Commonwealth v. Anderson

The defendant, Bruce Anderson, was convicted of murder in the first degree by reason of deliberate premeditation and extreme atrocity or cruelty. Commonwealth v. Anderson , 408 Mass. 803 , 803-804, 563 N.E.2d 1353 (1990). In 2018, he filed a motion for a new trial, which was denied. 1 He then applied to a single justice of this court for leave to appeal from the denial, pursuant to the gatekeeper provision of G. L. c. 278, § 33E. The single justice denied the application. Anderson has appealed from the single justice's ruling, and the Commonwealth has moved to dismiss the appeal.

A single justice, acting as a gatekeeper pursuant to G. L. c. 278, § 33E, may allow an appeal to the full court to proceed under that statute if the appeal presents a "new and substantial" question. See Commonwealth v. Gunter , 459 Mass. 480 , 487, 945 N.E.2d 386 , cert. denied, 565 U.S. 868 , 132 S.Ct. 218 , 181 L.Ed.2d 119 (2011). If the appeal fails on either count, and the single justice denies the application, that decision "is final and unreviewable." Commonwealth v. Gunter , 456 Mass. 1017 , 1017, 924 N.E.2d 687 (2010). "A defendant who is denied leave to appeal from a single justice acting as a gatekeeper pursuant to the last sentence of G. L. c. 278, § 33E, has no right to appeal from the single justice's ruling denying leave." Commonwealth v. Companonio , 472 Mass. 1004 , 1004, 33 N.E.3d 411 (2015), quoting Gunter , 456 Mass. at 1017 , 924 N.E.2d 687 . The defendant's attempt to appeal from the single justice's denial of his application must therefore be dismissed.

Appeal dismissed .