Commonwealth v. Smith ( 2023 )

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SJC-13254
COMMONWEALTH vs. HUBERT LEE SMITH, JR.
Suffolk. November 4, 2022. – February 28, 2023.
Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker,
& Wendlandt, JJ.
Practice, Criminal, Capital case, Postconviction relief,
District attorney. Time. Words, "Good cause," "Excusable
neglect."
Indictment found and returned in the Superior Court on
February 17, 1978.
Following review by this court, 384 Mass. 519 (1981), a
motion for postconviction relief, filed on April 7, 2020, was
heard by Janet L. Sanders, J.
A motion to dismiss a request for leave to appeal and a
motion to accept the request for leave to appeal as timely filed
were reported by Gaziano, J., in the Supreme Judicial Court for
the county of Suffolk.
Cailin M. Campbell, Assistant District Attorney, for the
Commonwealth.
Michelle Menken for the defendant.
The following submitted briefs for amici curiae:
Stanley Donald, pro se.
Robert F. Hennessy for Committee for Public Counsel
Services.
2
Katharine Naples-Mitchell for Families for Justice as
Healing.
GAZIANO, J. On July 6, 2022, the defendant was released on
parole after having served forty-four years in prison for his
conviction of murder in the first degree. A Superior Court
judge granted the defendant's motion for postconviction relief
on the ground that the Commonwealth's 1978 package plea offer
violated the defendant's rights to due process. The judge then
reduced the defendant's conviction from murder in the first
degree to murder in the second degree. Following issuance of
the judge's order on August 4, 2021, the Commonwealth filed a
notice of appeal, but it did not file the requisite gatekeeper
petition under G. L. c. 278, § 33E, until five and one-half
months later, substantially exceeding the thirty-day filing
requirement set forth in Mains v. Commonwealth, 433 Mass. 30, 36
n.10 (2000). The single justice initially granted the
Commonwealth's petition. After the defendant sought
reconsideration, supplemental briefing was filed, the single
justice conducted a hearing, and he then allowed the
Commonwealth's gatekeeper petition, contingent upon the full
court's approval of the Commonwealth's motion for leave for late
filing. The single justice then reserved and reported the
matter to this court.
3
To resolve the reported issues, we must decide whether the
Commonwealth had good cause to file its gatekeeper petition
pursuant to G. L. c. 278, § 33E, more than five months late.
Because the petition was not filed within the applicable thirty-
day period, and because there was no showing of good cause to
excuse the delay, see Mass. R. A. P. 14 (b), as appearing in 481
Mass. 1626 (2019), the Commonwealth's petition must be dismissed
as untimely.
In addition, we conclude that the thirty-day deadline for
filing a gatekeeper petition set forth in Mains, 433 Mass. at 36
n.10, does not allow adequate time in which to develop and file
the substantive pleadings required for such a petition.
Accordingly, for petitions under G. L. c. 278, § 33E, filed
after the date of issuance of the rescript in this case, the
filing period shall be extended to sixty days.1
1. Background. On February 10, 1978, Max Fishman, who was
making oil deliveries to customers in the aftermath of the so-
called "Great Blizzard of 1978," was shot and killed during a
robbery committed by the defendant and a codefendant.2 The two
were arrested, and on February 17, 1978, a grand jury returned
1 We acknowledge the amicus briefs submitted by Stanley
Donald, the Committee for Public Counsel Services, and Families
for Justice as Healing.
2 At the time of the shooting, the defendant was twenty
years old and his codefendant was fifteen years old.
4
indictments charging the defendant with murder in the first
degree, armed assault with intent to rob, unlawfully carrying a
firearm, and conspiracy to commit robbery.3
Before trial, the prosecutor offered the defendant a plea
arrangement; the Commonwealth was willing to reduce the charges
against him from murder in the first degree to murder in the
second degree, if both the defendant and the codefendant agreed
to plead guilty to the same charges.4 The defendant told police
that he had used the gun involved in the shooting, and his
counsel indicated to the prosecutor that his client was
"anxious" to plead guilty to murder in the second degree. The
codefendant, however, declined the plea offer, and the case
proceeded to a joint trial.
