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SJC-11782

             ROBERT E. MONTEIRO   vs.   COMMONWEALTH.


                       November 20, 2015.


Supreme Judicial Court, Superintendence of inferior courts.
     Practice, Criminal, Assistance of counsel.



     The petitioner, Robert E. Monteiro, was convicted of murder
in the first degree in 1983. This court affirmed the
conviction. See Commonwealth v. Monteiro, 396 Mass. 123 (1985).
Since then, Monteiro has filed, among other things, two motions
for a new trial in the trial court and an earlier application in
the county court requesting leave to appeal pursuant to G. L.
c. 278, § 33E, all of which have been denied. See Commonwealth
v. Monteiro, 451 Mass. 1009 (2008). He has also sought,
unsuccessfully, the appointment of counsel to assist with
various postconviction motions. Most recently he filed, in the
county court, a "Petition to Invoke the Extraordinary Power of
the Supreme Judicial [Court] Pursuant to G. L. c. 211, § 3, and
G. L. c. 278, § 33E, to Answer the New and Substantial Question
Related to G. L. c. 278A, § 5." A single justice denied the
petition, and Monteiro appeals.

     In December, 2013, Monteiro filed, in the trial court,
"Defendant's Pro Se Motion for Appointment of Counsel to Prepare
and File for Forensic and Scientific Analysis Pursuant to G. L.
c. 278A." A judge referred the motion to the Committee for
Public Counsel Services (CPCS) for screening. CPCS had
previously declined to appoint counsel to represent Monteiro in
connection with other postconviction efforts and declined again
to do so here. The judge denied Monteiro's motion, as well as
his subsequent motion for reconsideration, and Monteiro then
filed his petition in the county court, asking the court to
                                                                   2


order the judge to appoint counsel or, in the alternative, to
grant him leave to appeal, pursuant to G. L. c. 278, § 33E, from
the denial of the motion for appointment of counsel.

     To the extent that Monteiro sought relief pursuant to G. L.
c. 211, § 3, the single justice properly denied his petition on
the basis that he has an adequate alternative remedy. He can
pursue, pro se, a motion for forensic or scientific analysis
pursuant to G. L. c. 278A in the trial court. If he does so,
and he receives an adverse ruling, he would then be free to seek
leave to appeal from that ruling, pursuant to G. L. c. 278,
§ 33E, including any claim that the trial court erred in denying
his request for appointment of counsel.

     Monteiro also had a second adequate alternative, which he
pursued in the county court but which the single justice did not
address: seeking leave to appeal from the denial of the motion
for appointment of counsel pursuant to the gatekeeper provision
of G. L. c. 278, § 33E. Monteiro seeks the appointment of
counsel to assist him with a motion for forensic or scientific
analysis pursuant to G. L. c. 278A. That statute specifically
provides, in § 5, that "[t]he court may assign or appoint
counsel to represent [an indigent party] in the preparation and
presentation of motions filed under this chapter" (emphasis
added). The language of G. L. c. 278A, § 5, mirrors that of
Mass. R. Crim. P. 30 (c) (5), as appearing in 435 Mass. 1501
(2001), which provides that a judge may "assign or appoint
counsel . . . to represent a defendant in the preparation and
presentation of motions" for postconviction relief filed under
that rule (emphasis added).1

     When a defendant's motion for appointment of counsel made
pursuant to rule 30 is denied, the defendant may appeal or, in
the case of a defendant convicted of first degree murder, seek
leave to appeal pursuant to the gatekeeper provision of G. L.
c. 278, § 33E. See, e.g., Ardon v. Committee for Pub. Counsel
Servs., 464 Mass. 1001, 1002 (2012), cert. denied, 134 S. Ct.
185 (2013) (petitioner convicted of murder in first degree could
have sought leave to appeal pursuant to G. L. c. 278, § 33E,

    1
       A defendant can thus file a motion for appointment of
counsel before filing the substantive motion with which he or
she would like counsel's assistance -- i.e., before filing a
motion for forensic or scientific testing pursuant to G. L.
c. 278A or before filing a motion for postconviction relief
pursuant to Mass. R. Crim. P. 30, as appearing in 435 Mass. 1501
(2001). That is what Monteiro has done here.
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from denial of appointment of counsel to assist with motion for
new trial); Jordan v. Superior Court, 426 Mass. 1019, 1019
(1998) (petitioner could have appealed from denial of
appointment of counsel to assist with motion to revise or revoke
sentence). Alternatively, a defendant in these circumstances
can pursue a motion for postconviction relief pro se and
thereafter appeal from the denial of any such motion and
challenge, at that time, the denial of counsel. See, e.g.,
Jordan, supra. The same is true for a defendant who seeks the
appointment of counsel pursuant to G. L. c. 278A, § 5. Monteiro
thus properly sought leave to appeal from the denial of his
motion for appointment of counsel pursuant to the gatekeeper
provision of G. L. c. 278, § 33E.

     We therefore remand the case to the single justice for
consideration of so much of Monteiro's request in the county
court that sought leave to appeal pursuant to G. L. c. 278,
§ 33E, including his request that the single justice appoint
counsel in connection with the application.2

                                   So ordered.

     The case was submitted on briefs.
     Robert E. Monteiro, pro se.
     Donna Jalbert Patalano, Assistant District Attorney, &
Taylor M. Makson for the Commonwealth.




     2
       We express no view on the timeliness of Monteiro's request
for leave to appeal pursuant to G. L. c. 278, § 33E. See Mains
v. Commonwealth, 433 Mass. 30, 36 n.10 (2000). We leave it to
the single justice to resolve any questions regarding
timeliness, including whether an extension of time would be
warranted or appropriate.
