Constantine v. Commonwealth

760 N.E.2d 733, 435 Mass. 1011, 2002 Mass. LEXIS 9

Opinion

This court’s power of review under G. L. c. 211, § 3, is “ ‘extraordinary’ and will be exercised only in ‘the most exceptional circumstances.’ ” Mc-Guinness v. Commonwealth, 420 Mass. 495, 497 (1995), quoting Planned Parenthood League of Mass., Inc. v. Operation Rescue, 406 Mass. 701, 706 (1990). Relief under G. L. c. 211, § 3, may not be sought “merely as a substitute for normal appellate review.” McGuinness v. Commonwealth, supra, quoting Francis v. District Attorney for the Plymouth Dist., 388 Mass. 1009, 1010 (1983). Among other things, “[pjarties seeking review must demonstrate that they have no other legal remedy to pursue and, therefore, a petition under c. 211, § 3, is the only alternative.” McGuinness v. Commonwealth, supra.

Here, Constantine has failed to carry this burden. Aside from a single sentence in his brief, asserting that this court “has jurisdiction” over this matter, he has not made any argument that a G. L. c. 211, § 3, petition is his only available means of remedying the alleged defects. Indeed, the record indicates that Constantine has or had several opportunities to address these claims. For example, he could have appealed from the issuance of the 209A order to the Appeals Court. See Zullo v. Goguen, 423 Mass. 679, 681 (1996) (“review of orders pursuant to G. L. c. 209A should not be initiated by petition under G. L. c. 211, § 3, but rather by the filing of an appeal in the Appeals Court”). He could have moved for a new trial in the second prosecution. Mass. R. Crim. R 30 (b), 378 Mass. 900 (1979). See K.B. Smith, Criminal Practice and Procedure § 1251 (2d ed. 1983) (“A motion for a new trial is the appropriate device for attacking the validity of a guilty plea”). Similarly, he could have appealed to the Appeals Court from the revocation of his probation. Commonwealth v. Christian, 429 Mass. 1022, 1023 (1999) (“proper avenue of relief for a defendant raising a challenge to the issuance of a probation revocation order” is by direct appeal to the Appeals Court).

Constantine apparently did not pursue any of these adequate, effective alternatives. Thus, the single justice’s decision to deny his petition for extraordinary relief was correct. McGuinness v. Commonwealth, supra at 498 (denial of petition warranted where petitioner “failed to demonstrate that the alleged errors cannot be remedied under the ordinary review process”).

Tom T. Constantine, pro se.

Judgment affirmed.

The case was submitted on briefs.