During deliberations, the jury sent three questions to the
judge that indicated that they were likely to find the defendant
guilty of murder in the first degree and the codefendant guilty
of murder in the second degree. After further consultation with
his counsel, the codefendant pleaded guilty to murder in the
second degree. Counsel for the defendant argued vigorously that
his client should be offered the same plea agreement, but the
3 The conspiracy charge was not pursued at the joint trial.
4 This type of plea agreement also is referred to as a
package, contingent, linked, or wired plea. See United States
v. Mescual-Cruz, 387 F.3d 1, 3 (1st Cir. 2004), cert. denied,
543 U.S. 1175 and 543 U.S. 1176 (2005).
5
prosecutor declined to engage in further plea negotiations with
the defendant; the prosecutor asserted that all plea
negotiations had terminated when the jury began their
deliberations. After the judge rejected the defendant's
attempted plea, the defendant was convicted of murder in the
first degree and sentenced to the statutorily mandated sentence
of life in prison without the possibility of parole.5
In 1980, the defendant filed a motion for a new trial in
the county court; he argued that he was entitled to a new trial
because he should have been permitted to plead guilty to murder
in the second degree, as the prosecutor initially had offered,
and as his codefendant later had done. After the single justice
remanded the case to the Superior Court for an evidentiary
hearing, a Superior Court judge determined that there had been
no outstanding plea offer when the case was given to the jury.
The single justice then denied the defendant's motion, and the
defendant appealed from the denial of the motion for a new
trial; we consolidated that appeal with the defendant's direct
appeal. We accepted the motion judge's finding that the plea
offer was no longer in effect once the jury received the case
and affirmed the convictions and the denial of the motion for a
5 The defendant also was convicted of assault with intent to
rob, G. L. c. 265, § 18, and unlawfully carrying a firearm,
G. L. c. 269, § 10 (a).
6
new trial. See Commonwealth v. Smith, 384 Mass. 519, 523
(1981).
The defendant subsequently filed two additional motions for
a new trial. The second, filed in August of 1996, asserted that
the prosecutor's exercise of certain peremptory challenges had
been based on race and, thus, unconstitutional; that motion was
denied without a hearing. The third motion for a new trial,
filed in September of 2007, argued that trial counsel had been
ineffective, the trial judge's decision to preclude the
defendant from cross-examining his codefendant was error, and
the plea agreement that had been offered to the defendant should
be enforced "in the interest of justice." That motion also was
denied.
In April of 2020, more than a decade later, the defendant
filed the instant motion to reduce the verdict from murder in
the first degree to murder in the second degree. This time, the
defendant argued that the "locked plea" offered to him and his
codefendant violated his rights to due process under the Federal
Constitution and the Massachusetts Declaration of Rights.
Hearings on the defendant's motion were held in February and
April of 2021. On June 2, 2021, the motion judge issued a
memorandum and order in which the judge concluded that "the
locked plea offer was fundamentally unfair and in violation of
substantive due process," and ordered a hearing on the issue of
7
remedy. On June 9, 2021, the Commonwealth filed its first
notice of appeal. The hearing on the appropriate remedy was
held on July 27, 2021. Following the hearing, the parties
jointly filed a memorandum in which they agreed that, in light
of the judge's decision, the appropriate remedy would be to
reduce the defendant's conviction of murder in the first degree
to murder in the second degree. On August 4, 2021, the motion
judge reduced the verdict from murder in the first degree to
murder in the second degree, pursuant to Mass. R. Crim.
