Com. v. Hartsgrove

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: Before LIACOS; LIACOS
• Citation: 407 Mass. 441,553 N.E.2d 1299
• Decision Date: 17 May 1990
• Parties: COMMONWEALTH v. Clifton HARTSGROVE.

Page 1299

553 N.E.2d 1299 407 Mass. 441 COMMONWEALTH
v.
Clifton HARTSGROVE. Supreme Judicial Court of Massachusetts,
Norfolk. Argued Jan. 8, 1990.
Decided May 17, 1990.

Page 1300

Chrystal Murray, Committee for Public Counsel Services (Carol A. Donovan, Committee for Public Counsel Services, Randolph, with her) for defendant.

Stephanie Martin Glennon, Asst. Dist. Atty., for Com.

Before LIACOS, C.J., and ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

LIACOS, Chief Justice.

We consider whether a pro se defendant, incarcerated in a correctional facility, shall be deemed to have filed a notice of appeal with the trial court at the moment he deposited it in the prison's institutional mailbox. The defendant claims to have placed the notice, which was in a stamped envelope addressed to the Superior Court clerk for Norfolk County, into the hands of the prison authorities within the thirty-day period as specified in Mass.R.A.P. 4(b), as [407 Mass. 442] amended, 378 Mass. 928 (1979). The Superior Court clerk did not receive the notice until after the deadline had passed. The Appeals Court eventually dismissed the appeal as not timely filed. The case is here for further appellate review. Mass.R.A.P. 27.1, as amended, 367 Mass. 922 (1975).

We summarize the documented facts, as well as those facts alleged by the defendant. The defendant, on October 28, 1987, was found guilty by a jury in the Superior Court of rape and indecent assault and battery. On the same day he was sentenced to a term of imprisonment at Massachusetts Correctional Institution (M.C.I.), Cedar Junction, of from five to seven years on the rape conviction. ¹ The defendant was notified of his right to appeal his conviction within thirty days, pursuant to Mass. R.A.P. 4(b). ²

On October 28, 1987, the defendant was transported from the courthouse to M.C.I., Cedar Junction. One day later, he was transported to M.C.I., Concord. Approximately one week after sentencing, the defendant was informed by his trial counsel that, if he wanted to appeal, he had to file his own notice of appeal. The defendant, after seeking assistance from an inmate, prepared a document entitled "Notice of Appeals and Request For Transcripts for Appeal."

On November 21, 1987, twenty-four days after his sentencing in the Superior Court,

Page 1301

and thus within the thirty-day period prescribed by Mass.R.A.P. 4(b), the defendant claims he placed the notice of appeal, dated November 20, 1987, in a stamped envelope addressed to the "Clerk of Courts Superior Courthouse Dedham, Ma. 02026." In accordance with prison procedure, the defendant placed the envelope in the institutional mailbox outside the institutional dining hall.

[407 Mass. 443] The clerk of the Norfolk Superior Court did not receive the defendant's notice of appeal until December 3, 1987, after the thirty-day appeal period had expired. The envelope received by the office of the clerk of the Norfolk Superior Court was postmarked in Boston on December 1, 1987, for reasons not made apparent in the record. ³

On December 10, 1987, a Norfolk County Superior Court assistant clerk wrote the defendant a letter informing him that his notice of appeal had been untimely received and that it was being returned to him. On December 15, 1987, the defendant wrote the assistant clerk a letter explaining that he had placed his notice of appeal in the institutional mailbox at M.C.I., Concord, on November 21, 1987, and had made every effort to file the notice in a timely fashion. The defendant wrote: "I ask that you realize that my access to the mail is through one source only, the institutional mailbox at M.C.I. Concord. When the mail is picked up and the length of time it spends waiting to be processed, is not within my control. Kindly accept the enclosed Notice of Appeal and save the courts and everyone else involved the expense, delay and inconvenience of requiring me to have a Judge order the Appeal to be filed."

The assistant district attorney apparently was "unwilling to assent" to any late filing of a notice of appeal. On February 2, 1988, a Norfolk County assistant clerk wrote to the defendant advising him to file a "Motion for late filing appeal along with an affidavit explaining the circumstances of your late appeal." On February 10, 1988, the defendant filed a motion entitled "Belated Notice of Appeal," together with a copy of his original notice of appeal. On February 17, 1988, the trial judge allowed the defendant's motion "as to late filing," apparently without holding a hearing.

On June 2, 1988, an attorney from the appeals division of the Committee for Public Counsel Services entered an appearance[407 Mass. 444] for...