Com. v. Alvarez, 05-P-1374.

• Decision Date: 27 June 2007
• Docket Number: No. 05-P-1374.,05-P-1374.
• Citation: 69 Mass. App. Ct. 438,868 N.E.2d 929
• Parties: COMMONWEALTH v. Pedro ALVAREZ.
• Court: Appeals Court of Massachusetts

868 N.E.2d 929

69 Mass. App. Ct. 438

COMMONWEALTH v. Pedro ALVAREZ.

No. 05-P-1374.

Appeals Court of Massachusetts, Suffolk.

Argued October 19, 2006.

Decided June 27, 2007.

Pedro Alvarez, pro se.

Annette C. Benedetto, Assistant Attorney General, for the Commonwealth.

Present: McHUGH, COHEN, & KATZMANN, JJ.

COHEN, J.

The defendant, who appears pro se, appeals from an order of a single justice of this court denying the defendant's motion to reinstate his direct appeal, which had been dismissed on the defendant's motion under Mass.R.A.P. 29(b), as amended, 378 Mass. 943 (1979). We vacate the order and remand this matter to the single justice for the appointment of screening counsel to determine whether and in what forum further efforts should be made to restore the defendant's appellate rights.

1. Background. On December 11, 2002, after a jury trial, the defendant was convicted of trafficking in cocaine in violation of G.L. c. 94C, § 32E(b)(4). He filed a timely notice of appeal and, thereafter, was assigned court-appointed appellate counsel. The appeal was docketed in this court on March 18, 2003. On April 22, 2003, counsel filed a motion for an enlargement of time in which to file the defendant's brief, which was allowed to July 1, 2003, with the notation "no further enlargements." Counsel failed to file the brief as scheduled. Instead, he filed an additional motion for enlargement of time on July 2, 2003, the day after the brief was due. That motion was denied.

According to the affidavit filed by the defendant in support of his motion to reinstate, counsel did not disclose to the defendant that he had failed to file a brief within the time allowed. Rather, as shown by a handwritten letter sent to the defendant at the Old Colony Correctional Center on July 8, 2003, counsel advised the defendant that the appeal should be discontinued. Counsel wrote: "This is to confirm our conversation regarding your direct appeal. I am recommending that you voluntarily dismiss the direct appeal, as I have examined the transcripts of trial and can find no substantial error or issue to raise. I also will file a motion for a new trial for you to raise the ineffective assistance of counsel issues relative to a failure to file a motion to suppress and other shortcomings at trial."

On July 10, 2003, counsel filed a motion to dismiss the appeal, accompanied by his own affidavit and that of the defendant. Counsel's affidavit stated that he had "made a thorough review of the transcript of the defendant's trial and the law applicable thereto," "fully discussed this case and the grounds for appeal with the defendant," and "informed the defendant of the consequences of dismissing his appeal." It stated further that the defendant, "after consultation and review with [counsel], has elected to dismiss his appeal." The defendant's affidavit stated that he "wish[ed] to dismiss this appeal," and that "withdrawal [was] made voluntarily and without threats or other inducements with respect to this decision." The motion was allowed, and the appeal was dismissed "with prejudice." Counsel never filed a motion for new trial as promised in his letter to the defendant.

On August 24, 2005, the defendant, acting pro se, moved to reinstate the appeal. In a supporting affidavit, the defendant averred that he "unwittingly waived [his] right to [a]ppeal ... due to the mis[ ]information of [a]ppellate counsel"; that counsel never disclosed that he had failed to file the brief within the time allotted; that the defendant made numerous unsuccessful attempts to contact counsel before finally receiving the contents of the record; and that the defendant only recently learned that counsel had never filed a motion for new trial as promised. In support of his motion, the defendant also included a few short excerpts from the trial transcript where his trial counsel had made objections, and alluded to trial counsel's failure to file a pretrial motion to suppress evidence, but he did not argue the merits of any of these potential issues or provide any factual context in which they could be evaluated.

2. Discussion. Unquestionably, it is a highly significant feature of this case that the defendant participated in the dismissal of his appeal. However, before considering the impact of that fact, we begin by setting out the general analytical framework governing a defendant's claim that he entirely lost his right of direct appeal as a result of acts or omissions of counsel after the appeal had entered in an appellate court.

