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SJC-11655

               COMMONWEALTH   vs.   DEVIN R. READE.


                       November 17, 2014.


Supreme Judicial Court, Superintendence of inferior courts.
     Notice, Timeliness. Practice, Criminal, Interlocutory
     appeal, Assistance of counsel.


      The petitioner, Devin R. Reade, 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. In his petition,
Reade sought relief from a District Court judge's decision not
to appoint counsel for him in an underlying criminal case in
which he is charged with two misdemeanors. See G. L. c. 211D,
§ 2B.

     This appeal is governed by S.J.C. Rule 2:21, as amended,
434 Mass. 1301 (2001). Rule 2:21 (1) requires that any notice
of appeal be filed with the clerk of the county court within
seven days of the entry of the single justice judgment, unless
the court otherwise permits. The judgment in this case was
entered on December 23, 2013, but the notice of appeal was not
filed until March 18, 2014, eighty-five days later. Because the
appeal is clearly untimely, we shall dismiss it.

     Even if we were to consider his claims on the merits, Reade
would not be entitled to relief. The District Court judge's
decision not to appoint counsel was an interlocutory
determination that can adequately be reviewed in a direct appeal
in the event Reade is convicted. "Our general superintendence
power under G. L. c. 211, § 3, is extraordinary and to be
exercised sparingly, not as a substitute for the normal
appellate process . . . ." Votta v. Police Dep't of Billerica,
444 Mass. 1001, 1001 (2005). The single justice did not err or
abuse her discretion in concluding that extraordinary
superintendence relief under G. L. c. 211, § 3, was not
necessary.1

                                   Appeal dismissed.


     The case was submitted on the papers filed, accompanied by
a memorandum of law.
     Devin R. Reade, pro se.
     Cynthia M. Von Flatern, Assistant District Attorney, for
the Commonwealth.




    1
       General Laws c. 211D, § 2B, provides that "[a] person
charged with a misdemeanor . . . shall not be appointed counsel
if the judge, at arraignment, informs such person on the record
that, if the person is convicted of such offense, the person's
sentence shall not include any period of incarceration." Here,
counsel was initially appointed for Devin R. Reade. Counsel
subsequently moved to withdraw, which the judge allowed, and
Reade sought the appointment of new counsel to replace him. It
was at that point that the judge declined to appoint counsel and
indicated that, if Reade were convicted, he would not face any
period of incarceration. It is difficult to imagine how Reade
could have been prejudiced by the judge's failure to make that
determination initially, at the arraignment, but we need not
resolve that question now. Any such claim can be made and
decided in a direct appeal.
