That motion was also remanded to the trial court,
\nToomey, J., who denied the motion on May 13, 1999. The defendant
\nfiled a notice of appeal from the denial of the motion to
\nreconsider, and a supplementary brief with the Supreme Judicial
\nCourt. <\/font><\/p>\nOral arguments were presented upon the entire
\ncase and, on May 27, 2000, the Supreme Judicial Court affirmed
\nthe judgement of conviction and the orders denying the two
\nmotions for new trial. See Commonwealth<\/u> v. Thompson<\/u>,
\n431 Mass. 108 (2000). <\/font><\/p>\nThe defendant, on March 26, 2001, filed a third
\nmotion for a new trial pursuant to Mass.R.Crim.P 30. In his
\nlatest effort, defendant contends that his state and federal
\nconstitutional rights to due process were violated because of
\nineffective assistance of trial counsel. <\/b>The defendant did
\nnot raise the ineffectiveness issue in his direct appeal or in
\neither of his two previous Rule 30 motions, in each of which he
\nhad counsel other than the lawyer who represented him at trial.
\nThe defendant also asserts now that his appellate counsel’s
\nfailure to raise the ineffective assistance of trial counsel on
\nappeal was a discrete violation of his state and federal
\nconstitutional rights to due process.<\/font><\/p>\nDISCUSSION<\/u><\/b><\/font><\/p>\nUnder art. 12 of the Declaration of Rights of
\nthe Massachusetts Constitution and the Sixth Amendment to the
\nUnited States Constitution, a defendant possesses the right to be
\nrepresented by effective counsel. See Commonwealth<\/u> v. Fuller<\/u>,
\n394 Mass. 251, 255-256 (1985). But claims of ineffective
\nassistance of counsel are subject to waiver. Commonwealth<\/u>
\nv. Egardo<\/u>, 426 Mass. 48, 50 (1997). Where a defendant was
\nrepresented on direct appeal by different counsel than at trial,
\nany claim for ineffective assistance of trial counsel must be
\nraised in his direct appeal. Commonwealth<\/u> v. LeFave<\/u>,
\n430 Mass. 169, 171-174 (1999); Commonwealth<\/u> v. Lanoue<\/u>,
\n409 Mass. 1, 3 (1990). No such claim was raised at bar by
\n"new" counsel in the direct appeal or the first two
\nRule 30 motions. <\/font><\/p>\nThere is a presumption of regularity in
\nconvictions. See Commonwealth<\/u> v. Lopez<\/u>, 426 Mass.
\n657, 662 (1998). The waiver provisions of Rule 30 "were
\ndesigned to achieve ‘finality of convictions,’ and to
\neliminate ‘piecemeal litigation…whose only purpose is to
\nvex, harass, or delay.’ …The very purpose of the rule is
\nto curtail successive and vexatious post-conviction proceedings
\ninitiated by dissatisfied defendants who have already obtained
\nreview of their convictions on direct appeal." Commonwealth<\/u>
\nv. Deeran<\/u>, 397 Mass. 136, 142 (1986) (citations omitted).
\nThe Commonwealth has a valid interest in seeking a just end to
\nthe criminal process, id<\/u>; and "once the regular
\nprocedures have run their course, the presumption tilts heavily
\ntowards finality." Commonwealth<\/u> v. Amirault<\/u>,
\n424 Mass. 618, 637 (1997). Where, as in the case at bar, a
\ndefendant has unsuccessfully pursued a direct appeal in which he
\ndid not raise a claim of ineffective assistance of trial counsel,
\nthat issue is ordinarily waived. Id<\/u>.<\/font><\/p>\nOnce a ground for relief is waived by omission,
\nRule 30 (c)(2) provides that a motion judge may only grant relief
\nfrom such a waiver if the issue presents a substantial risk of a
\nmiscarriage of justice. See Curtis<\/u>, supra<\/u> at 626; Commonwealth<\/u>
\nv. Watson<\/u>, 409 Mass. 110, 112 (1991); Commonwealth<\/u>
\nv. Harrington<\/u>, 379 Mass. 446, 449 (1980). That limitation
\napplies equally to constitutional(both structural and
\nnon-structural) and non-constitutional issues. Commonwealth<\/u>
\nv. Burnett<\/u>, 428 Mass. 469, 475 (1998) (waiver rule applies
\nto constitutional structural errors); Amirault<\/u> 428 Mass.