The Commonwealth would have us consider the issue under the two-prong Saferian test generally applicable to allegations of ineffective assistance of counsel, Commonwealth v. Saferian, 366 Mass. 89, 315 N.E.2d 878 (1974), i.e., whether counsel's performance fell "measurably below that which might be expected of an ordinary fallible lawyer," and whether such deficiency "likely deprived the defendant of an otherwise available, substantial ground of defence." Id. at 96, 315 N.E.2d 878. Thus, under the Commonwealth's analysis, the defendant in this case would be precluded from obtaining relief if only because he has not fulfilled the second prong of the Saferian test by showing that he was deprived of the opportunity to present potentially meritorious appellate issues.

There is, however, a recognized distinction between the typical case of ineffective assistance of counsel governed by Saferian and a case where counsel's shortcomings during the appellate process have altogether deprived a defendant of review on direct appeal. As articulated in Commonwealth v. Frank, 425 Mass. 182, 184, 680 N.E.2d 67 (1997), in the latter situation, the defendant is not required to specify or argue the appellate issues that he would raise were his appeal reinstated.

In Frank, without the defendant's consent, counsel failed to file an appellate brief, resulting in the dismissal of the defendant's direct appeal. Emphasizing that a defendant has a clear statutory right to a direct appeal and a constitutional right to counsel in prosecuting that appeal, ibid., the court applied Federal constitutional standards applicable not only in cases where the defendant had no counsel at all on appeal, but also in cases where counsel's failures essentially waived the defendant's opportunity to make his appellate case on the merits.

As Frank explained, the court was presented with the "very variant of the right to counsel [on] appeal" that had been addressed by the United States Supreme Court in Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985), where the Supreme Court fully restored appellate rights lost to a criminal defendant as a result of counsel's failure to meet various procedural requirements. Accordingly, the case was not to be analyzed under the usual standards relating to ineffective assistance of counsel, but as one where the defendant essentially was deprived of appellate representation altogether. Commonwealth v. Frank, supra at 184, 680 N.E.2d 67. As the Frank court stated: "Whatever the standards for effective assistance of counsel on appeal, `[i]n a situation like that here, counsel's failure was particularly egregious in that it essentially waived respondent's opportunity to make a case on the merits; in this sense, it is difficult to distinguish respondent's situation from that of someone who had no counsel at all.'" Ibid., quoting from Evitts v. Lucey, supra at 394 n. 6, 105 S.Ct. 830.

Frank went on to address the question of relief, determining that the case should be remanded for the appointment of a new attorney, who would be permitted to press the defendant's claims by prosecuting the appeal, by filing a motion for a new trial, or both.¹ Commonwealth v. Frank, supra at 185, 680 N.E.2d 67. In other words, as in Evitts, the court fully restored the defendant's appellate rights, and did so without consideration of the strength or weakness of his underlying appellate arguments.

More recently, this court had occasion, in Commonwealth v. Kegler, 65 Mass.App. Ct. 907, 908, 841 N.E.2d 730 (2006), to apply Frank in the context of an appeal from the denial by a single justice of this court of a defendant's motion to reinstate a direct appeal, where the defendant's appellate rights were lost because of counsel's neglect.² We concluded that counsel's complete failure to press the defendant's direct appeal, resulting in its dismissal, "effectively deprive[d] the defendant of his right of direct appeal." Commonwealth v. Kegler, supra at 908, 841 N.E.2d 730. By way of remedy, we examined the merits of the defendant's appellate issues, concluding that "the issues raised would not warrant reversal of the defendant's convictions." Ibid. Significantly, in Kegler, the defendant was represented and the underlying appellate claims were fully briefed. Thus, we were in a position to review the defendant's appellate issues in a single proceeding, along with the defendant's appeal from the single justice's order denying reinstatement, as if the underlying issues were before us on direct appeal.

We clarify, however, that in other circumstances, the appropriate disposition would be to permit the defendant to pursue postconviction proceedings as ordered in Frank, supra at 185, 680 N.E.2d 67.³ We further clarify that nothing in Kegler should be taken as detracting from the holding in Frank, that due process requires that a defendant who actually or constructively has been denied his right to counsel on appeal must be placed in the same position that he would have occupied were he presenting his direct appellate claims in the ordinary course. Commonwealth v. Frank, supra at 185, 680 N.E.2d 67. He is not to be subjected to a stricter standard of review; nor is he required to establish any colorable appellate issue as a prerequisite to recovering his lost appellate rights.⁴ Ibid.

We turn now to the present case, considering whether it falls within the parameters...