Papp v. Commonwealth ( 2023 )

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SJC-13372
WILLIAM J. PAPP, THIRD vs. COMMONWEALTH.
February 14, 2023.
Supreme Judicial Court, Superintendence of inferior courts.
Practice, Criminal, Double jeopardy. Moot Question.
William J. Papp, III, appeals from a judgment of the county
court denying, without a hearing, his petition for extraordinary
relief under G. L. c. 211, § 3. We dismiss the appeal as moot.
Papp was charged in the District Court with operating a
motor vehicle while under the influence of intoxicating liquor,
second offense, and operating with a suspended license. A jury
trial commenced. Shortly after beginning to question a
Commonwealth witness, the prosecutor experienced a medical
problem requiring immediate treatment at a hospital. As a
result, the judge declared a mistrial, ruling that a manifest
necessity existed and that a retrial was permissible. In his
G. L. c. 211, § 3, petition, Papp argued that there was no
manifest necessity for the mistrial and that retrial would
violate his protections against double jeopardy. The single
justice denied relief, and after a second jury trial, Papp was
convicted as charged.1 Papp timely filed a direct appeal from
those convictions, which is pending in the Appeals Court. After
obtaining from the single justice leave to file a late notice of
appeal, Papp filed this appeal from the denial of his G. L.
1 It appears that Papp's second trial took place the same
day that the single justice denied relief. Papp did not request
that the single justice or the full court stay the proceedings
in the District Court, although he could have done so. See
Neverson v. Commonwealth, 406 Mass. 174, 175 n.2 (1989).
c. 211, § 3, petition about three months after his direct appeal
entered in the Appeals Court.
Papp has filed a memorandum and appendix pursuant to S.J.C.
Rule 2:21, as amended, 434 Mass. 1301 (2001), which requires him
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."
Ordinarily, we would allow an appeal raising a double jeopardy
claim to proceed, as "[a] criminal defendant who raises a double
jeopardy claim of substantial merit is entitled to review of the
claim before he is retried"; G. L. c. 211, § 3, is the
appropriate route for obtaining that review; and "[t]he
defendant . . . [has] the right to appeal an adverse
determination by the single justice to the full court."
Neverson v. Commonwealth, 406 Mass. 174, 175 & n.2 (1989). In
this case, however, where Papp's retrial has already taken
place, it is too late to provide the review contemplated by
Neverson and too late to prevent the retrial from going forward.
This appeal from the denial of extraordinary relief is therefore
moot and will be dismissed. See Clarke v. Commonwealth, 437
Mass. 1012, 1013 (2002). To be clear, Papp's double jeopardy
claim itself is not moot; he remains free to pursue that claim
in the Appeals Court, which can, if warranted, provide relief
from his convictions.2 See id. (after conviction, double
jeopardy argument can adequately be raised on direct appeal).
His appeal from the single justice's decision denying relief
under G. L. c. 211, § 3, prior to his second trial, however, is
moot.3
Appeal dismissed.
The case was submitted on the papers filed, accompanied by
a memorandum of law.
William J. Papp, III, pro se.
2 It appears that Papp has raised his double jeopardy
argument in his brief filed in the Appeals Court.
3 In dismissing this appeal, we express no view as to the
merits of Papp's pending appeal before the Appeals Court, nor do
we express any view as to the merits of Papp's double jeopardy
claim or as to whether there was a manifest necessity for the
mistrial. We simply decline to disturb the denial of
extraordinary relief in these circumstances.