COMMONWEALTH v. FELTON (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant appeals from the order denying his fifth motion for new trial, in which he argued that the unpublished decision pursuant to our rule 1:28 in Commonwealth v. Felton, 87 Mass. App. Ct. 1134 (2015) (Felton II),² applying the procedural waiver doctrine in the context of a court room closure claim, violated due process and that his appellate counsel was ineffective for failing to raise this argument at the time. We affirm.

In Felton II, a panel of this court reversed the order allowing the defendant's second motion for new trial, in which the defendant asserted that members of his family had been excluded from the court room during jury empanelment, in violation of his right to public trial. The motion judge (who had also been the trial judge) had allowed the motion because he concluded, based on existing law including Commonwealth v. Alebord, 80 Mass. App. Ct. 432 (2011), that despite the doctrine of waiver, he was required to grant relief because the error was structural. On the Commonwealth's appeal, the panel concluded otherwise, pointing to Commonwealth v. Wall, 469 Mass. 652, 672-673 (2014), and Commonwealth v. LaChance, 469 Mass. 854, 857 (2014), both of which were decided after the denial of the defendant's second motion for new trial. See Felton II. The Supreme Judicial Court denied the defendant's application for further appellate review of Felton II, see 473 Mass. 1108 (2015), and the United States Supreme Court denied the defendant's petition for certiorari review, 137 S. Ct. 212 (2016).

In this appeal, the defendant argues that “retroactive” application of Wall, 469 Mass. at 672-673, and LaChance, 469 Mass. at 857, violated his due process rights, and that his appellate counsel was ineffective for failing to make that argument. But the defendant's appeal in Felton II was pending when LaChance -– the case specifically addressing the question involved here about a “substantial risk of a miscarriage of justice” -– was decided, and the rule of LaChance must apply to the defendant's case, just as it did in LaChance. In that case, at a time prior to October 21, 2014, when Alebord, 80 Mass. App. Ct. 438-439, remained good law, the motion judge heard the defendant's motion for new trial in which LaChance asserted that the unpreserved court room closure claim required a new trial because a substantial risk of a miscarriage of justice must be presumed because the error was structural. Nonetheless, on appeal, the Supreme Judicial Court did not announce that the rule was prospective only, which would have given LaChance the benefit of Alebord, supra. Rather, the court held that he was not entitled to a presumption of prejudice. LaChance, supra.

The defendant's claim in this case stands in precisely the same posture: at the time his claim was heard by the motion judge, Alebord was good law. Indeed, the motion judge reluctantly granted relief. See Felton II. On appeal, a panel of this court applied the intervening decisions in LaChance and Wall, concluded that the defendant was not entitled to a presumption that there was a substantial risk of a miscarriage of justice, and, as in LaChance, applied that rule despite the state of the law at the time of the motion judge's decision. Whether described as a “retroactive” application of LaChance and Wall or not, the decision in Felton II therefore was correct, the defendant's due process claim lacks merit, and the defendant's appellate counsel in Felton II was not ineffective for failing to argue that Wall and LaChance should not apply retroactively.³

Order dated August 6, 2018, denying fifth motion for new trial affirmed.

FOOTNOTES

2.   The defendant's direct appeal was consolidated with the appeal from the order denying his first motion for new trial, and decided in an unpublished decision, Commonwealth v. Felton, 78 Mass. App. Ct. 1118 (2011), from which the defendant did not appeal.

3.   Contrary to the Commonwealth's position (and the motion judge's conclusion), a claim of ineffective assistance of appellate counsel can be brought via a motion pursuant to Mass. R. Crim. P. 30, as appearing in 435 Mass. 1501 (2001). Bates v. Commonwealth, 434 Mass. 1019, 1020 (2001) (“A claim of ineffective assistance of appellate counsel may be made in a motion pursuant to Mass. R. Crim. P. 30”).