Commonwealth v. Barboza
Commonwealth v. Barboza
Opinion of the Court
The Commonwealth filed its present appeal after a single justice of this court allowed the defendant’s motion to extend the time for filing his notice of appeal. The Commonwealth claims that the notice was improperly allowed under Mass.R.A.P. 14 (b), as amended, 378 Mass. 939 (1979), because the defendant failed to establish “good cause” as required. The reason given by appellate counsel for the absence of a timely notice of appeal was that trial counsel had timely drafted and mailed a notice of appeal, but counsel did not follow up with the clerk to make sure it was received and docketed (which it was not).
Procedural history. On April 11, 2005, the defendant was convicted of various crimes and was sentenced on April 15, 2005. Approximately ten months later, on January 31, 2006, appellate counsel (who had been appointed the previous day) filed motions with the single justice to allow late notice of appeal and to waive the entry fee due to indigency. Appellate counsel’s affidavit stated that the defendant did not file a notice of appeal within the time prescribed by Mass.R.A.P. 4(b), as amended by 431 Mass. 1601 (2000).
On February 28, 2006, close to eleven months after sentencing, appellate counsel filed with the single justice a renewed motion to allow late notice of appeal.
On March 16, 2006, the Commonwealth filed a notice of appeal from the March 1, 2006, order of the single justice allowing the filing of the late notice of appeal. The Commonwealth also filed a motion to reconsider and to vacate the order allowing the motion to extend time to file the notice of appeal. The defendant filed an opposition to the motion to reconsider that included an affidavit of trial counsel. Trial counsel stated that the defendant told him, after sentencing, that he wanted to appeal and that on or about April 18, 2005, counsel mailed to the clerk’s office of the Superior Court in Suffolk County a motion to revise and revoke, notice of appeal, motion to withdraw, and a motion to appoint appellate counsel. (The Superior Court docket does not reflect such filings.) Upon reconsideration, the single justice allowed the action of March 1, 2006, to stand.
Discussion. In criminal cases, a notice of appeal must be filed with the clerk of the lower court within thirty days after the entry of judgment or order, entry of the Commonwealth’s notice of appeal, or imposition of sentence. Mass.R.A.P. 4(b).* **
Where, as here, in a criminal case, the defendant filed a motion to allow a late notice of appeal after the rule 4(c) time limit had expired, but prior to the one-year limit set forth in rule 14(b), there is a question whether the “good cause” standard of rule 14(b) applied by the Appeals Court should be the equivalent of the “excusable neglect” standard of rule 4(c) applied by the trial court. In civil cases, the “good cause” standard of rule 14(b) does not depart substantially from the “excusable neglect” standard. See Bernard v. United Brands Co., 27 Mass. App. Ct.
“ ‘circumstances that are unique or extraordinary.’ . . . [It] ‘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.’ Stem, Changes in the Federal Appellate Rules, 41 F.R.D. 297, 299 (1967). ‘A flat mistake of counsel about the meaning of a statute or rule may not justify relief: relief is not extended “to cover any kind of garden-variety oversight.” ’ Goldstein v. Barron, 382 Mass. 181, 186 (1980), quoting from Pasquale v. Finch, 418 F.2d 627, 630 (1st Cir. 1969).”
Feltch v. General Rental Co., 383 Mass. 603, 614 (1981). See Bernard v. United Brands Co., supra. A determination of good cause or excusable neglect in civil cases, therefore, may result in seemingly harsh outcomes. See Shaev v. Alvord, 66 Mass. App. Ct. 910 (2006) (reversing lower court order allowing motion to extend time to file notice of appeal where miscommunication between senior partner and associate did not qualify as excusable neglect).
