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SJC-11907

                COMMONWEALTH   vs.   PAUL ROBINSON.


                          May 25, 2017.


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


     Along with a codefendant, Paul Robinson was convicted of
two counts of murder in the first degree and two counts of
assault with intent to rob in 1969. After plenary review, this
court affirmed the convictions. Commonwealth v. McGrath, 358
Mass. 314 (1970), S.C., 408 Mass. 245 (1990) and 437 Mass. 1002,
cert. denied, 537 U.S. 980 (2002). Robinson has since filed
several motions for a new trial, all of which have been denied.
After the denial of his most recent (seventh) such motion,
Robinson sought leave to appeal pursuant to the gatekeeper
provision of G. L. c. 278, § 33E. A single justice of this
court concluded that the motion failed to present a "new and
substantial question" and therefore denied such leave. Robinson
filed a notice of appeal to the full court from the single
justice's ruling, and the Commonwealth moved to dismiss.
Robinson asserted in opposition that his appeal ought to be
permitted to proceed despite the longstanding rule that the
decision of the gatekeeper is "final and unreviewable."
E.g., Commonwealth v. Vinnie, 475 Mass. 1011, 1011 (2016), and
cases cited. We gave Robinson an opportunity to explain the
basis for his position in a preliminary statement of no more
than five pages. Robinson has responded with an eleven-page
statement of issues, in which he argues essentially that the
gatekeeper process leads to arbitrary results and, more
particularly, that his appeal was not allowed to proceed whereas
                                                                   2


other defendants' appeals were. 1 This is merely a recasting of
the equal protection challenge we rejected in Napolitano
v. Attorney Gen., 432 Mass. 240, 241-242 (2000). We reject it
again here. Robinson received plenary review of his convictions
under § 33E on direct appeal, and he has offered no reason to
suppose that his seventh motion for a new trial raised any new
and substantial issue that was not or could not have been
presented in any of the previous six. There is no hint of
arbitrariness in this case. He also has not offered any reason
to believe that the "single justice erred by denying [his]
gatekeeper petition on procedural grounds." Commonwealth
v. Nassar, 454 Mass. 1008, 1009 n.2 (2009). Finally, we reject
Robinson's argument that § 33E does not bar an appeal from the
decision of the gatekeeper. "The special function of the single
justice mandated by the statute would be futile and meaningless
if his or her rulings were subject to appeal before the full
court." Commonwealth v. Companiono, 472 Mass. 1004, 1005
(2015), quoting Leaster v. Commonwealth, 385 Mass. 547, 548
(1982). We see no reason to depart from our longstanding and
well-established rule. See Companiono, supra, and cases cited. 2

                                   Appeal dismissed.

     The case was submitted on briefs.
     David J. Nathanson for the defendant.
     Teresa K. Anderson, Assistant District Attorney, for the
Commonwealth.




     1
       It appears that Robinson intended the memorandum to apply
to both his own appeal and that of his codefendant, who
similarly purports to appeal from a decision of the gatekeeper.
See Commonwealth v. McGrath, 477 Mass.     (2017). He
incorrectly asserts that we issued identical orders to him and
to his codefendant, affording each of them five pages. In fact,
we issued one order, to Robinson alone.
     2
       Robinson's reliance on Commonwealth v. Grassie, 476 Mass.
202, 213-218 (2017), is misplaced. That case involved a direct
appeal from a conviction of murder in the second degree and from
an order denying a motion to reduce the verdict, not a final and
unreviewable decision of the gatekeeper pursuant to G. L.
c. 278, § 33.
