Pires v. CommonwealthPires v. Commonwealth
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Eleven months after his convictions on three felony indictments, the petitioner filed a petition for writ of error in the Supreme Judicial Court for the county of Suffolk. He alleged that the failure of his retained counsel to file a timely bill of exceptions or otherwise to preserve his right to seek appellate review of the convictions constituted ineffective assistance of counsel. The matter was referred by the court to a special master and commissioner. After hearing evidence and examining the transcript of the petitioner’s Superior Court trial, the master filed a report in which he discussed several courses of action open to the court, but ultimately recommended that the Superior Court judgments be affirmed. A single justice confirmed the master’s report. The matter was argued before a single justice. After a review of the record, the master’s report and the transcript of the trial, the single justice concluded that an appeal would be futile, and directed the entry of judgment affirming the Superior Court judgment of conviction. The petitioner appealed to the full court pursuant to Mass. R. A. P. 3, 365 Mass. 845 (1974). We affirm the single justice’s denial of the reinstatement of the petitioner’s appellate rights.
The findings of fact made by the master can be stated briefly. The petitioner was indicted for assault and battery, assault with intent to rape, and breaking and entering with the intent to commit a felony. The petitioner retained counsel to represent him at. his jury trial which commenced on March 20,1974. On the following day, the jury returned a verdict of guilty on each of the indictments. Thereafter, the petitioner’s motion, which had been taken under advisement by the trial judge, that the trial be subject to the provisions of
After the guilty verdicts were returned, the petitioner was told by his counsel that relief from the adverse judgments would depend completely on the discovery of evidence that would cast doubt on the credibility of the Commonwealth’s witnesses. Counsel interviewed several relatives of the petitioner in an attempt to obtain new evidence, but his endeavor was unsuccessful. He reported this failure to the petitioner in May, 1974. Counsel next met with the petitioner sometime in September, 1974. At this conference, counsel for the first time provided the petitioner with a general explanation of appellate review. On October 18,1974, during a conference held prior to the petitioner’s trial on other charges, counsel informed the petitioner that he had not sought appellate review of the March 21 convictions. The petitioner appeared in the Superior Court, Suffolk County, with counsel on October 21, 1974, and submitted a pro se motion requesting that the court discharge his attorney. Thereupon, counsel made an oral motion asking to be permitted to withdraw voluntarily as counsel. Counsel‘s motion was allowed with the petitioner’s consent. The court appointed the Massachusetts Defenders Committee to represent the petitioner.
The master’s findings indicate that counsel knew the petitioner was dissatisfied with the verdicts,
1
but in good
The right of a criminal defendant to seek appellate review of a judgment of conviction rendered by the Superior Court is secured by statute. See, e.g.,
No bill of exceptions was seasonably filed subsequent to the petitioner’s convictions. The petitioner contends that the resulting dissipation of his appellate rights was caused by counsel’s failure to inform him of his statutory right to
Before turning to the petitioner’s claim that he is entitled to a late appeal regardless of the likelihood of its success, it is appropriate to consider whether a defendant must be informed by retained or appointed counsel of his statutory right to appeal.
The failure of the court-appointed counsel to prosecute an appeal is clearly a per se deprivation of the right to counsel unless the defendant waives the appeal or counsel complies with the procedures for withdrawal set forth in
Anders
v.
California,
386 U.S. 738 (1967). See
Wilbur
v.
Maine,
421 F.2d 1327, 1329 (1st Cir. 1970). Some courts, drawing a distinction between privately retained counsel and court-appointed counsel, hold retained counsel to a less severe standard.
United States ex rel. O‘Brien
v.
Maroney,
423 F.2d 865 (3d Cir. 1970).
Hendrickson
v.
Overlade,
131 F. Supp. 561 (N.D. Ind. 1955). Among the rationales on which these courts rely is that, unless retained counsel’s conduct was known by responsible officials in the judicial system, the State action requirement of the Fourteenth Amendment to the United States Constitution is not satisfied. Conversely, other courts, relying either on the Sixth Amendment guarantee of the right to assistance of counsel or on the due process clause of the Fourteenth Amendment, have found constitutional error when the incompetence of retained counsel results in the forfeiture of a defendant’s appellate rights, regardless of the degree of official involvement.
United States ex rel. Randazzo
v.
Follette,
444 F.2d 625 (2d Cir.), cert, denied, 404 U.S. 916 (1971).
Goodwin
v.
Cardwell,
432 F.2d 521 (6th Cir. 1970).
Shipman
v.
Gladden,
253 Ore. 192 (1969). These courts reason that inadequate representation by retained counsel during the postconviction stage is unlikely to come to the attention of the court. They find it is an unrealistic assumption that the convicted defendant acquiesces in the errors of his retained counsel by not notifying the court within the period of time for filing an appeal as to his dissatisfaction with counsel’s representation. See Note, Effec
The Fifth Circuit takes an intermediate approach: Grossly deficient representation by retained counsel constitutes a denial of due process, not because State officials were aware of the unfairness, but because the judicial system itself has failed. Fitzgerald v. Estelle, 505 F.2d 1334, 1336 (5th Cir.), cert, denied, 422 U.S. 1011 (1975). On the other hand, when the conduct of retained counsel falls below the level of effectiveness demanded by the Sixth Amendment, but is not sufficiently egregious to render the proceedings fundamentally unfair, the Fifth Circuit holds that State involvement through actual or constructive knowledge of the error by the court or responsible State officials must be demonstrated. Fitzgerald v. Estelle, supra at 1336-1338.
