(a) Unlawful Restraint. Any person who is imprisoned or whose liberty is restrained pursuant to a criminal conviction may at any time, as of right, file a written motion requesting the trial judge to release him or her or to correct the sentence then being served upon the ground that the confinement or restraint was imposed in violation of the Constitution or laws of the United States or of the Commonwealth of Massachusetts.
(b) New Trial. The trial judge upon motion in writing may grant a new trial at any time if it appears that justice may not have been done. Upon the motion the trial judge shall make such findings of fact as are necessary to resolve the defendant's allegations of error of law.
(c) Post Conviction Procedure.
(1) Service and Notice. The moving party shall serve the office of the prosecutor who represented the Commonwealth in the trial court with a copy of any motion filed under this rule.
(2) Waiver. All grounds for relief claimed by a defendant under subdivisions (a) and (b) of this rule shall be raised by the defendant in the original or amended motion. Any grounds not so raised are waived unless the judge in the exercise of discretion permits them to be raised in a subsequent motion, or unless such grounds could not reasonably have been raised in the original or amended motion.
(3) Affidavits. Moving parties shall file and serve and parties opposing a motion may file and serve affidavits where appropriate in support of their respective positions. The judge may on rule on the issue or issues presented by such motion on the basis of the facts alleged in the affidavits without further hearing if no substantial issue is raised by the motion or affidavits.
(4) Discovery. Where affidavits filed by the moving party under subdivision (c)(3) establish a prima facie case for relief, the judge on motion of any party, after notice to the opposing party and an opportunity to be heard, may authorize such discovery as is deemed appropriate, subject to appropriate protective order.
(5) Counsel. The judge in the exercise of discretion may assign or appoint counsel in accordance with the provisions of these rules to represent a defendant in the preparation and presentation of motions filed under subdivisions (a) and (b) of this rule. The court, after notice to the Commonwealth and an opportunity to be heard, may also exercise discretion to allow the defendant costs associated with the preparation and presentation of a motion under this rule.
(6) Presence of Moving Party. A judge may entertain and determine a motion under subdivisions (a) and (b) of this rule without requiring the presence of the moving party at the hearing.
(7) Place and Time of Hearing. All motions under subdivisions (a) and (b) of this rule may be heard by the trial judge wherever the judge is then sitting. The parties shall have at least 30 days notice of any hearing unless the judge determines that good cause exists to order the hearing held sooner.
(8) Appeal. An appeal from a final order under this rule may be taken to the Appeals Court, or to the Supreme Judicial Court in an appropriate case, by either party.
(A) If an appeal is taken, the defendant shall not be discharged from custody pending final decision upon the appeal; provided, however, that the defendant may, in the discretion of the judge, be admitted to bail pending decision of the appeal.
(B) If an appeal or application therefor is taken by the Commonwealth, upon written motion supported by affidavit, the Appeals Court or the Supreme Judicial Court may determine and approve payment to the defendant of the costs of appeal together with reasonable attorney's fees, if any, to be paid on the order of the trial court after entry of the rescript or the denial of the application. If the final order grants relief other than a discharge from custody, the trial court or the court in which the appeal is pending may, upon application by the Commonwealth, in its discretion, and upon such conditions as it deems just, stay the execution of the order pending final determination of the matter.
(9) Appeal Under G. L. c. 278, § 33E . If an appeal or application for leave to appeal is taken by the Commonwealth under the provisions of Chapter 278, Section 33E , upon written notice supported by affidavit, the Supreme Judicial Court may determine and approve payment to the defendant of the costs of appeal together with reasonable attorney's fees to be paid on order of the trial court after entry of the rescript or the denial of the application.
This rule, which marks a significant departure from prior Massachusetts practice, is derived from a number of sources. See Fed.R.Crim.P., Rules 33, 35; ABA Standards Relating to Post-Conviction Remedies (Approved Draft, 1968); Rules of Criminal Procedure (U.L.A.) Rule 632 (1974).
