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SJC-11734

                JUSTIN DeMATOS vs. COMMONWEALTH
                   (and a consolidated case1).



                          July 9, 2015.



   Supreme Judicial Court, Superintendence of inferior courts.



     The petitioner, Justin DeMatos, appeals from two judgments
of a single justice of this court. The first judgment concerns
a document that DeMatos filed in the county court entitled a
"petition for appeal to [the] Supreme Judicial Court pursuant to
[G. L. c. 278, § 28]." The second judgment concerns a petition
that DeMatos subsequently filed in the county court pursuant to
G. L. c. 211, § 3. The single justice denied both petitions
without a hearing. We affirm.

     Following a jury trial, DeMatos was convicted in the
Superior Court on June 25, 2013, of one count of trafficking in
oxycodone in violation of G. L. c. 94C, § 32E (c) (2)
(twenty-eight grams or more but less than one hundred grams),
and one count of trafficking in oxycodone in violation of G. L.
c. 94C, § 32E (c) (1) (fourteen grams or more but less than
twenty-eight grams).2 He was sentenced to a term of from seven


     1
       The consolidated case is also captioned Justin DeMatos vs.
Commonwealth.
     2
       DeMatos was indicted in 2011, prior to the passage of
St. 2012, c. 192, § 25 (2012 amendment), which increased the
drug weights in G. L. c. 94C, § 32E (c). His convictions came
                                                                   2


to eight years on the first count and a concurrent term of from
five to six years on the second count.3 He appealed from his
convictions to the Appeals Court, where his appeal is currently
pending.4 He also appealed from his sentences to the Appellate
Division of the Superior Court, which, after a hearing, declined
to reduce the sentences and dismissed his appeal.

     The central theme of DeMatos's petitions in the county
court was that he could not be convicted of the charged offenses
because oxycodone is not a class B substance, but instead
belongs in class E. See G. L. c. 94C, § 31 (defining classes of
controlled substances). Therefore, he claimed, his sentences
for trafficking in a class B substance were illegal. The single
justice was not required to address these arguments on the
petitions that were before her. She correctly concluded that
the proper forum for those arguments to be resolved is the
Appeals Court, in DeMatos's direct appeal.

     1. The petition that DeMatos purported to file under G. L.
c. 278, § 28, was misplaced. That statute authorizes a
defendant to take a direct appeal from a criminal conviction in


after the effective date of the statute. The new weights do not
apply to him. Commonwealth v. Didas, 471 Mass. 1 (2015).
     3
       The 2012 amendment (see note 2, supra) also lowered the
mandatory minimum sentences for violations of G. L. c. 94C,
§ 32E (c) (1) and (2), from five and seven years respectively to
three and one-half and five years respectively. DeMatos alluded
only briefly and obliquely to the "new statute" in his material
before the single justice and developed no argument that the
reduction in the mandatory minimums had any effect on his
sentences, despite the fact that Commonwealth v. Galvin, 466
Mass. 286 (2013), had been decided nine months before he filed
the first of his petitions. He also mentions the 2012 amendment
and cites the Galvin case in a single sentence in a footnote in
one of his briefs before the full court. It is a point that he
can develop and pursue in his direct appeal in the Appeals Court
or in an appropriate motion in the trial court. In an appeal
from a single justice's judgment, we ordinarily do not address
issues that were not before the single justice. Milton v.
Boston, 427 Mass. 1016, 1017 (1998).
     4
       The appeal has been stayed at DeMatos's request while he
pursues a motion for a new trial and other relief in the trial
court.
                                                                   3


the District Court or the Superior Court.5 The appeal in all
such cases (except cases of murder in the first degree) is to be
entered in the Appeals Court in the first instance. Although
the statute refers to an appeal being taken to this court, it
must be read in conjunction with G. L. c. 211A, § 10, which
gives the Appeals Court jurisdiction concurrent with this court
over such appeals, and provides that in cases where the Appeals
Court has concurrent jurisdiction the appeal must be entered
there. Commonwealth v. Friend, 393 Mass. 310, 311-314 (1984)
(explaining relationship between G. L. c. 211A, § 10, and
statutes like G. L. c. 278, § 28, that provide for right of
appeal "to the supreme judicial court"). The single justice was
correct to deny the petition pursuant to G. L. c. 278, § 28.
The statute does not give a defendant the right to seek relief
by way of petition in this court in lieu of, or in addition to,
his direct appeal in the Appeals Court.6

     2. DeMatos's petition pursuant to G. L. c. 211, § 3, was
also without merit. That statute, which codifies the court's
power of general superintendence, "is meant for situations where
a litigant has no adequate alternative remedy." McMenimen v.
Passatempo, 452 Mass. 178, 185 (2008). It is not meant to be a
substitute for ordinary appellate review. Id. at 184-185,
quoting McGuinness v. Commonwealth, 420 Mass. 495, 497 (1995).
Here, to the extent DeMatos sought to use his petition to
challenge the legality of his sentences, the single justice
correctly denied the petition because DeMatos's direct appeal in
the Appeals Court is the proper forum for resolving that
challenge.7 And to the extent DeMatos may have been attempting

    5
       The statute provides: "A defendant aggrieved by a
judgment of the district court or of the superior court in any
criminal proceeding may appeal therefrom to the supreme judicial
court."
    6
       DeMatos claims that the issues he raises are matters of
first impression suitable for this court. We express no view as
to that, or as to the substantive merits of his arguments. He
may -- if he wishes to request that his direct appeal be
transferred to this court for consideration here in the first
instance -- file an application for direct appellate review that
complies with Mass. R. A. P. 11, as amended, 437 Mass. 1602
(2002). We will act on any such application in due course.
    7
       DeMatos relies on Commonwealth v. Cowan, 422 Mass. 546,
547 (1996), and similar cases for the proposition that G. L.
c. 211, § 3, may be used to correct an illegal sentence. Those
                                                                  4


to use his petition to obtain review not of the legality but of
the severity of his sentences, the single justice correctly
denied the petition because the Appellate Division's decision
was final in that respect. See G. L. c. 278, § 28B (stating
that decision of Appellate Division "shall be final"). This is
not the rare case in which extraordinary superintendence relief
from the Appellate Division's decision was shown to be
necessary. See Commonwealth v. Barros, 460 Mass. 1015 (2011).

                                   Judgments affirmed.


     Justin DeMatos, pro se.
     Matthew T. Sears, Assistant District Attorney, for the
Commonwealth.




cases are inapposite. They concerned petitions filed by the
Commonwealth to correct a sentence; the Commonwealth, unlike a
defendant, has no adequate alternative remedy. DeMatos also
relies on Care & Protection of Beth, 412 Mass. 188, 192 n.7
(1992), for the proposition that G. L. c. 211, § 3, relief is
available notwithstanding an adequate alternative remedy. That
case is also inapposite. It was reserved and reported to the
full court by a single justice, which did not happen here; when
a single justice reserves decision and reports a case, we give
the matter full review on the merits notwithstanding the
possibility of an adequate alternative remedy. Commonwealth v.
Goodwin, 458 Mass. 11, 14-15 (2010).
