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SJC-12024

                SCOTT COOPER   vs.   COMMONWEALTH.


                         April 1, 2016.


Supreme Judicial Court, Superintendence of inferior courts.
     Practice, Civil, Notice of appeal. Notice, Timeliness.


     Scott Cooper appeals from a judgment of the county court
denying, without a hearing, Cooper's petition for relief under
G. L. c. 211, § 3, or for relief in the nature of mandamus. We
affirm.

     In 2002, Cooper was convicted of forcible rape of a child
and other offenses. His convictions were affirmed by the
Appeals Court in an unpublished decision. Commonwealth v.
Cooper, 69 Mass. App. Ct. 1110 (2007). In 2013, Cooper filed a
motion for a new trial, which was denied by a judge in the
Superior Court (motion judge). He filed a late notice of appeal
and was advised that he must file a motion for an extension of
time to do so. He filed such a motion shortly thereafter, but
apparently it was misplaced in the clerk's office and was not
acted on for over two months. Once it was found, the motion
judge allowed the motion and gave him forty-five days to file
his notice of appeal. Cooper did not file a new notice of
appeal at that point, nor did he request that his original
notice of appeal be deemed filed. The record has not been
assembled, and no appeal has been docketed in the Appeals Court.
It appears that Cooper discovered this when he filed a motion to
file his brief late in the Appeals Court and was informed that
he had no matter pending in that court. He wrote to the Chief
Justice of the Trial Court seeking assistance. His request was
forwarded to various court personnel, but no further action on
his appeal was taken. Ultimately, Cooper filed his petition in
the county court for relief pursuant to G. L. c. 211, § 3, or
for relief in the nature of mandamus pursuant to G. L. c. 249,
§ 5. He subsequently filed a motion in the single justice
session to transfer the matter to a single justice of the
Appeals Court, stating that he was seeking only leave to file a
late notice of appeal. The single justice denied all relief
without a hearing.

     Cooper has filed a memorandum and appendix 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." The rule does not apply here, as Cooper
is not challenging any interlocutory ruling of the trial court.
See, e.g., Santiago v. Young, 446 Mass. 1006, 1006 (2006) (rule
2:21 does not apply where petitioner is "not challenging any
interlocutory ruling of the trial court, but rather the inaction
of the court"). Nonetheless, it is clear on the record that,
where Cooper did not avail himself of the opportunity to file a
new notice of appeal after he was granted an extension of time
to do so, the single justice was not obligated to grant
extraordinary relief.

     That said, we can see no reason why this appeal has not
been permitted to proceed. Cooper had the right to appeal from
the denial of his motion for a new trial. He did in fact file a
late notice of appeal, albeit without first receiving an
extension of time. Once he did receive an extension --
belatedly, for reasons attributable to the clerk and through no
fault of his own -- it would have been a simple matter for the
Superior Court to recognize that a notice of appeal had already
been filed, to which the motion applied, and to treat that
notice of appeal as the operative notice. We trust that if
Cooper so requests in the Superior Court, his original notice of
appeal will now be deemed properly filed, the record will
promptly be assembled, and Cooper's appeal will proceed in the
ordinary course.

                                   Judgment affirmed.


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

    Scott Cooper, pro se.
