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SJC-12300

               G. SAIF SABREE1   vs.   COMMONWEALTH.


                         March 5, 2018.


Supreme Judicial Court, Superintendence of inferior courts.
     Practice, Criminal, Sentence.


     G. Saif Sabree appeals from the judgment of a single
justice of this court, pursuant to G. L. c. 211, § 3, denying
him relief from State prison sentences that he claims were
illegal. We affirm.

     The procedural history of Sabree's case is extensive, and
our summary is abbreviated. On February 12, 1974, he was
indicted on charges of rape, armed robbery, and armed assault in
a dwelling. See Commonwealth v. Nicholson, 4 Mass. App. Ct. 87,
88 (1976). After a jury trial, he was convicted on all counts
and sentenced to a life term for each offense, with the sentence
for armed assault to run concurrently with the sentence for
armed robbery, and the sentence for rape to run from and after
the armed robbery sentence.2 For reasons that are not part of
the record before us, the Appellate Division of the Superior
Court reordered and amended the sentences by reducing the
sentences for armed assault and armed robbery to concurrent
terms of from six to ten years, and ordering that they take
effect from and after the life sentence for rape. The Appeals

     1
       Also known as Gary Mitchell.    See Sabree v. Commonwealth,
432 Mass. 1003, 1003 n.1 (2000).
     2
       The petitioner also was indicted for and convicted of
assault by means of a dangerous weapon. After trial, that
indictment was placed on file with the petitioner's consent.
Commonwealth v. Nicholson, 4 Mass. App. Ct. 87, 88 (1976).
                                                                   2


Court affirmed the convictions, see Nicholson, supra, as well as
several subsequent orders denying his various motions for a new
trial. See Commonwealth v. Sabree, 73 Mass. App. Ct. 1105
(2008); Commonwealth v. Mitchell, 17 Mass. App. Ct. 1112 (1984);
Commonwealth v. Mitchell, 9 Mass. App. Ct. 892 (1980). Sabree
also filed a petition pursuant to G. L. c. 211, § 3, which
sought an order compelling the Superior Court to act on a
pending motion. That was denied because he failed to create a
record to support his allegations. See Sabree v. Commonwealth,
432 Mass. 1003, 1003 (2000).

     In 2015, Sabree filed a motion in the Superior Court
seeking substantially the same relief that he requested in the
G. L. c. 211, § 3, petition now before us: release from
alleged unlawful restraint or correction of the sentences now
being served, pursuant to Mass. R. Crim. P. 30 (a), as appearing
in 435 Mass. 1501 (2001). He also sought an evidentiary hearing
and other relief. Although there is some indication that the
motions were denied, the judge's orders have not been entered on
the docket. The Superior Court's docket indicates that the
proceedings have been stayed pending the filing and disposition
of the G. L. c. 211, § 3, petition.

     A petitioner seeking relief under G. L. c. 211, § 3, bears
the burden of demonstrating the absence of "other routes by
which [he] may adequately seek relief." Sabree v. Commonwealth,
432 Mass. at 1003. A petitioner must also create a record to
substantiate his allegations. Id. at 1004. Sabree failed in
both respects. The single justice therefore correctly denied
the petition. See Commonwealth v. Samuels, 456 Mass. 1025, 1027
n.1 (2010).

     The single justice properly denied relief because "the
petitioner has [or had] other means by which to seek review of
his claim that his sentence . . . is illegal -- in his direct
appeal and in his rule 30 (a) motion and any appeal from the
denial of that motion." Commonwealth v. Jones, 461 Mass. 1005,
1005-1006 (2012). See Cucinelli v. Commonwealth, 477 Mass.
1004, 1004 (2017). As for his claim that his trial or appellate
counsel were ineffective in failing to press issues concerning
the alleged illegality of the sentences imposed by the Superior
Court, or the Appellate Division's authority or jurisdiction to
restructure and amend the sentences, he could have raised that
claim in a postconviction motion pursuant to Mass. R. Crim. P.
30 (b), and an appeal from any adverse ruling. He also failed
to provide a record sufficient to evaluate his claims: notably
absent, for example, is any indication of what materials were
                                                                3


before the Appellate Division in 1974. See Gorod v. Tabachnick,
428 Mass. 1001, 1001, cert. denied, 525 U.S. 1003 (1998).

                                   Judgment affirmed.


     G. Saif Sabree, pro se.
     Sarah Montgomery Lewis, Assistant District Attorney, for
the Commonwealth.
