Miranda v. Com.

• Decision Date: 05 July 1984
• Citation: 392 Mass. 420,466 N.E.2d 122
• Parties: Myles R. MIRANDA v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 122

466 N.E.2d 122

392 Mass. 420

Myles R. MIRANDA v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts Suffolk.

Argued March 8, 1984.

Decided July 5, 1984.

John P. Courtney, Boston, for petitioner.

Richard J. Piazza, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C.J., and WILKINS, LIACOS and ABRAMS, JJ.

LIACOS, Justice.

On May 15, 1976, the petitioner was found guilty by a judge of the Superior Court in Barnstable County of two counts of rape and one count of sodomy. Before trial on May 13, 1976, the petitioner signed a form waiving his right to a trial by jury on these charges. He was sentenced on May 15, 1976, to concurrent terms of fifteen to twenty years and seven to ten years at the Massachusetts Correctional Institution at Walpole, to be served from and after a sentence which he was already serving. No appeal of the conviction was taken.

On July 3, 1980, the petitioner's pro se "petition for leave to make proceedings subject to G.L. c. 278, §§ 33A-G nunc pro tunc March 13, 1976" was filed in the Supreme Judicial Court for Suffolk County. The petitioner prayed in that petition that the court order that his claim of appeal from his convictions be received as if timely filed. Counsel was appointed for the petitioner, and a trial transcript was prepared. The petitioner stated that if he were permitted to file an appeal late, he would argue that he was entitled to a new trial on the ground that his waiver of a trial by jury was invalid because it had not been made voluntarily and intelligently.

A single justice referred the case to a special master. After hearings, the special master filed his final report. The master found that the claim of involuntariness in waiving the petitioner's right to a jury trial was frivolous. He recommended that the petition for leave to enter a late appeal be denied. The single justice ordered that the special master's report be confirmed and that the petition for late appeal be denied. The petitioner appealed the decision of the single justice to the full court.

In the record and briefs before us, neither the petitioner nor the Commonwealth has referred to Mass.R.A.P. 14(b), as amended, 378 Mass. 939 (1979). That rule provides that "neither the appellate court nor a single justice may enlarge the time for filing a notice of appeal beyond one year from the date of entry of the judgment or order sought to be reviewed, or, in a criminal case, from the date of the verdict or finding of guilt or the date of imposition of sentence, whichever date is later." Before rule 14(b) was amended to apply to criminal cases, we referred to its one-year time limit as "the only absolute limitation on our appellate courts or single justices thereof in granting extensions of any time limit prescribed by the rules." Giacobbe v. First Coolidge Corp., 367 Mass. 309, 317, 325 N.E.2d 922 (1975) (dictum). Since more than four years passed between the time the petitioner was found guilty and sentenced and the time he filed his petition in the county court, and since the present version of rule 14(b) was in effect at the time his petition was filed, that denial of the petitioner's petition was correct as matter of law.

Since the single justice did not dismiss the petition but appointed counsel and a special master, we shall assume that he may have acted under his extraordinary powers of superintendence. G.L. c. 211, § 3. Orders entered by a single justice under G.L. c. 211, § 3, shall not be disturbed absent abuse of discretion or clear error of law. Schipani v. Commonwealth, 382 Mass. 685, 409 N.E.2d 1300 (1980). On the record before us we see no abuse of discretion or error of law in the single justice's order confirming the report of the special master and denying the petition for late appeal. ¹ The evidence before the special master supported his findings and his conclusion that an appeal, on the ground that the petitioner's waiver of trial by jury was not knowing or voluntary, would be frivolous. In reaching this conclusion the master relied on Ciummei v. Commonwealth, 378 Mass. 504, 392 N.E.2d 1186 (1979), in which we ruled that the petitioner's waiver of the jury trial right had been valid, but required that in future cases of jury waiver the judge hold a colloquy with the defendant in order to make sure of the waiver's validity. The evidence in this case that the petitioner's waiver was intelligent and voluntary is at least as strong in the present case as it was in Ciummei. ² Neither the judge nor the petitioner's trial lawyer was required to inform the petitioner of the four elements of the right to a jury trial discussed in the petitioner's brief, nor was it necessary for the master to determine that the petitioner was aware of all of these elements for the master to conclude that the appeal would be frivolous. The petitioner's arguments in this regard are without merit. ³ See Commonwealth v. Schofield, 391 Mass. 772, 775-776, 463 N.E.2d 1181 (1984); Ciummei v. Commonwealth, 378 Mass., supra at 513-514, 392 N.E.2d 1186.

Judgment affirmed.

1 In light of the result we reach, we need not consider whether G.L. c. 211, § 3, relief could be available to a criminal defendant when the Rules of Appellate Procedure place an "absolute limitation" on the relief which an appellate court or a single justice may grant. Giacobbe v. First Coolidge Corp., supra. Cf. Leaster v. Commonwealth, 385 Mass. 547, 549, 432 N.E.2d 708 (1982); Soja v. T.P. Sampson Co., 373 Mass. 630, 369 N.E.2d 975 (1977). We note also that the Commonwealth did not raise this issue before the single justice.

In his memorandum in support of his petition for...