Com. v. Simon

• Decision Date: 13 March 1984
• Parties: COMMONWEALTH v. Charles W. SIMON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 758

461 N.E.2d 758

391 Mass. 1010

COMMONWEALTH v. Charles W. SIMON.

Supreme Judicial Court of Massachusetts,

Suffolk.

Submitted on Briefs Feb. 10, 1984.

Decided March 13, 1984.

Walter B. Prince, Boston, for defendant.

Newman Flanagan, Dist. Atty., and Brian Gilligan, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C.J., and WILKINS, ABRAMS, NOLAN and LYNCH, JJ.

RESCRIPT.

The defendant, Charles Simon, appeals from his conviction of possession of heroin with intent to distribute. G.L. c. 94C, § 32(a). ¹ After our decision in Commonwealth v. Gagnon, 387 Mass. 567, 441 N.E.2d 753 (1982) (Gagnon I ), cert. denied, 461 U.S. 921, 103 S.Ct. 2077, 77 L.Ed.2d 292 (1983), the defendant moved for resentencing on the lesser included charge of possession of heroin. ² See Commonwealth v. Gagnon, 387 Mass. 768, 443 N.E.2d 407 (1982) (Gagnon II ), cert. denied, 464 U.S. 815, 104 S.Ct. 70, 78 L.Ed.2d 84 (1983). The defendant was resentenced to a term of two years in a house of correction, six months to be served, and probation for two years. We are informed by the Commonwealth that following the defendant's release from the house of correction he failed to report to the probation department, and that in December, 1983, a probation warrant for violation of the conditions of probation was issued by a Superior Court judge. Currently that warrant is outstanding. The Commonwealth filed a motion asking that the appeal be dismissed, and the judgment affirmed, because of the defendant's failure to comply with the conditions of his probation.

A defendant "who is a fugitive from justice cannot insist that his appeal be heard." Commonwealth v. Hurley, 391 Mass. 76, 78, 461 N.E.2d 754 (1984). See Commonwealth v. Green, 353 Mass. 687, 690, 234 N.E.2d 534 (1968); Commonwealth v. Rezendes, 353 Mass. 228, 230 N.E.2d 647 (1967). The motion to dismiss the appeal is allowed.

We add that the defendant's contention on appeal is that he was denied the effective assistance of counsel because trial counsel failed to anticipate our decision in Gagnon I. ³ At the trial, the defendant admitted possessing heroin but claimed it was for his personal use. The defendant has been resentenced for the lesser included offense of possession of heroin. Therefore that issue is moot. See Lockhart v. Attorney Gen., 390 Mass. 780, 782-784, 459 N.E.2d 813 (1984). Moreover, counsel is not ineffective solely by failing to anticipate appellate court decisions. See Commonwealth v. Stokes, 374 Mass. 583, 588, 374 N.E.2d 87 (1978).

The defendant claims error in the refusal of the trial judge to permit his counsel to withdraw on the date set for trial. We do not agree. The transcript and docket entries reveal that the defendant was arraigned on April 28, 1981, and the defendant was represented by counsel (not trial counsel). The docket reveals that three other lawyers appeared for the defendant from that time until May 5, 1982, when trial counsel was appointed. The defendant claims that, on the day set for trial, the judge was required to permit his counsel to withdraw and to grant a continuance so that counsel of his choice could have time to prepare the case. The indictment had been pending for well over a year. The judge could properly decide that the defendant's change of counsel was a device to secure another continuance and avoid trial. "A trial judge has ample authority to protect himself and the Commonwealth from such manipulative behavior." Commonwealth v. Connor, 381 Mass. 500, 506 n. 6, 410 N.E.2d 709 (1980). The right to counsel of one's choice is "not absolute, and may, in some circumstances, be subordinate to the proper administration of...