In a criminal case, however, there are additional considerations that the appellate court or a single justice may properly consider in determining “good cause,” including “the importance of the rights lost to the defendant should his motion for enlargement be denied.” Commonwealth v. White, 429 Mass. 258, 264 (1999). Commonwealth v. Abreu, 66 Mass. App. Ct. at 798. Compare Shaev v. Alvord, 66 Mass. App. Ct. at 911-912 (“[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”). An additional consideration is the interests of judicial economy in allowing
We start the analysis with the presumption that the mailing of a properly addressed letter is prima facie evidence of receipt by the intended recipient. See Eveland v. Lawson, 240 Mass. 99, 103 (1921) (“[t]he depositing of a letter in the post office, postage prepaid, properly addressed to a person at his place of business or residence, is prima facie evidence that it was received in the ordinary course of mails”); Anderson v. Billerica, 309 Mass. 516, 518 (1941) (“[t]he mailing, postage prepaid . . . , of a properly addressed letter is prima facie evidence of its receipt by the addressee”); Mutual Bank for Sav. v. Silverman, 13 Mass. App. Ct. 1059, 1060-1061 (1982), overruled in part on other grounds, Carmel Credit Union v. Bondeson, 55 Mass. App. Ct. 557, 561 (2002) (“[ejvidence of the mailing will ordinarily warrant a finding that the notice was received by the intended recipient”). In light of such a presumption, there would be no abuse of discretion in crediting the undisputed statements made in the affidavits of appellate counsel and trial counsel that trial counsel drafted and mailed the notice of appeal in a timely manner. Here, the single justice had to determine whether the failure of trial counsel to verify that the notice of appeal had been received and filed by the clerk amounted to a showing of good cause sufficient to permit an enlargement of time. See Shaev v. Alvord, 66 Mass. App. Ct. at 912 (“discretion must focus on the nature of the acts or failures to act that are offered up as excusable neglect”). While the single justice did not state particular findings as to “good cause,” he did cite to Commonwealth v. White, 429 Mass. at 264, which identifies the importance of rights lost to the defendant should the defendant’s motion for enlargement be denied as a consideration in a good cause showing. Weighing the importance of the rights lost to Barboza,
Order of the single justice dated March 1, 2006, affirmed.
Although the motion refers to Mass.R.A.P. 3(b), the Commonwealth appropriately assumed that the reference was to Mass.R.A.P. 4(b). For the pertinent text of rule 4(b), see note 4, infra.
The appellate docket sheet reflects that the defendant also filed a motion to waive entry fee on February 28, 2006, which was allowed on the same day.
Appellate counsel also stated: “The trial court will not order a trial transcript unless a notice of appeal is filed. Although I do not have the benefit of the transcript to evaluate the case for appellate issues, my conversations with [trial counsel] and [the defendant] indicate that there may be issues regarding the possession of the contraband charged in the indictment.”
In relevant part, rule 4(b) provides: “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 or order appealed from; or entry of a notice of appeal by the Commonwealth; or the imposition of sentence.”
Rule 4(c) states: “Extension of Time for Filing Notice of Appeal. Upon a
Rule 14(b) states: “Enlargement of Time. The appellate court or a single justice 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.”
We need not address whether in a civil case the failure of trial counsel to verify receipt of the notice of appeal would have provided a sufficient basis
In the future, we would strongly urge the criminal defense bar to change its practices in light of the responsibility of trial counsel to continue to represent the defendant on appeal until the trial court permits withdrawal. Mass.R.A.P. 3(e), as amended, 430 Mass. 1602 (1999). See Commonwealth v. Burns, 43 Mass. App. Ct. at 266. This situation could be avoided if trial counsel verified receipt of the notice of appeal by, for example, confirming receipt with the clerk’s office or sending the notice of appeal by certified mail or return receipt requested. See Carmel Credit Union v. Bondeson, 55 Mass. App. Ct. at 560 (“Notice by certified or registered mail is a common method of providing notice in business, governmental, and legal contexts and is considered ‘reasonably calculated’ to provide actual notice”). See 1 Aheam, Appellate Practice in Massachusetts § 11.2.1 (Mass. Cont. Legal Educ. 2d ed. 2000 & Supp. 2004) (“In criminal cases in which the defendant is represented by counsel at trial . . . , trial counsel must continue representation until permitted to withdraw by the trial court and until an appearance is filed by successor counsel. If counsel wishes to withdraw, a motion to withdraw should be filed at the time of filing the notice of appeal. Counsel is responsible for marking up the motion for hearing within seven days after filing. If the lower court allows the motion to withdraw and if the defendant is indigent, the judge will assign the Committee for Public Counsel Services [CPCS] to assume representation. Mass.R.A.P. 3[e], See also G. L. c. 261, § 27B”).
Reference
- Full Case Name
- Commonwealth v. Darryl Barboza
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- 8 cases
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- Published