Com. v. Mullen

• Decision Date: 25 June 2008
• Docket Number: No. 07-P-463.,07-P-463.
• Citation: 72 Mass. App. Ct. 136,889 N.E.2d 52
• Parties: COMMONWEALTH v. Timothy E. MULLEN.
• Court: Appeals Court of Massachusetts

889 N.E.2d 52

72 Mass. App. Ct. 136

COMMONWEALTH v. Timothy E. MULLEN.

No. 07-P-463.

Appeals Court of Massachusetts, Suffolk.

Argued January 23, 2008.

Decided June 25, 2008.

Lois J. Martin, Brighton, for the defendant.

Rosemary Daly, Assistant District Attorney, for the Commonwealth.

Present: RAPOZA, C.J., ARMSTRONG, LENK, DUFFLY, & RUBIN, JJ.

RUBIN, J.

After a trial at which he represented himself, the defendant was convicted of assault and battery on a public employee, G.L. c. 265, § 13D, and resisting arrest, G.L. c. 268, § 32B. He appeals from an order denying his motion for a new trial.

Drawing all reasonable inferences in favor of the Commonwealth, the jury could have found the following facts. On the afternoon of April 3, 2005, Boston police Officer Michael Leary was directing traffic near what was then known as the Fleet Center following a Boston Celtics basketball game. Officer Leary signaled for a crowd of pedestrians to stop so that automobile traffic could exit a garage, waving the automobile traffic on with one hand while holding the other out to direct the pedestrian crowd to stop. The defendant walked into Officer Leary's arm, then pushed the officer in the chest with both hands, forcing him back four or five feet. Officer Leary told the defendant that he was under arrest and attempted to gain hold of him. The two struggled and Officer Leary fell backward, hitting his head on the pavement. Several pedestrians came to the officer's assistance. Pedestrians also alerted Sergeant Kenneth O'Brien, who was twenty-five or thirty feet away. When Sergeant O'Brien reached the scene, the defendant was on top of or adjacent to Officer Leary, who was bleeding from his head. Sergeant O'Brien pulled the defendant off Officer Leary. After the officers gained control of the defendant, he was handcuffed and placed inside a police cruiser, where he attempted to kick out the windows while screaming threats. A police wagon was called and the defendant was transferred to it. In addition to treatment at a hospital for the cut on his head, Officer Leary required approximately six weeks of physical therapy due to shoulder injuries he received in the altercation. The defendant did not deny that an altercation took place; he argued however that Officer Leary had initiated the encounter by assaulting him, and that he acted out of necessity.

I.

At the outset, we are faced with a jurisdictional question. Although the parties both take the position that this appeal was timely filed, confusion on the docket sheet prompts us to verify independently that we have jurisdiction to decide the case. See Mark v. Kahn, 333 Mass. 517, 519, 131 N.E.2d 758 (1956).

The trial judge signed her order denying the defendant's motion for a new trial on August 18, 2006. The defendant's notice of appeal was filed on March 13, 2007. The notice of appeal recited that the order "was not evidently docketed correctly and did not issue to the parties until March 8, 2007." In his brief, the defendant states that the order "was filed incorrectly and not distributed to the parties until March 8, 2007." The Commonwealth states in its brief that "the parties were not notified of the judge's order until March 8, 2007."

The thirty-day period for filing a notice of appeal runs not from the time an order denying a new trial is signed, or from the time the parties receive notice of it. Rather, it runs "from the date of entry" of the order. Mass.R.A.P. 4(b), as amended, 378 Mass. 928 (1979). This means that date on which notation of the judgment or order was actually entered on the docket, whether by hand or by input of data into a computer. The computer-generated docket sheet of the Boston Municipal Court (BMC) in this case does not clearly show the date of entry of the order denying the defendant's motion for a new trial. Indeed, it does not provide the date of "entry" of anything included upon it. Cf. Mass.R.Civ.P. 79(a), 365 Mass. 839 (1974) ("The entry of an order or judgment shall show the date the entry is made"). Rather, it lists only a date when each item was "filed." It states that the order denying a new trial was "filed" on August 18, 2006, the date it was signed.

The word "filed" typically refers to the date on which parties submit materials to the court. See, e.g., Mass.R.A.P. 13(a), as amended, 406 Mass. 1601 (1990) (stating, inter alia, that "filing" is timely when "papers are received by the clerk within the time fixed for filing"). It is not necessarily the same as the date on which those filings are entered on the docket. See, e.g., Samuels v. SUFA Corp., 38 Mass.App.Ct. 922, 922, 645 N.E.2d 707 (1995) (distinguishing filing of document from entering it on docket). To the extent the computer-generated BMC docket sheet includes notations about such filings by parties, it thus appears that the date indicated is the filing date, rather than the date of entry.