The moving party is to seek post conviction relief from the trial judge presiding at the initial trial. See Commonwealth v. Sullivan , 385 Mass. 497, 498 n. 1 (1981) (the judge who presided at a defendant’s trial normally should hear that defendant’s motion for a new trial). The trial judge is familiar with the case which “may make for more efficient handling.” ABA Standards, supra, § 1.4, comment at 30. See McCastle, Petitioner , 401 Mass. 105, 107 (1987) (Rule 30 “assigns the motion to the trial judge who heard the case, on the theory that [the judge’s] familiarity with the case can assist in its effective handling.”) However, for this same reason the trial judge may bring to the hearing a prejudice that another judge would not have. Recusal of the trial judge should thus be liberally exercised, particularly where it is requested by the moving party. See ABA Standards, supra, § 1.4(c). A second advantage to be gained from giving the trial court original jurisdiction to hear post conviction motions is that the necessary witnesses, if any, are likely to be convenient to the court.
Subdivision (a). When originally adopted in 1979, this subdivision consolidated the previously distinct procedures of habeas corpus and writ of error. The purpose of the revision was to simplify post conviction procedure, while maintaining the full scope of relief previously available. See ABA Standards Relating to Post-Conviction Remedies § 1.1 (Approved Draft, 1968). However, the writ of habeas corpus still has limited application in cases contending that the term of a lawfully imposed sentence has expired and basing a claim for relief on grounds distinct from issues arising at the indictment, trial, conviction or sentencing stages. See e.g., Averett, Petitioner , 404 Mass. 28, 30 (1988) (forfeiture of good time credits). A petition for a writ of habeas corpus is appropriate only where the petition alleges that the petitioner is entitled to immediate release. See Stewart, Petitioner , 411 Mass. 566, 568 (1991). On the other hand, a rule 30(a) motion is not available to contest the legality of a sentence that the defendant has already completed. Cf. Commonwealth v. Lupo , 394 Mass. 644, 646 (1985) (“Rule 30 [a] is intended primarily to provide relief for defendants incarcerated in violation of Federal law or of the laws of the Commonwealth.”)
In addition to permitting convicted defendants to seek release from illegal confinement or other restraint on their liberty, this subdivision permits them to seek the correction of an illegal sentence. A distinction is drawn between an illegal sentence and a sentence imposed in an illegal manner. See Fed.R.Crim.P., Rule 35.
The concepts of an illegal sentence and an illegally-imposed sentence are narrow and permit the trial judge no discretion in the decision to modify a sentence. Both concepts presume that a defendant’s conviction is in all ways valid and that only the sentence is in some manner defective. The difference between the two is that an illegal sentence is one that is not permitted by law for the offense committed by the defendant, e.g., a sentence that exceeds the permissible maximum. See e.g., Commonwealth v. Ambers , 397 Mass. 705 (1986) (challenge to legality of consecutive sentences); Commonwealth v. Harris , 23 Mass.App.Ct. 687, 691-92 (1987) (court sentenced defendant for an offense other than that for which the jury convicted). Illegality has been held to include not only facially illegal sentences, but sentences premised upon a major misunderstanding by the sentencing judge as to the legal bounds of the judge’s authority. E.g., United States v. Lewis , 392 F.2d 440 (4th Cir. 1968) (sentencing judge believed parole permissible upon imposition of maximum sentence); Thomas v. United States , 368 F.2d 941 (5th Cir. 1966) (sentence constituted penalty upon exercise of defendant fifth amendment rights); Robinson v. United States , 313 F.2d 817 (7th Cir. 1963) (sentencing judge recommended parole when defendant ineligible). An illegally-imposed sentence is one where the irregularity lies with the procedure employed in imposing the sentence. See e.g., Hill v. United States , 368 U.S. 424 (1962), where the trial court denied the defendant his right of allocution, which was held to be a procedural irregularity. In the context of a probation revocation order, a motion under Rule 30(a) would be appropriate only as a vehicle for challenging the legality of the sentence the defendant received and not the legality of the order revoking probation. Irregularities in the probation revocation process should be challenged through a direct appeal. See Commonwealth v. Christian , 429 Mass. 1022 (1999).
