NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

SJC-12196

                  COMMONWEALTH   vs.   STEVEN JAMES.



            Suffolk.     March 6, 2017. - August 1, 2017.

     Present:     Gants, C.J., Lenk, Hines, Lowy, & Budd, JJ.


    Practice, Criminal, Capital case, Postconviction relief.



     Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on February 9, 2016.

    The case was reported by Hines, J.


     Rosemary Curran Scapicchio (Dennis M. Toomey also present)
for the defendant.
     Mary E. Lee, Assistant District Attorney, for the
Commonwealth.


    HINES, J.    The narrow question before us, here on a

reservation and report from a single justice of the county

court, is whether a juvenile who has been convicted of murder in

the first degree, and whose conviction has been affirmed by this

court after plenary review, is thereafter subject to the

gatekeeper provision of G. L. c. 278, § 33E.     We conclude that
                                                                      2


the gatekeeper provision applies.   The case should now proceed

in the county court as a gatekeeper matter.

    Background.   The defendant, Steven James, was convicted in

1995 of murder in the first degree on a theory of extreme

atrocity or cruelty.   He was sentenced to a mandatory term of

life without the possibility of parole, pursuant to G. L.

c. 265, § 2, as amended through St. 1982, c. 554, § 3.    See

Commonwealth v. James, 427 Mass. 312, 313, 318 (1998).    He was

seventeen years old when the killing occurred in 1994, id. at

315, and under the law at that time was considered an adult for

purposes of the criminal proceedings.    See Watts v.

Commonwealth, 468 Mass. 49, 50-51 (2014).     On appeal, this court

"reviewed the entire record and conclude[d] that relief pursuant

to G. L. c. 278, § 33E, [was] not warranted," and affirmed

James's conviction.    James, supra at 318.

    In 2013, James filed a motion for a new trial in the

Superior Court, with multiple subsequent supplements.    A judge

other than the trial judge, who had since retired, held a

nonevidentiary hearing and denied the motion.    However, because

James was under the age of eighteen at the time of the killing,

he was resentenced to life with the possibility of parole.      See

Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass.

655, 658 (2013), S.C., 471 Mass. 12 (2015) ("imposition of a

sentence of life in prison without the possibility of parole on
                                                                        3


individuals who were under the age of eighteen when they

committed the crime of murder in the first degree violates the

prohibition against 'cruel or unusual punishments'").     James

thereafter filed an application in the county court, pursuant to

the gatekeeper provision of G. L. c. 278, § 33E, seeking leave

to appeal the denial of his motion for a new trial.     He

subsequently supplemented the petition, arguing that he is not

subject to the gatekeeper provision at all, since he now has

been resentenced and is no longer sentenced to the most severe

sentence recognized in Massachusetts, life without parole

eligibility.   The single justice reserved and reported that

threshold procedural question, namely, "whether the

postconviction case of a defendant who was tried on an

indictment for murder in the first degree and was convicted of

murder in the first degree, but who was a juvenile at the time

of the crime and thus subject to a lesser penalty than life

without the possibility of parole, is a 'capital case' as

defined in § 33E."     See Mass. R. Civ. P. 64 (a), as amended, 423

Mass. 1403 (1996).

    Discussion.      As the single justice recognized, James was

"tried on an indictment for murder in the first degree and was

convicted of murder in the first degree."     G. L. c. 278, § 33E.

On direct appeal, this court reviewed the whole case, including

both the law and the evidence, and affirmed his conviction.       See
                                                                    4


Commonwealth v. Gunter, 459 Mass. 480, 485-487, cert. denied,

565 U.S. 868 (2011); James, 427 Mass. at 318.   Irrespective of

the subsequent resentencing, after his direct appeal concluded,

James continued to stand convicted of murder in the first

degree, and remained convicted of a "capital case" for purposes

of the statute.   See Commonwealth v. Francis, 450 Mass. 132, 137

(2007); Commonwealth v. Gilbert, 447 Mass. 161, 165 (2006).    In

such a case, the statute plainly and expressly prohibits a

subsequent appeal from "any motion" filed in the Superior Court

unless authorized by a single justice "on the ground that it

presents a new and substantial question."   G. L. c. 278, § 33E.

See Commonwealth v. Davis, 410 Mass. 680, 683 (1991).1

     We recognize that, following the court's decision in

Diatchenko, 466 Mass. 655, a juvenile defendant is no longer

subject to a sentence of life without the possibility of parole.

We left open the question in Commonwealth v. Brown, 474 Mass.

