wish to press his claims by prosecuting the appeal . . . or
by a motion for a new trial if his claims might better be
developed in such a setting, or both." Frank, 425 Mass. at 185.
The Frank case does not stand for the proposition that a
defendant will always have the option of proceeding with a
reinstated direct appeal. It is simply an illustration of one
circumstance where the reinstatement of a direct appeal would be
appropriate. The period of time between the defendant's lost
appeal and our decision in that case was relatively short --
three years; the claim of ineffective assistance of counsel
resulting in the loss of his direct appeal was "credible" and
"unrebutted," the Commonwealth itself having described his
counsel's neglect as "indefensible"; and the defendant had
already attempted to pursue a remedial motion for a new trial
but had been rebuffed. Id. at 182-183.

     Here, by contrast, the length of time that has passed since
White's trial (and the loss of his right to a direct appeal) is
much longer -- forty-five years. Moreover, it has not yet been
definitively adjudicated that White's loss of his direct appeal
was in fact due to any ineffective assistance of his counsel.2

    2  Compare Commonwealth v. Frank, 425 Mass. 182, 182-183 &
185 n.2 (1997) (Commonwealth agreed that counsel's neglect was
"indefensible," and claim of ineffectiveness was "unrebutted";
defendant was allowed to proceed with reinstated direct appeal,
while noting that result would have been different had loss of
appellate rights been result of defendant's deliberate and
counseled choice), with Commonwealth v. Cowie, 404 Mass. 119,
122 n.7 (1989) (Commonwealth did not stipulate that counsel's
actions constituted ineffective assistance; defendant required
to proceed with motion for new trial in first instance, which
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And finally, White has not yet attempted to rectify the
situation through a motion for a new trial. The better course
in these circumstances is for White to proceed in the first
instance by a motion for a new trial in the trial court. This
approach has several advantages over a reinstated direct appeal
in the first instance. First, it will allow for a full
development of the factual record as to any claims that White
wishes to pursue, including his claim that the loss of his right
to an appeal was due to the ineffective assistance of counsel.
Second, it will permit the trial court judge to make a
definitive ruling on the ineffectiveness claim. Third, it will
permit the parties and the judge to hone legal issues that are
now more than forty-five years old. Finally, it will permit the
parties to litigate in the trial court in the first instance the
questions that may arise as to what law will apply where the
relevant law may have changed since the time of White's
convictions.3

     Requiring White to proceed in this fashion, rather than
simply reinstating his direct appeal, will not violate his
rights or prejudice him in any way provided we impose certain
protections for his benefit. First, assuming the trial court
judge determines that the lost direct appeal was in fact a
consequence of ineffective assistance of counsel -- and not a
choice by White -- White must be permitted to raise all claims
that he could have raised in a direct appeal, and the judge will
be required to consider each of his claims on the substantive
merits, just as we would have done in a direct appeal pursuant
to G. L. c. 278, § 33E. Second, if the motion for a new trial
is denied, White must have an unfettered right to appeal from


would permit that issue, among others, to be fleshed out).
While there is some suggestion in the record of this case that
the loss of White's direct appeal was the result of
ineffectiveness of his counsel, we do not think that point has
been sufficiently resolved to be definite. The motion for a new
trial will permit the issue to be fleshed out.

    3  We recognize, as did the single justice, that allowing a
late appeal many years after a conviction, particularly a
conviction of murder, is not unprecedented. See Commonwealth v.
Beauchamp, 424 Mass. 682, 683 (1997) (defendant convicted of
murder in 1971 successfully petitioned single justice of this
court for leave to file late appeal twenty-five years later, in
1996). For the reasons we have explained, however, it is not
the best course in the circumstances we have here.
                                                                   6


that ruling; he will not be required to obtain leave to appeal
from a single justice under the gatekeeper provision (i.e., the
last sentence) of G. L. c. 278, § 33E. That provision applies
only to motions that are filed "in the superior court after
rescript" (emphasis added).4 G. L. c. 278, § 33E. Therefore, in
order to appeal, he will not be required to show that his issues
are "new and substantial" as the statute requires, or even that
the issues are meritorious in any way. See Frank, 425 Mass. at
184. See also Commonwealth v. Goewey, 452 Mass. 399, 401-405
(2008); Commonwealth v. Alvarez, 69 Mass. App. Ct. 438, 443
(2007) (defendant who loses right to direct appeal due to
ineffectiveness not "required to establish any colorable
appellate issue as a prerequisite to recovering his lost
appellate rights"). Third, if there is an appeal, it should
come directly to this court, as a direct appeal following the
conviction would have, and "the standard of review [will not be]
the more stringent one that applies 'once the [appellate]
process has run its course.'" Frank, supra at 185, quoting
Commonwealth v. Amirault, 424 Mass. 618, 637 (1997). See
Commonwealth v. Beauchamp, 424 Mass. 682, 685-686 (1997).
Finally, the defendant will at that time receive the benefit of
our plenary review of the case, pursuant to G. L. c. 278, § 33E,
just as he would have on a direct appeal. These conditions
assure that the process we are prescribing will indeed be the
functional equivalent of, and a constitutionally permissible
substitute for, his lost right to a direct appeal.

     We therefore reverse the judgment of the single justice. A
judgment shall enter in the county court denying White's G. L.
c. 211, § 3, petition and the related motions. White is then
free to proceed in the Superior Court with a motion for a new
trial pursuant to Mass. R. Crim. P. 30 (b) on the terms and
conditions we have stated.

                                   So ordered.

     Kathryn E. Leary, Assistant District Attorney, for the
Commonwealth.
     Richard L. Goldman for the petitioner.

    4  The "rescript" referred to in the statute is the
disposition of a capital defendant's direct appeal by this
court. See Mass. R. A. P. 1 (c), as amended, 454 Mass. 1601
(2009) (defining "rescript" as "the order, direction, or mandate
of the appellate court disposing of the appeal"). Because White
has not yet had a direct appeal, there has, of course, never
been any rescript.