P. 25 (b) (2), as amended, 420 Mass. 1502 (1995).
The Commonwealth filed a second notice of appeal on
August 13, 2021. In an e-mail message to defense counsel on
September 9, 2021, the appellate prosecutor indicated that she
was going to pursue the appeal as soon as she received
transcripts of the prior hearings, which had been handled by a
different prosecutor. On September 15, 2021, the defendant was
resentenced, and he therefore became eligible for parole, as by
that point he had been incarcerated for forty-three years. See
Commonwealth v. Perry, 389 Mass. 464, 470 (1983) ("parole
is . . . available to a person convicted of murder in the second
degree who has served fifteen years in prison"); G. L. c. 265,
§ 2; G. L. c. 127, § 133A. The transcripts of the hearings were
ordered on November 5, 2021, and the prosecutor received them on
December 3, 2021. Nothing further was filed until the
8
prosecutor filed the instant gatekeeper petition on January 21,
2022.
A hearing on the defendant's application for release on
parole ultimately was scheduled for January 27, 2022. In
response to the Commonwealth's filing of its gatekeeper
petition, on January 27, 2022, the defendant filed an emergency
motion to dismiss the petition, citing its untimeliness. On
that same day, the Commonwealth filed a motion to accept its
petition as timely filed due to delays in receiving the hearing
transcripts necessary for drafting the petition, absences
related to COVID-19 and vacation, and the unusually busy
workload in the district attorney's office during the filing
period. Also on the same day, the single justice allowed the
motion for late filing, while the defendant's parole hearing
went forward as scheduled.
Thereafter, the defendant sought reconsideration of the
single justice's allowance of the Commonwealth's motion for
leave for late filing of its gatekeeper petition. See
Commonwealth v. Jordan, 469 Mass. 134, 144-145 (2014). The
defendant argued that the Commonwealth had failed to demonstrate
excusable neglect or good cause, as required by Mass. R. A. P.
4 (c), as appearing in 481 Mass. 1606 (2019), or Mass. R. A. P.
14 (b). Following a hearing and supplemental briefing, the
gatekeeper petition was allowed, contingent upon the full
9
court's approval of the Commonwealth's motion for leave for late
filing; the matter then was reserved and reported to the full
court.
2. Discussion. In reserving and reporting the matter, the
single justice posed two questions to the full court:
(1) "whether the defendant's right to due process or to the
protections against double jeopardy preclude reinstatement of a
conviction of murder in the first degree after the time in which
to file a gatekeeper petition challenging the reduction in the
verdict has expired"; and (2) "whether the thirty-day deadline
for filing set forth in [Mains, 433 Mass. at 36 n.10,] allows
adequate time in which to file a gatekeeper petition, or whether
a different period of time is warranted."
a. Filing deadline for petition pursuant to G. L. c. 278,
§ 33E. The procedures set forth in G. L. c. 278, § 33E, govern
petitions for leave to appeal from postconviction motions in
capital cases, after this court has affirmed the defendant's
conviction. See Commonwealth v. Francis, 411 Mass. 579, 583
(1992); Dickerson v. Attorney Gen., 396 Mass. 740, 742 (1986).
General Laws c. 278, § 33E, however, does not specify a time
period in which such a petition must be filed. Consequently,
this court has determined that "a gatekeeper petition pursuant
to G. L. c. 278, § 33E, [must] be filed within thirty days of
10
the denial of a motion for new trial." See Mains, 433 Mass.
at 36 n.10.
The Commonwealth suggests that this thirty-day period of
time for filing a gatekeeper petition should be extended or,
alternatively, that the court should recognize that the filing
window may be enlarged, within the sound discretion of the
single justice. The defendant maintains that the deadline set
forth in Mains is absolute.
The thirty-day period set forth in Mains was adopted, in
part, in reliance on the rules of appellate procedure and, in
particular, Mass. R. A. P. 4 (b), as amended, 489 Mass. 1601(2022). Rule 4 (b) governs the filing of appeals in criminal
cases, and requires a notice of appeal to be filed within thirty
days of the issuance of the challenged decision. See
Commonwealth v. White, 429 Mass. 258, 262 (1999) ("we have
concluded that the time limitations of rule 4 [b] apply to
circumstances other than those specified in that rule").