576, 592 n.9 (2016), whether "a juvenile convicted of murder in

the first degree is entitled to plenary review under G. L.

c. 278, § 33E, and is subject to the gatekeeper provision of


     1
       In contrast, when a verdict has been reduced from murder
in the first degree after plenary review under G. L. c. 278,
§ 33E, the defendant no longer stands convicted of a "capital
case," and therefore is not subject to the statute's gatekeeper
restriction governing future appeals. See Commonwealth v.
Gilbert, 447 Mass. 161, 165 n.7 (2006); Commonwealth v. Perry,
424 Mass. 1019, 1020 (1997); Commonwealth v. Lattimore, 400
Mass. 1001, 1001 (1987).
                                                                   5


that statute; or whether such a defendant is not entitled to

plenary review but is entitled to a right of appeal from the

denial of all motions for a new trial."   This case does not

present an occasion to decide that question, however, because

this is not James's direct appeal and the single justice did not

report that question.   James already has had his direct appeal,

received plenary review under G. L. c. 278, § 33E,2 and,

following that review, continues to stand convicted of murder in

the first degree.

     After receiving the benefit of this "uniquely thorough

review," it follows that James is thereafter afforded "a

narrower opportunity for appeal of postconviction motions than

other criminal defendants."   He must comply with the gatekeeper


     2
       Plenary review under the statute has been described as a
"uniquely thorough review." Dickerson v. Attorney Gen., 396
Mass. 740, 744 (1986).

          "Under G. L. c. 278, § 33E, this court has
     extraordinary powers in reviewing capital convictions on
     direct appeal: we consider the whole case, both the law
     and the evidence, to determine whether there has been any
     miscarriage of justice. . . . Unlike appellate review of
     convictions of other crimes, our consideration of first
     degree murder cases is not limited to issues based on
     objections rendered at trial. . . . We are empowered under
     G. L. c. 278, § 33E, to consider questions raised by the
     defendant for the first time on appeal, or even to address
     issues not raised by the parties, but discovered as a
     result of our own independent review of the entire record."
     (Citations omitted.)

Id. See Commonwealth v. Gunter, 459 Mass. 480, 485-487, cert.
denied, 565 U.S. 868 (2011).
                                                                     6


provision.   Dickerson v. Attorney Gen., 396 Mass. 740, 744

(1986) ("since we have already reviewed the 'whole case' as

required by G. L. c. 278, § 33E, the capital defendant

justifiably is required to obtain leave of a single justice

before being allowed once again to appear before the full

court").   Plenary review (for the direct appeal) and the

gatekeeper provision (for subsequent appeals) are interconnected

and complementary component parts of the G. L. c. 278, § 33E,

process.   See Gunter, 459 Mass. at 486-487.   See also Dickerson,

supra at 743-744.   As we have said, once plenary review has been

given, "[i]nterests of judicial economy are best served by

having a single justice 'screen out' postconviction motions

which do not present a 'new or substantial question.'"      Davis,

410 Mass. at 683, quoting Dickerson, supra at 744-745.      See

Leaster v. Commonwealth, 385 Mass. 547, 549-550 (1982).     See

also Commonwealth v. Lanoue, 409 Mass. 1, 8 (1990) (O'Connor,

J., concurring).    This is no less true for a juvenile defendant

than it is for an adult defendant.3


     3
       In Patrick P. v. Commonwealth, 421 Mass. 186, 193-194
(1995), the court held that the determination of what
constitutes a "capital case" for purposes of the exercise of
plenary review under G. L. c. 278, § 33E, takes "into account
not only the requirement of a first degree murder indictment,
but also the possible severity of the punishment involved."
Similarly, in Dickerson, 396 Mass. at 744, the court described
plenary review as being "warranted by the infamy of the crime
and the severity of its consequences." Those cases do not aid
the defendant's position. They simply described who is entitled
                                                                      7


    Conclusion.   We answer the reported question as follows:

the gatekeeper provision of G. L. c. 278, § 33E, applies to a

juvenile defendant who, like James, has had a direct appeal, has

received plenary review and, following that review, remains

convicted of murder in the first degree.     The case shall proceed

in the county court for consideration of James's gatekeeper

application, specifically whether the issues presented in his

new trial motion are "new and substantial" for purposes of

§ 33E.   See Gunter, 459 Mass. at 487-488.

                                   So ordered.




to plenary review and why. They do not suggest that plenary
review and the gatekeeper provision should be decoupled in any
circumstances. Indeed, once the court has conducted plenary
review, so long as the defendant remains convicted of murder in
the first degree, he or she continues to be a capital defendant
for purposes of the gatekeeper provision of the statute, and the
same rationale for the gatekeeper provision continues to apply,
irrespective of any ensuing alteration of sentence.
