Commonwealth v. McConaga
Commonwealth v. McConaga
Opinion of the Court
The issue in these appeals by the defendant and
Procedural background. Among other offenses, the defendant was charged with trafficking in cocaine.
On January 26, 2009, as its first written challenge to the correctness of the judge’s decision, the Commonwealth filed a motion to reconsider on the ground that the judge had not made findings and the parties had not discussed whether there was a sufficient nexus shown to connect the likelihood of finding evidence of criminal conduct on the person of the defendant separate from the vehicle. Following the filing of an opposition by the defendant, on March 4, 2009, the Commonwealth’s motion for reconsideration was denied, from which a notice of appeal was filed.
Discussion. The Commonwealth contends that its motion to reconsider was filed within a reasonable time in order to bring an appeal from the judge’s original decision on the motion to suppress properly before us. We disagree.
Rules 15(a)(2) and 15(b)(1) of the Massachusetts Rules of Criminal Procedure govern the procedure for an appeal from a judge’s decision on a motion to suppress and the time for filing the appeal, respectively. Rule 15(b)(1), as appearing in 422 Mass. 1502 (1996), states that “[a]n application for leave to appeal under subdivision (a)(2) [pertaining to the right of appeal from an order determining a motion to suppress evidence] shall be made by filing within ten days of the issuance of notice of the order being appealed, or such additional time as either the trial judge or the single justice of the Supreme Judicial Court shall order, (a) a notice of appeal in the trial court, and (b) an
“We agree with the Commonwealth that the availability of appellate review does not preclude reconsideration by the judge of his prior order.” Commonwealth v. Mandile, 15 Mass. App. Ct. 83, 85 (1983). A party may timely appeal from an order on reconsideration, but as conceded by the Commonwealth, it is of little advantage given the abuse of discretion standard that must be applied to the judge’s order on reconsideration. “It is settled that a judge has considerable discretion to reconsider prior orders, provided the request is made within a reasonable time.” Commonwealth v. Pagan, 73 Mass. App. Ct. 369, 374 (2008), quoting from Commonwealth v. Gonsalves, 437 Mass. 1022, 1022 (2002). Here, the Commonwealth seeks to appeal from the allowance of a motion to suppress; it contends that the filing of its motion to reconsider, filed sixty-six days after the motion was decided, and its appeal from the denial thereof, is sufficient in order to bring an appeal from the original order of suppression, even though the Commonwealth failed to timely file a notice of appeal on the suppression order and the application for leave to appeal, or a timely motion to extend the time to file its notice and application. In other words, at issue here is whether the Commonwealth’s motion to reconsider was adequate to revive the Commonwealth’s appellate rights that had lapsed under rule 15, given its failure to file a notice of appeal and application for leave in compliance with rule 15(b)(l)’s time requirements.
Many of the cases on which the Commonwealth relies were decided at a time when a motion to reconsider was allowed to be filed within an appeal period of a “reasonable time.” Contrast Commonwealth v. Balboni, 419 Mass. 42, 43-44 (1994) (post-
Notwithstanding its pre-2000 vintage, when the time for the Commonwealth to file an interlocutory appeal from the allowance of a motion to suppress was thirty days, see note 6, supra, the case of Commonwealth v. Bouvier, 399 Mass. 1002 (1987), is instructive for general principles that apply with equal force today. There, the court stated: “The Commonwealth failed to file a notice of appeal as required by Mass. R. A. P. 3 (a), as amended, 378 Mass. 924 (1979), within the thirty-day time
We likewise consider the motion for reconsideration to have been untimely and ineffective to revive the Commonwealth’s appeal rights from the original order allowing the motion to suppress. See Commonwealth v. Montanez, 410 Mass. 290, 294 nn.4, 5 (1991) (motion for reconsideration must be brought within period allocated for noticing appeal, and if untimely filed, motion does not stop appeal period until motion is denied). In Commonwealth v. Montanez, the defendant moved for a new trial. Id. at 294. Thirty-six days following its denial, the defendant moved for reconsideration, which was denied. Ibid. The defendant then appealed both orders, and the Supreme Judicial Court held that the defendant’s motion for reconsideration and his appeal from the denial of the motion for new trial were both time barred. Ibid. See Commonwealth v. Haskell, 438 Mass. 790, 792 (2003), citing Commonwealth v. Balboni, 419 Mass, at 43-44; Commonwealth v. Patton, 458 Mass. 119, 124 n.7 (2010).
Thus, in no. 10-P-579, the order entered on May 1, 2009, is reversed and a new order is to enter allowing the defendant’s motion to dismiss the Commonwealth’s appeal. In no. 10-P-459, the Commonwealth’s appeal is dismissed.
So ordered.
Deciding as we do in the defendant’s appeal (no. 10-P-579) that it was error to deny his motion to dismiss the Commonwealth’s appeal, we therefore dismiss the Commonwealth’s appeal (no. 10-P-450) and do not separately address its merits.
The defendant was also charged with unlawful possession of a firearm and unlawful possession of a large capacity firearm; the lawfulness of the police seizure of the firearms appears yet to be decided in the trial court.
The defendant’s motion to suppress also complained that the affidavit, which was based upon information from a confidential informant, was insufficient to satisfy the Aguilar-Spinelli test. See Aguilar v. Texas, 378 U.S. 108 (1964); Spinelli v. United States, 393 U.S. 410 (1969). The judge decided this issue against the defendant, and given our decision, it is one we need not address.
On March 12, 2009, the Commonwealth filed its notices of appeal from the orders allowing the defendant’s motion to suppress and denying its motion for reconsideration, and filed a motion to extend the time for filing its application to a single justice of the Supreme Judicial Court for leave to appeal the suppression order. The motion to extend time was granted by the Superior Court judge on May 1, 2009; given the result we reach, this order is reversed. The Commonwealth’s leave to appeal from the suppression order was granted by the single justice on May 29, 2009; it appears that the single justice did not address the timeliness issue of the appeal.
general Laws c. 278, § 28E, does not provide the Commonwealth a period of time in which to file its appeal beyond the ten days provided by Mass.R. Crim.P. 15, given that § 28E references Mass.R.A.R 4(b), as amended, 431 Mass. 1601 (2000), which, in turn, sets a thirty-day appeal period in the absence of a specific court rule. See Reporter’s Notes to Mass.R.A.R 4(b), 47 Mass. Gen. Laws Ann., at 1010 (West 2006) (“Prior to the 2000 amendment, Appellate Rule 4[b] . . . provided that the notice of appeal was to be filed within thirty days, unless otherwise provided by statute. The rule now states that the notice of appeal is to be filed within thirty days unless otherwise provided by statute or court rule” [emphasis in original]).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.