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SJC-12162

            RICARDO BARBOSA   vs.   COMMONWEALTH (NO. 1).


                         December 14, 2018.


Supreme Judicial Court, Superintendence of inferior courts.
     Moot Question.


     The petitioner, Ricardo Barbosa, appeals from a judgment of
a single justice of this court dismissing his petition pursuant
to G. L. c. 211, § 3. We affirm.

     At the time Barbosa filed his petition, he stood indicted
on charges of rape and of being a habitual offender. He argued
that at an April 2016 hearing in the Superior Court, he had been
"disallowed" to change his plea. According to Barbosa, the
Commonwealth had offered him a "four year sentence," but then
"reneged" and raised the offer to a sentence of from five to
seven years. Barbosa ultimately did not change his previously
entered plea of not guilty. He filed his G. L. c. 211, § 3,
petition in April 2016 asking this court to "allow" him to plead
guilty in exchange for a four-year sentence. Meanwhile, while
his petition was pending before the single justice, Barbosa was
also pursuing an appeal to the full court from an earlier G. L.
c. 211, § 3, petition, filed in September 2014, which had also
been denied by a single justice. In the course of that appeal,
both in papers filed with the court and at oral argument,
Barbosa had raised the same issue that he raised in his April
2016 petition. On that basis, the single justice dismissed the
April 2016 petition.

     Barbosa filed   a timely notice of appeal from that dismissal
and, with leave of   court, received an extension of time to file
his brief. By the    time he filed his brief, however, he had
already been tried   and convicted on the rape charge, and shortly
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thereafter he was tried and convicted on the charge of being a
habitual criminal. Because of the intervening trials and
convictions, the G. L. c. 211, § 3, petition is now moot.
Barbosa may of course present the issue raised in the
petition -- the Commonwealth's alleged failure to honor a plea
deal -- in his direct appeal from his convictions. That appeal
is pending, awaiting assembly of the record. For reasons
explained in Barbosa v. Commonwealth (No. 2), 481 Mass.
(2018), also decided today, we have directed that that appeal be
entered directly in this court once the record is assembled.

                                   Judgment affirmed.


     Ricardo Barbosa, pro se.
     Michael McGee, Assistant District Attorney, for the
Commonwealth.