The notation on the computer-generated docket sheet of a "filing" date for the order denying a new trial below, however, is more confusing. The date of filing of court orders and judgments has no legal significance under the rules. The only relevant date under the rules is the date of entry, but the date denominated "filed" is the only date apparent on that docket sheet.

In the absence of any contrary indication, the "filed" date might be thought to indicate that that was the date the order was not only signed, but entered on the docket. If the order had been entered on the docket on August 18, 2006, the notice of appeal in this case would have been filed well beyond the thirty-day period specified in the rules.

There is also, however, for reasons that are not apparent to us, a separate handwritten BMC docket sheet in this case. Some entries appear on both the computer-generated docket sheet and the handwritten docket sheet. Others appear only on one or the other docket sheet. The handwritten docket contains a two-line entry dated March 9, 2007, that reads, "Decision on [Defendant's] Motion for New Trial/Denied on August 18, 2006."

There is no indication on the handwritten docket that the March 9, 2007, date is anything but the date this notation was entered upon the docket. The presence of this entry suggests that the order was entered on the docket on March 9, 2007, and that the computer-generated docket sheet does not recite the date of entry. Indeed, we can see no reason why the March 9, 2007, entry would have been made had the order already been entered on the docket on August 18, 2006.

Further, the computer-generated docket also has an entry with a "filed" date of March 15, 2007, which states "BMC [a]ppeal [l]etter/[s]ent on: 03/15/2007." Under Mass.R.Crim.P. 32(c), 378 Mass. 903 (1979), the clerk was required upon entry of the order denying the motion for a new trial to "immediately mail" to the parties "a notice of th[e] entry" of that order and to "record the mailing in the docket." This additional docket entry apparently refers to this rule 32(c) letter. The indication that the letter was mailed on March 15, 2007, provides further support for the conclusion that the order from which the defendant appeals had on that date only recently been entered on the docket. Cf. Standard Register Co. v. Bolton-Emerson, Inc., 35 Mass.App.Ct. 570, 571-72, 623 N.E.2d 502 (1993) (discussing entry of judgment and parallel Massachusetts Rules of Civil Procedure).

We conclude, therefore, that notwithstanding the ambiguous computer-generated docket, the order denying a new trial was entered on the docket on March 9, 2007, not August 18, 2006. We are thus satisfied that the notice of appeal was timely filed and therefore that we have jurisdiction over this appeal.

II.

On the merits of the appeal, the defendant argues that his waiver of counsel did not conform to the standards for waiver of counsel we articulated in Commonwealth v. Mott, 2 Mass.App.Ct. 47, 308 N.E.2d 557 (1974). This is familiar ground. First, the request to proceed pro se must be made unequivocally. Second, it must be asserted prior to trial. Finally, it must be exercised knowingly and intelligently. Id. at 51, 308 N.E.2d 557.

The first two requirements were met here. The defendant's appointed counsel failed to appear at the scheduled time for the defendant's pretrial conference, apparently due to an illness in the family. After meeting counsel before the rescheduled proceedings, the defendant asserted before one judge (not the judge who had previously appointed counsel) that he wanted to represent himself, and he signed a waiver of counsel form. At the next pretrial hearing, held before a second motion judge, he asked for the appointment of standby counsel, but again asserted, "I want to represent myself." He asked if it would be "possible for you to appoint an attorney to help guide me ... just to make sure I follow the procedures." At no time once he sought to represent himself did the defendant equivocate with respect to his desire to proceed pro se. And, as the recitation above makes clear, his request to proceed pro se was made well in advance of trial.

The record, however, is inadequate to support a conclusion that the defendant's waiver of counsel was knowing and intelligent. In determining whether a waiver is knowing and intelligent, it is our task to evaluate "the defendant's subjective understanding of his decision and its consequences." Commonwealth v. Barnes, 399 Mass. 385, 391, 504 N.E.2d 624 (1987). In Mott, we spoke of the need for a "meaningful inquiry" by the trial judge "after being informed that the defendant preferred to defend himself." 2 Mass.App.Ct. at 52, 308 N.E.2d 557. This is not to say that a knowing and intelligent waiver requires that any specific questions or answers be given. The Supreme Judicial Court has explained:

"We have not prescribed the questions that a judge must pose to an accused who desires to represent himself nor is there any `particular piece of information that...