Parker v. Com.

• Decision Date: 23 March 2007
• Parties: Wayne D. PARKER, Sr. v. COMMONWEALTH (and a consolidated case<SMALL><SUP>1</SUP></SMALL>).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

863 N.E.2d 40

448 Mass. 1021

Wayne D. PARKER, Sr. v. COMMONWEALTH (and a consolidated case¹).

Supreme Judicial Court of Massachusetts.

March 23, 2007.

Wayne D. Parker, Sr., pro se.

Carolyn A. Burbine, Assistant District Attorney, for the Commonwealth.

RESCRIPT.

Wayne D. Parker, Sr., was convicted of murder in the first degree and unarmed robbery, and we affirmed the convictions after plenary review. Commonwealth v. Parker, 412 Mass. 353, 589 N.E.2d 306 (1992). Parker then filed a motion for a new trial, which the trial judge denied. The judge also denied Parker's motion for reconsideration. In January, 1999, Parker filed a "notice of appeal" in the county court, apparently pursuant to the gatekeeper provision of G.L. c. 278, § 33E. A single justice of this court referred the matter to the Committee for Public Counsel Services (CPCS). Parker was informed at that time that the matter was being "referred to CPCS for evaluation." In March, 2002, CPCS notified Parker that after review of his case, it found no "issues of sufficient merit to warrant assignment of counsel." Parker filed a number of ancillary motions, all directed toward obtaining appointed counsel. A second single justice denied those motions, and Parker appealed to the full court from that ruling. After that appeal was entered in this court, and after the Commonwealth filed what it styled as an opposition to Parker's gatekeeper petition, a third single justice issued an order denying leave to appeal from the denial of the motion for a new trial. Parker also appealed from that ruling. Parker's two appeals were consolidated. The Commonwealth moved to dismiss so much of the appeal as sought review of the third single justice's ruling on the ground that the denial of a petition under the gatekeeper provision of G.L. c. 278, § 33E, is final and unreviewable. E.g., Napolitano v. Attorney Gen., 432 Mass. 240, 241, 733 N.E.2d 80 (2000). In an unpublished order, we reserved ruling on that motion until the appeal from the second single justice's ruling was briefed and argued. See Fuller v. Commonwealth, 419 Mass. 1002, 643 N.E.2d 36 (1994) (permitting petitioner to appeal from denial of ancillary motions intended to enhance likelihood that gatekeeper petition would be allowed). We now affirm the second single justice's ruling and allow the Commonwealth's motion to dismiss.

Ancillary motions. After CPCS decided that it would not assign counsel for Parker's case, Parker filed a motion to void that decision, a motion for appointment of independent counsel, and a complaint for contempt (collectively, ancillary motions). The complaint for contempt alleged that CPCS "was ordered to assign court appointed counsel" and did not obey that order. The second single justice denied all the ancillary motions.

Parker argues that the single justice erred in denying the complaint for contempt without a hearing. "To hold a party in contempt, `there must be a clear and unequivocal command and an equally clear and undoubted disobedience.' Nickerson v. Dowd, 342 Mass. 462, 464, 174 N.E.2d 346 (1961). Oral orders may, of course, support a contempt finding. Cf. Dominick v. Dominick, 18 Mass.App.Ct. 85, 88-89, 463 N.E.2d 564 (1984) (oral agreement read into record binding on parties). But whether in written or oral form, we determine whether a party is in contempt by looking to the precise words of the order itself. Where the order is oral, we look to the words of the transcript." Newell v. Department of Mental Retardation, 446 Mass. 286, 305, 843 N.E.2d 1084, cert. denied, ___ U.S. ___, 127 S.Ct. 158, 166 L.Ed.2d 40 (2006). There is nothing in the record, written or oral, to support Parker's claim that the first single justice ordered CPCS to assign counsel. The "notice of assignment of counsel" form signed by the first single justice contains no language directing CPCS to assign counsel. Nor is there any suggestion in the record of such an order given orally. The record clearly reflects that the first single justice merely referred the matter to CPCS "for evaluation" only, that is, so that CPCS could determine whether Parker's case warranted an assignment of counsel. Because there was no "clear and unequivocal command" that CPCS actually assign counsel, CPCS could not be held in contempt for not doing so.²

Further, an indigent defendant has no constitutional entitlement to the assistance of appointed counsel in preparing or presenting a postconviction motion for a new trial. Commonwealth v. Conceicao, 388 Mass. 255, 261, 446 N.E.2d 383 (1983). The decision to appoint counsel in these circumstances is discretionary with the judge. Id. at 262, 446 N.E.2d 383. The second single justice, in the exercise of her discretion, declined to do so because she was satisfied that CPCS had evaluated Parker's case in good faith. Parker has not shown that the second single justice abused her discretion in doing so. Nothing in the record compelled the second single justice either to void CPCS's decision not to assign counsel or to appoint independent counsel herself. Moreover, Parker "has not demonstrated that any of the . . . `ancillary' motions which were denied by the single justice has realistic potential for demonstrating the existence of a new and substantial question appropriate for appeal." Fuller v....