Pursuant to Mass. R. A. P. 4 (b),
"(1) In a criminal case, unless otherwise provided by
statute or court rule, the notice of appeal required by
Rule 3 shall be filed with the clerk of the lower court
within [thirty] days after entry of the judgment,
appealable order, or adjudication appealed from, or entry
of a notice of appeal by the Commonwealth, or the
imposition of sentence, whichever comes last.
"(2) If a motion for a new trial is filed under
Massachusetts Rules of Criminal Procedure 25 (b) (2) or 30
within [thirty] days of the verdict, finding of guilt,
11
judgment, adjudication, or imposition of sentence, the
period to appeal shall not terminate until [thirty] days
from entry of the order disposing of the motion. If a
motion is filed for reconsideration within [thirty] days of
entry of the order disposing of the motion, the period to
appeal shall not terminate until [thirty] days from entry
of the order disposing of the motion for reconsideration.
"(3) If a motion is filed for reconsideration within
[thirty] days of an appealable order, judgment, or
adjudication, the period to appeal from the decision for
which reconsideration was sought shall not terminate until
[thirty] days from entry of the order disposing of the
motion for reconsideration."6
Like other procedural rules governing filing periods, rule
4 permits an extension of time for filing. Under rule 4 (c),
"Upon a showing of excusable neglect, the lower court may
extend the time for filing the notice of appeal or notice
of cross appeal by any party for a period not to exceed
[thirty] days from the expiration of the time otherwise
prescribed by this rule. Such an extension may be granted
before or after the time otherwise prescribed by this rule
has expired; but if a request for an extension is made
after such time has expired, it shall be made by motion
with service upon all other parties."
Rule 14 (b) further provides for an enlargement of time,
"The appellate court or a single justice of the appellate
court in which the appeal will be, or is, docketed for good
cause shown may upon motion enlarge the time prescribed by
these rules or by its order for doing any act, or may
permit an act to be done after the expiration of such time;
but neither the appellate court nor a single justice may
enlarge the time for filing a notice of appeal beyond [one]
year from the date of entry of the judgment or order sought
to be reviewed, or, in a criminal case, from the date of
the verdict or finding of guilt or the date of imposition
of sentence, whichever date is later."
6 In February 2022, after the Commonwealth filed its
gatekeeper petition, Mass. R. A. P. 4 (b) was amended to replace
rule 4 (b) (2) and to add rule 4 (b) (3). These changes are not
relevant to this case.
12
Thus, the approximately 140-day delay here was subject to
rule 14 (b). Contrary to the defendant's argument that, once
filing was delayed thirty-one days past entry of the order
reducing his degree of guilt, any challenge exceeded the period
prescribed in Mains, and the single justice had no authority to
extend that period, the Commonwealth could have sought leave for
late filing of its gatekeeper petition at any point within the
140-day period of delay.
We note that the type of filing contemplated by rule 4 (b)
when Mains was adopted was (and continues to be) a notice of
appeal, which requires significantly less than what is necessary
to write a gatekeeper petition. Filing a notice of appeal
merely requires a one-sentence document indicating the party's
intent to appeal and the names of all parties. See Mass. R. A.
P. 3 (c), as appearing in 481 Mass. 1603 (2019). By contrast,
the petition that must be filed pursuant to G. L. c. 278, § 33E,
requires extensive legal research and writing; a petitioner must
demonstrate that there is a "new and substantial" issue worthy
of review by the full court. "[W]here the Commonwealth rather
than the defendant petitions the gatekeeper, 'the single
justice's primary focus should be on the meritoriousness or
"substantiality" of the Commonwealth's position on appeal and
less on the newness of the underlying issue.'" Commonwealth v.
13
Watkins (No. 1), 486 Mass. 801, 803 n.6 (2021), quoting
Commonwealth v. Smith, 460 Mass. 318, 322 (2011).
Moreover, a denial of a gatekeeper petition pursuant to
G. L. c. 278, § 33E, may not be appealed. If the single justice
denies the petition, "that decision 'is final and
unreviewable.'" See Commonwealth v. Wampler, 488 Mass. 1003,
1004 (2021), quoting Commonwealth v. Anderson, 482 Mass. 1027,
1027 (2019).
