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SJC-11845

                  ELIS BREA   vs.   COMMONWEALTH.



                        December 9, 2015.


Supreme Judicial Court, Superintendence of inferior courts,
     Appeal from order of single justice. Practice, Criminal,
     Interlocutory appeal, Complaint, Dismissal.


     Elis Brea appeals from a judgment of a single justice of
this court denying, without a hearing, his petition for relief
under G. L. c. 211, § 3. A complaint charging Brea with
distribution of heroin and conspiracy to violate the drug laws
issued in the District Court. Brea moved to dismiss the
complaint prior to arraignment. A judge in the District Court
denied the motion and ruled that there was probable cause to
issue the complaint. Brea's G. L. c. 211, § 3, petition sought
relief from this ruling.1 We affirm.

     The case is before us pursuant to S.J.C. Rule 2:21, as
amended, 434 Mass. 1301 (2001), which requires a petitioner
seeking relief from an interlocutory ruling of the trial court
to "set forth the reasons why review of the trial court decision
cannot adequately be obtained on appeal from any final adverse
judgment in the trial court or by other available means." Brea
has not carried his burden under the rule. He argues that
arraignment would appear on his criminal record regardless of
the outcome of the case, causing harm that cannot be remedied on
appeal. Cf. Commonwealth v. Humberto H., 466 Mass. 562, 575
(2013) (Juvenile Court judge has discretion to dismiss
delinquency complaint before arraignment of juvenile). He

     1
       Brea's arraignment has been stayed at his request pending
the outcome of this case.
                                                                   2


further argues that, even if the charges are resolved favorably
to him, sealing of his record would be an inadequate remedy
because even a sealed record "can form a cloud of prosecution."
Commonwealth v. S.M.F., 40 Mass. App. Ct. 42, 46 (1996). These
arguments are unavailing. "The denial of a motion to dismiss in
a criminal case is not appealable until after trial, and we have
indicated many times that G. L. c. 211, § 3, may not be used to
circumvent that rule. Unless a single justice decides the
matter on the merits or reserves and reports it to the full
court, neither of which occurred here, a defendant cannot
receive review under G. L. c. 211, § 3, from the denial of his
motion to dismiss." Jackson v. Commonwealth, 437 Mass. 1008,
1009 (2002), and cases cited. We have recognized "[a] very
limited exception . . . where, before a trial or a retrial, a
defendant raises a double jeopardy claim of substantial merit,"
and "we have consistently rejected attempts to obtain
interlocutory review as a matter of right under G. L. c. 211,
§ 3, of denials of motions to dismiss on other bases that
defendants have attempted to analogize to double jeopardy
claims." Soucy v. Commonwealth, 470 Mass. 1025, 1026 (2015),
and cases cited. We are not persuaded that Brea's claim in this
case is in any way akin to a double jeopardy claim. Simply put,
he seeks immediate review of the judge's ruling that the
complaint was founded on probable cause. That this ruling was
made before arraignment, rather than after, does not present an
exceptional circumstance warranting exercise of our
extraordinary superintendence powers.2 Were we to permit such an
appeal to proceed, we would quickly be inundated with petitions
from criminal defendants seeking interlocutory review of denials
of their motions to dismiss simply because they filed their
motions before arraignment rather than after. Moreover, the
"collateral consequences attendant to the pendency of criminal
proceedings -- such as 'continued anxiety, community suspicion
and other social and economic disabilities' -- do not
necessarily render the regular appellate process inadequate."


    2
       We express no view as to whether the rule in Commonwealth
v. Humberto H., 466 Mass. 562, 575 (2013), should be extended to
adult defendants, as to whether the judge properly ruled on the
motion before arraignment, or as to the correctness of her
ruling that the complaint was founded on probable cause. We
also note that Humberto H. was an appeal by the Commonwealth
from an order dismissing a delinquency complaint; we did not
have before us the question whether a juvenile has the right to
an immediate interlocutory appeal from the denial of a motion to
dismiss such a complaint.
                                                                   3


Rosencranz v. Commonwealth, 472 Mass. 1011, 1012 (2015), quoting
Esteves v. Commonwealth, 434 Mass. 1003, 1003-1004 (2001).

                                   Judgment affirmed.

     The case was submitted on the papers filed, accompanied by
a memorandum of law.

    Veronica J. White for the petitioner.