An illegal sentence must be corrected by the court at any time upon proper motion by the defendant. An illegally-imposed sentence can only be corrected upon a motion filed within the time permitted by Mass.R.Crim.P., Rule 29(a), that is, within 60 days after imposition. See Rules of Criminal Procedure (ULA) Rule 632 (1974). The only restriction upon the correction of an illegal sentence is that it cannot be increased if it has been partially executed. See United States v. Benz , 282 U.S. 304 (1931).
Subdivision (b). This subdivision was taken primarily from Fed.R.Crim.P., Rule 33. The standard established in the first sentence is, however, taken directly from former G.L. c. 278, § 29 (St.1966, c. 301).
Prior to 1964 a motion for a new trial under G.L. c. 278, § 29 could only be granted within one year after the end of the trial. See Fine v. Commonwealth , 312 Mass. 252 (1942); Commonwealth v. Sacco , 261 Mass. 12 (1927). However, a 1964 amendment rewrote the statute so that the court could consider such a motion filed at any time after judgment. St.1964, c. 82.
In the absence of constitutional error, whether to grant a motion for a new trial on an issue that has been properly presented to the court is within the sound discretion of the trial judge. See Commonwealth v. Smith, 318 Mass. 141, 142 (1980). The basis for a new trial can either relate to the conduct of the trial, see e.g., Commonwealth v. Vaidulas , 433 Mass. 247, 250 (2001) (“The only means of revisiting after trial a matter raised in a motion in limine is through a motion for postconviction relief under rule 30.”); Commonwealth v. Francis , 411 Mass. 579, 585-86 (1992) (improper jury instruction); Commonwealth v. Westmoreland , 388 Mass. 269, 271 (1983) (ineffective assistance of counsel); Commonwealth v. Schand , 420 Mass. 783, 787-88 (1995) (prosecutor’s failure to disclose exculpatory evidence); Commonwealth v. Nickerson , 388 Mass. 246, 249-250 (1983) (defendant’s mental incompetence); Commonwealth v. Ciminera , 11 Mass.App.Ct. 101, 107-110, aff’d 384 Mass. 807 (1981) (jury misconduct), or to the discovery of new facts that bear on the question of guilt, see e.g., Commonwealth v. Pires , 389 Mass. 657, 664-666 (1983) (newly-discovered evidence); Commonwealth v. Watson , 377 Mass. 814, 815 (1979) (recanted testimony).
A defendant seeking a new trial on the basis of newly discovered evidence must establish both that the evidence is newly discovered and that it casts real doubt on the justice of the conviction. See Commonwealth v. Pike , 431 Mass. 212, 218 (2000). The allegedly new evidence must be material and credible, and “carry a measure of strength in support of the defendant’s position.” Commonwealth v. Grace , 397 Mass. 303, 305-06 (1986). A defendant must also show that the evidence was unknown to the defendant or the defendant’s counsel, and not discoverable through “reasonable pretrial diligence” at the time of trial or at the time of the presentation of any earlier motion for a new trial. See Pike, 431 Mass. at 218. “The motion judge decides not whether the verdict would have been different, but rather whether the new evidence would probably have been a real factor in the jury’s deliberations. This process of judicial analysis requires a thorough knowledge of the trial proceedings and can, of course, be aided by a trial judge’s observation of events at trial.” Commonwealth v. Moore , 408 Mass. 117, 126-27 (1990) quoting Commonwealth v. Grace , 397 Mass. 303, 305-06 (1986).