Thus, following issuance of the rescript in this case,
parties will have sixty days following the allowance or denial
of a postconviction motion within which to file a gatekeeper
petition pursuant to G. L. c. 278, § 33E. See Mandeville v.
Gaffney, 487 Mass. 308, 310 (2021) (Mains "thirty-day deadline
was imposed prospectively"). The extension of the filing
deadline will allow parties the time necessary to obtain
transcripts, conduct research, and craft arguments. The
extension of the filing period will promote fairness and equity,
will serve the defendant's and the Commonwealth's interests in
an accurate verdict, and also will protect all parties'
interests in the finality of judgments.
We turn to consider whether, here, there was good cause for
the delay in filing of the Commonwealth's petition.
b. Good cause. As stated, because G. L. c. 278, § 33E, is
silent concerning the procedural restraints on filing such
14
challenges, we analyze delays in filing gatekeeper petitions
under the appellate standards of "excusable neglect" and "good
cause." See Mass. R. A. P. 4 (c), 14 (b). The rules of
appellate procedure give "courts broad discretion and authority
to permit a deserving party, on showing of 'excusable neglect'
or 'good cause,' to prosecute an appeal notwithstanding [the]
failure to comply with a procedural time limitation." Giacobbe
v. First Coolidge Corp., 367 Mass. 309, 315-316 (1975).
Rule 4 (c) allows a motion judge to grant an extension of time
of up to sixty days for filing a notice of appeal, upon a
showing of excusable neglect. See Mass. R. A. P. 4 (c).
Excusable neglect, for purposes of late filing under rule 4 (c),
applies to situations that are "unique or extraordinary" and not
to any "garden-variety oversight." Shaev v. Alvord, 66 Mass.
App. Ct. 910, 911 (2006), citing Feltch v. General Rental Co.,
383 Mass. 603, 613-614 (1981). At the same time, rule 14 (b)
provides the single justice or an appellate court authority to
enlarge the time in which to file a notice of appeal to up to
one year, upon "good cause shown." See Mass. R. A. P. 14 (b).
Thus, for the Commonwealth's gatekeeper petition to be
timely filed, it would have had to have been filed by
September 3, 2021, or thirty days after entry of the judge's
decision and order on resentencing. See Mandeville, 487 Mass.
at 310; Mass. R. A. P. 14 (a). Rule 4 (c) only permits an
15
extension of up to sixty days, which would have required the
Commonwealth to have filed its petition by October 4, 2021,
whereas the Commonwealth ultimately filed its petition on
January 21, 2022. Accordingly, we analyze the Commonwealth's
delay under Mass. R. A. P. 14 (b), which permits the enlargement
of time in which to file a notice of appeal to up to one year,
upon a showing of good cause.
The Commonwealth maintains that there were "unique and
extraordinary circumstances that caused the delay" and which
demonstrate the existence of good cause. The appellate
prosecutor assigned to the case details four reasons in support
of her argument that there was good cause to excuse the
Commonwealth's delay. First, the prosecutor avers that she was
"repeatedly misled" by other members of her office about
transcripts of the hearings on the defendant's motion to reduce
the verdict having been ordered; the prosecutor stated that
without those transcripts, it would have been unethical for her
to draft the gatekeeper petition, because she would not have
known what the previously assigned prosecutor had argued at the
hearings on the motion to reduce the verdict. Second, at the
time that the gatekeeper petition should have been drafted, the
prosecutor's unit was missing five members, which led to an
overwhelming workload and the inability to reassign drafting of
the petition to anyone else in the unit. Third, the prosecutor
16
asserts that she followed the well-established practice for
filing a late-filed motion, based on advice from the county
clerk's office. Finally, the prosecutor describes three periods
of time in which COVID-19-related absences required her to
quarantine herself and care for her children, and also cites
time she took off during her children's school vacations.