In Commonwealth v. Gauthier, 361 Mass. 394, cert, denied, 409 U.S. 869 (1972), we considered the State action requirement in the context of a case where the convicted defendant alleged that he was not informed of his right to court-appointed counsel on appeal. We held that where the defendant was represented by retained counsel at trial the court was not obligated to inform him of his rights to appeal and to court-appointed counsel to represent him during the appeal. We based this conclusion on the absence of State action where the defendant was represented by retained counsel and neither the court nor any other responsible State official was made aware of the defendant’s desire to appeal with the assistance of court-appointed counsel. In that case the State’s judicial machinery did not result in fundamental unfairness to the defendant. The defendant had been informed by his attorneys of his right to appellate review and of the time limitations for initiating an appeal, yet he waited almost fifteen years before moving for a new trial. See Commonwealth v. Nolin, ante, 45, 47 (1977).
As in
Gauthier,
the retained counsel’s conduct in the case at bar was not so egregious as to trigger the due process clause of the Fourteenth Amendment. Nevertheless, even if there is no constitutional obligation, counsel’s
The petitioner’s reliance on
Rodriquez
v.
United States,
395 U.S. 327 (1969), to support his contention that an application for a late appeal cannot involve consideration of the merits of the appeal is misplaced. In that case, the
The First Circuit has held that the
Rodriquez
holding, which involved a Federal defendant, is equally applicable to State defendants.
Wilbur
v.
Maine,
421 F.2d 1327 (1st Cir. 1970). Despite the Maine Supreme Judicial Court’s determination that the petitioner Wilbur was not prejudiced by his counsel’s failure to prosecute an appeal, the First Circuit in
Wilbur
v.
Maine, supra
at 1330, ordered the grant of a writ of habeas corpus unless the State court reinstated the appeal or the State showed that the petitioner’s claim of ineffectiveness of counsel is without merit. Nothing in that decision, however, limits the State court’s power to screen out frivolous appeals in a nondiscriminatory and fair manner. The State court in
Wilbur
dismissed the petitioner’s case without affording him a hearing. In the case at bar, however, the single justice had the benefit of hearing argument, considering the parties’ mem-oranda of law, and reviewing the trial transcript and master’s report. Although the parties had not submitted full appellate briefs, the single justice had before him a suffi
On a petition for writ of error to reinstate appellate rights, once the facts have been established, relief may be denied if the court concludes that the appeal would be frivolous. The single justice applied this standard in determining that appellate review would not avail this petitioner. Although the single justice stated that an appeal would be “futile,” we assume from our examination of the record that he meant that the appeal would be frivolous — that is, it not merely lacked merit, but would not have a prayer of a chance. 5
Judgment affirmed.
Notes
In the petition for writ of error and in the answer both parties state that the petitioner instructed his counsel to appeal his convictions. The master found, however, that the petitioner did not direct his counsel to appeal. The petitioner now argues the issue before this court in these terms: “Where a defendant, desirous of attacking his conviction, fails to take a timely appeal due to the failure of his counsel to inform him of the necessary steps or to act himself, he is entitled to appeal late without any need of showing that his appeal will succeed.” We address ourselves to that argument.
The master found, however, that counsel did at some time inform the petitioner that he could seek a review of his sentences by the Appellate Division of the Superior Court. See
Although no comparable rule was in effect at any time relevant to this proceeding, we note that a majority of the judges of the Superior Court recently adopted an amendment to Superior Court Rule 65, to take effect January 1,1978. That rule will provide as follows:
“CLAIM OF APPEAL. After imposing judgment and sentence in a case which has gone to trial on a plea of not guilty, the judge or clerk shall forthwith advise the defendant of his right to appeal, and the clerk shall execute a statement in writing to that effect. The clerk shall have no duty to advise the defendant of any right of appeal after sentence is imposed following a plea of guilty or nolo contendere. Defendant’s counsel shall be responsible for perfecting and prosecuting the appeal unless such counsel is relieved of that responsibility, after a hearing on counsel’s motion to withdraw. An appeal under General Laws Chapter 278, Section 28 shall be claimed within twenty days after the judgment from which the appeal is taken.”
The adoption of such a rule may preclude questions such as that raised in this case. The provisions of Standard 8.2 should be observed by both retained and appointed counsel as part of their professional responsibility even after the effective date of the amended rule 65.
We would be more inclined to reinstate the petitioner’s appeal without screening for frivolous claims if this were a case involving ineffectiveness of counsel at trial as well as on appeal. See Commonwealth v. Saferian, supra at 90 n.l. Counsel‘s blunders at trial should not be denied full exposure because counsel subsequently blunders an appeal. However, this is not the case before us. Nothing we say here is to be taken as an intimation that we depart from the standards set forth in Saferian, the issue involved here being one distinct from that before the court in Saferian.
Our review of the record also persuades us that an appeal would be frivolous. Since the petitioner’s trial was not made subject to the provisions of
In his memorandum of law submitted to the single justice, the petitioner claimed that there was insufficient evidence to support a finding of assault with intent to rape or breaking and entering with intent to commit a felony. Petitioner’s counsel did not move for a directed verdict (see Commonwealth v. Gricus, 317 Mass. 403, 405 [1944]), and thus we can grant relief only in cases involving a “substantial risk of a miscarriage of justice,” Commonwealth v. Freeman, 352 Mass. 556, 564 (1967). No such risk exists here because the convictions were based on sufficient evidence. There was evidence that the complainant was awakened about 4 A.M. by a man who entered her apartment by breaking the glass in the kitchen door; that the man, naked below his waist, began to kiss the complainant in her bed; that when she tried to call the police, he ripped the telephone out of the wall and hit her; and that he subsequently flung her on the bed, told her to undress, and got on top of her.
Where the only exception saved was to the exclusion of an apparently collateral line of questioning, and where the trial transcript does not disclose a substantial risk of injustice which would permit review despite the absence of proper exceptions, the single justice did not err in refusing to restore the appellate rights of the petitioner.