\nat 641 (waiver rule applies to constitutional claims). Discretion
\nto "revive" an issue should not be exercised lightly in
\nthis type of a case, but only when, "upon sober reflection,
\nit appears that a miscarriage of justice might otherwise
\nresult." Gagliardi<\/u>, 418 Mass. at 565. Under such a
\nstandard, defendant "has the burden of demonstrating why
\n‘this is a truly extraordinary case where the consideration
\nof the merits of [his motion for a new trial] is
\nrequired.’" Commonwealth<\/u> v. Gagliardi<\/u>,
\n418 Mass. 562, 565 (1994), quoting Commonwealth<\/u> v. Watson<\/u>,
\n409 Mass. 110, 114 (1991). <\/font><\/p>\nHaving examined the instant defendant’s
\nthird motion, supporting papers, affidavits and the memoranda of
\ncounsel, the Court concludes that defendant has not demonstrated
\nthat a miscarriage of justice is likely to have occurred and,
\naccordingly, has not presented this Court with reason to absolve
\nhim from the consequences of his multiple earlier failures to
\nhave offered the present claim for relief. See Commonwealth<\/u>
\nv. Watkins<\/u>, 433 Mass. 539 (2001).<\/font><\/p>\nNor does <\/b>the court consider a hearing
\nupon this third Rule 30 motion to be required. The decision of
\nwhether to hold a hearing on a motion for a new trial rests
\nsolely with the motion judge. Commonwealth<\/u> v. Stewart<\/u>,
\n383 Mass. 253, 257 (1981). The judge may decide the motion on the
\naffidavits and the papers if he or she determines that an
\nevidentiary hearing is not useful, or where, as here, the issues
\nare purely ones of law, rather than fact, and the issues do not,
\nbecause of waiver, possess merit. Gagliardi<\/u>, 418 Mass. at
\n572. A judge "may rule on the issue or issues presented by
\nsuch a motion on the basis of the facts alleged in the affidavits
\nwithout further hearing if no substantial issue is raised by the
\nmotions or affidavits." Mass. R. Crim. P. 30 (c) (3), 378
\nMass. 900 (1979).<\/font><\/p>\nThe Court has carefully examined the
\ndefendant’s motion for new trial, affidavits and supporting
\nmemoranda. As the issue defendant raises – the effectiveness
\nof counsel – is purely one of law and should have been
\nraised on direct appeal, or in earlier Rule 30 combat, and as
\ndefendant’s contentions in the particular circumstances of
\nthis case do not present a substantial risk of a miscarriage of
\njustice, a hearing is not warranted. In these circumstances, the
\nCourt expressly declines to resurrect the waived issues. See
\ngenerally, Commonwealth<\/u> v. Hallet<\/u>, 427 Mass. 522,
\n553-555 (1998); see also Commonwealth<\/u> v. Vinnie<\/u>,
\n428 Mass. 161, 163 & nn. 1-3, cert<\/u>. denied<\/u>, 119
\nS.Ct. 523 (1998).<\/font><\/p>\nThis Court respects the proposition that,
\n"[t]here must be a reasonable moment for a judgment to
\nbecome final and a time beyond which further challenges must be
\nbarred." Reddick<\/u> v. Commonwealth<\/u>, 381 Mass.
\n389, 403 (1980). On the other hand, justice ought not to be
\nsacrificed to expediency. This Court resists the elevation of
\nfinality over fairness, but the offerings at bar do not suggest
\nthat denial of this motion, on grounds of waiver, is either a
\ngenuflection to denouement or a tolerance of injustice. In the
\ncircumstances before us, finality prevails. <\/font><\/p>\n\n
ORDER<\/u><\/b><\/font><\/p>\nFor the foregoing reasons, defendant’s
\nmotion for a new trial is DENIED<\/u><\/b>.<\/font><\/p>\n<\/p>\nDaniel F. Toomey<\/font><\/p>\nJustice of the Superior Court<\/font><\/p>\nDated: July , 2001<\/font><\/p>\n<\/p>\nFOOTNOTE:<\/b><\/font><\/p>\n[1]<\/b><\/font><\/a> <\/font>The motion to reconsider was, in
\nreality, a second motion for a new trial because it advanced a
\ncontention not addressed in the first motion for new trial.<\/font><\/p>\n","protected":false},"excerpt":{"rendered":"Massachusetts Superior Court COMMONWEALTH v. THOMPSON COMMONWEALTH OF MASSACHUSETTS WORCESTER, ss. SUPERIOR COURT CRIMINAL ACTION No. 95-1726, 1727 COMMONWEALTH v. CHARLES THOMPSON MEMORANDUM OF DECISION AND ORDER ON DEFENDANT’S MOTION FOR A NEW TRIAL BACKGROUND On May 23, 1996, the defendant, Charles Thompson, was convicted by a jury sitting in Hampden County of the murder …<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[86,89],"tags":[],"class_list":["post-9847","post","type-post","status-publish","format-standard","hentry","category-fulltext-opinion","category-massachusetts-superior-court"],"_links":{"self":[{"href":"https:\/\/malwdev.wpengine.com\/fulltext-opinions\/wp-json\/wp\/v2\/posts\/9847"}],"collection":[{"href":"https:\/\/malwdev.wpengine.com\/fulltext-opinions\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/malwdev.wpengine.com\/fulltext-opinions\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/malwdev.wpengine.com\/fulltext-opinions\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/malwdev.wpengine.com\/fulltext-opinions\/wp-json\/wp\/v2\/comments?post=9847"}],"version-history":[{"count":0,"href":"https:\/\/malwdev.wpengine.com\/fulltext-opinions\/wp-json\/wp\/v2\/posts\/9847\/revisions"}],"wp:attachment":[{"href":"https:\/\/malwdev.wpengine.com\/fulltext-opinions\/wp-json\/wp\/v2\/media?parent=9847"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/malwdev.wpengine.com\/fulltext-opinions\/wp-json\/wp\/v2\/categories?post=9847"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/malwdev.wpengine.com\/fulltext-opinions\/wp-json\/wp\/v2\/tags?post=9847"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
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