Whether a party has established good cause to excuse a
delay is a determination within the sound discretion of the
reviewing court. See Jordan, 469 Mass. at 144-145; Commonwealth
v. Barboza, 68 Mass. App. Ct. 180, 183 (2007).
"Excusable neglect, at least in theory, is something other
than, 'Oops, I forgot.' It is meant to apply to circumstances
that are unique or extraordinary, not any 'garden-variety
oversight.'" (Footnote omitted.) Tai v. Boston, 45 Mass. App.
Ct. 220, 222 (1998), quoting Feltch, 383 Mass. at 613–614. "It
seems clear that relief will be granted only if the party
seeking relief demonstrates that the mistake, misunderstanding,
or neglect was excusable and was not due to his own
carelessness. . . . The party seeking the relief bears the
burden of justifying failure to avoid the mistake or
inadvertence." Tai, supra at 223, quoting Reporter's Notes to
Mass. R. Civ. P. 60 (b) (1), Mass. Ann. Laws, Rules of Civil
Procedure, at 589 (1997). See Scannell v. Ed. Ferreirinha &
Irmao, Lda., 401 Mass. 155, 158 (1987); Pasquale v. Finch, 418
17
F.2d 627, 630 (1st Cir. 1969). "Discretion is not granted to
the judge to allow late filing of a notice of appeal simply
because the matter is important to the parties, the issues to be
raised in the appeal are debatable, or the consequences to the
losing party are harsh. Rather, such discretion must focus on
the nature of the acts or failures to act that are offered up as
excusable neglect." (Footnote omitted.) Shaev, 66 Mass. App.
Ct. at 911–912.
"'[G]ood cause' is a standard no less exacting than
'excusable neglect.'" Commonwealth v. Trussell, 68 Mass. App.
Ct. 452, 454 (2007), quoting Barboza, 68 Mass. App. Ct. at 183-
184. "The . . . function of [rule 14 (b)] is to care for cases
where for extraordinary reasons the party was unable to apply
for a [rule 4 (c)] extension within the time allowed in that
rule." Trussell, supra at 454-455, quoting Bernard v. United
Brands Co., 27 Mass. App. Ct. 415, 418 n.8 (1989). Therefore,
"we would not expect [rule 14 (b)] to depart substantially from
the rather exacting standard of [rule 4 (c)]" because "the time
to apply under [rule 14 (b)] can run for as much as a year."
Bernard, supra. A lower threshold for good cause "would have
the anomalous effect of making it more difficult to obtain an
extension of thirty days than it would be to obtain an extension
from thirty-one to 365 days." Trussell, supra at 455.
18
"[G]arden-variety oversight" does not constitute excusable
neglect and, therefore, does not establish good cause. See
Feltch, 383 Mass. at 614, quoting Goldstein v. Barron, 382 Mass.
181, 186 (1980). And, notably, the meaning of good cause does
not "cover the usual excuse that the lawyer is too busy."
Barboza, 68 Mass. App. Ct. at 184, quoting Feltch, supra.Of course, in criminal cases, "there are additional
considerations that the appellate court or a single
justice . . . properly [may] consider in determining [whether]
'good cause'" exists. Barboza, 68 Mass. App. Ct. at 184,
quoting White, 429 Mass. at 264. Specifically, both the
importance of the rights the defendant would lose and the
interests in judicial economy in allowing an appeal to proceed
are factors to be considered in the determination whether good
cause existed for late filing in a criminal case. See White,
supra at 264-265.
The defendant concedes that the ramifications of COVID-19
exposure and illness justified a portion of the prosecutor's
delay. Nonetheless, only about twenty-two of the 140 days of
delay were attributable to COVID-19. The remaining
approximately 118 days were due to miscommunications amongst
assistant district attorneys about whether transcripts had been
ordered, and the increased over-all workload in the office
because it was operating with five fewer assistant district
19
attorneys than it would have had if the office had been at its
full complement.
We do not doubt that the workload at the time this case was
assigned to this prosecutor was challenging. Nonetheless,
miscommunications concerning whether transcripts have been
ordered, and an increased workload, do not constitute good cause
justifying the period of delay here. See Barboza, 68 Mass. App.
Ct. at 184, quoting Feltch, 383 Mass. at 614 (justification for
delay "is not meant to cover the usual excuse that the lawyer is
too busy, which can be used, perhaps truthfully, in almost every
case. . . . It is [meant] to take care of emergency situations
only"). Furthermore, that the prosecutor relied on advice from
a clerk in deciding when and what to file also does not
constitute good cause justifying the delay here; it was the
attorney's duty to file the motion in a timely manner. See
Brown v. Quinn, 406 Mass. 641, 645 (1990) ("The concept of
excusable neglect does not embrace '[a] flat mistake of counsel
about the meaning of a statute or rule" [citation omitted]).
The Commonwealth contends that the applicable filing
deadline was confusing and that it was not clear whether the
deadline set forth in Mains, 433 Mass. at 36 n.10, was
applicable to the allowance of postconviction relief. More
specifically, the Commonwealth argues, the language in Mains,
supra, only addressed denials of motions for new trials, not
20
allowances of such motions, and therefore it was not clear
whether Mains applied in the circumstances here. The
Commonwealth contends, therefore, that we should exercise our
discretion to decide its petition on the merits, notwithstanding
the lengthy delay in filing. See Jordan, 469 Mass. at 145(deciding Commonwealth's untimely appeal despite lack of good
cause for late filing because "there sometimes has been a lack
of clarity" by single justices in application of procedural
rules governing timeliness).
The period within which to file a petition for
extraordinary relief set forth in Mains, 433 Mass. at 36 n.10,
unquestionably applied to petitions arising from both the
allowance and the denial of postconviction motions filed by
either the Commonwealth or the defendant. In Francis, 411 Mass.
at 583, for instance, we concluded that G. L. c. 278, § 33E,
applies with equal force to the Commonwealth. See Randolph v.
Commonwealth, 488 Mass. 1, 9 (2021) ("we have required both
defendants and the Commonwealth to file gatekeeper petitions in
order to appeal from decisions on a variety of motions"). Thus,
the procedural requirements imposed on defendants in filing
gatekeeper petitions also are applicable to the Commonwealth.
The language of G. L. c. 278, § 33E, itself supports the
proposition that, with respect to filing deadlines, the
Commonwealth would be subject to the limitations established in
21
Mains. General Laws c. 278, § 33E, provides that "no appeal
shall lie" unless it is allowed by a single justice of this
court; the statutory language does not state that only a
particular type of appeal, or a specific category of petitioner,
is subject to its requirements.
Moreover, since our decision in Mains, the single justice
has dismissed as untimely a number of gatekeeper petitions filed
by the Commonwealth that sought to challenge a trial court
judge's allowance of a defendant's motion for postconviction
relief. See, e.g., Commonwealth vs. Marrero, Supreme Judicial
Ct., No. SJ-2017-0441 (Suffolk County Feb. 1, 2018) (dismissing
Commonwealth's petition for leave to appeal from allowance of
defendant's motion for scientific testing as untimely);
Commonwealth vs. Lang, Supreme Judicial Ct., SJ-2016-0460
(Suffolk County Sept. 12, 2017) (denying Commonwealth's petition
for leave to appeal from trial court judge's allowance of
defendant's postconviction motion to contact members of jury,
because petition was untimely and did not otherwise raise
meritorious issue).
Finally, the Commonwealth argues that even if there were no
good cause for its delay, this case presents a meritorious issue
that is worthy of appellate review and the court should exercise
its discretion to hear the appeal despite its untimeliness.
Because we address the constitutionality of package plea offers
22
in a paired case, Commonwealth v. DiBenedetto, 491
Mass. (2023), also released today, we see no need to excuse
the Commonwealth's unreasonable delays in filing here.
3. Conclusion. The matter is remanded to the county court
for entry of an order dismissing the Commonwealth's gatekeeper
petition.
So ordered.