A new trial motion under Rule 30(b) is the appropriate vehicle to attack the validity of a guilty plea or an admission to sufficient facts. See Commonwealth v. Fanelli , 412 Mass. 497 (1992) (treating the defendant’s postsentence motion to withdraw guilty pleas as a motion for a new trial pursuant to Mass.R.Crim.P. 30); Dunbrack v. Commonwealth , 398 Mass. 502 (1986) (the appropriate method for attacking the lawfulness of the admission to sufficient facts and the sentence imposed is a postconviction motion for new trial pursuant to rule 30(b) and not a petition under c. 211 § 3 ). A Rule 30(b) motion is also appropriate where the defendant has been deprived of a constitutionally protected right by counsel’s failure to appeal. See Commonwealth v. Cowie , 404 Mass. 119, 121 (1989). However, granting a new trial because the verdict is against the weight of the evidence should be done according to Rule 25(b)(2), not Rule 30. See Commonwealth v. Preston , 393 Mass. 318, 324 (1984).
The requirement that the trial judge make findings upon a motion for a new trial is contrary to the traditional rule in the Commonwealth, see Commonwealth v. Morgan , 280 Mass. 392 (1932), but is based upon the following language of the court in Earl v. Commonwealth , 356 Mass. 181 (1969):
We recognize that the single justice has power to entertain writs of error in such cases but it is preferable that these questions be resolved in the first instance by the trial judge upon a motion for new trial. The effect of this practice will be to place in the hands of the trial judge, rather than in the hands of the single justice, the task of resolving factual disputes underlying alleged constitutional errors.
Id. at 183. Accord, Commonwealth v. Penrose , 363 Mass. 677 (1973). Cf. Commonwealth v. Preston , 393 Mass. 318, 323 n. 4 (1984) (declining to address the issue whether findings are required in response to all rule 30(b) motions regardless of outcome). The absence of a finding of fact hampers appellate review of the judge’s decision on a new trial motion. See e.g., Commonwealth v. Caban , 48 Mass.App.Ct. 179, 184 (1999) (remanding case for finding of fact).
General Laws c. 279, § 41 provides that judgment should be entered against a corporation that fails to appear in court to answer charges against it. If the corporation can later show cause to excuse its prior neglect, it should be permitted to have the prior judgment vacated upon a motion for a new trial.
The original Reporter’s Notes to Rule 30 intended that the remedy available under this subdivision be truly post-conviction, that is, not open to a defendant until the validity of the finding or verdict of guilt was conclusively established by an appellate court if an appeal was taken. This policy was designed to avoid complex and duplicitous proceedings and to protect the interests of the defendant, who is ordinarily limited to a single motion for a new trial. In the years since this subdivision was first promulgated, however, it has not been unusual for defendants to file a rule 30(b) motion after a notice of appeal has been filed. If the motion is pending at the time the appeal is entered, counsel then request a stay of the appeal until the motion is disposed of so that any appeal from the ruling can be consolidated with that from the judgment. See Commonwealth v. Powers , 21 Mass.App.Ct. 570, 572 n. 2 (1986). The Supreme Judicial Court has recognized that a judge may rule on a new trial motion prior to the determination of an appeal from the conviction. See Commonwealth v. Hallet , 427 Mass. 552, 555 (1998) (describing considerations a judge should take into account in deciding whether to rule on the merits of a new trial motion presented prior to the determination of an appeal); Commonwealth v. Smith , 384 Mass. 519, 524 (1981) (“defendant’s appeal from his conviction should, when possible, be combined for review with his appeal from the denial of any motion for a new trial”).
This rule does not limit access of a criminal defendant to review pursuant to G.L. c. 211, § 3 , which grants the Supreme Judicial Court “general superintendence of all courts of inferior jurisdiction to correct and prevent errors and abuses therein if no other remedy is expressly provided ... .” That power, however, should be and has been exercised only in exceptional circumstances, when necessary to protect substantive rights. See McGuinness v. Commonwealth , 420 Mass. 495, 497 (1995); Forte v. Commonwealth , 418 Mass. 98, 99 (1994); Commonwealth v. McCarthy , 375 Mass. 409, 414 (1978) and cases cited.
(c)(1). In 2001, this subsection was amended to eliminate the requirement that the Attorney General be served in every case where a motion is filed under Rule 30(a). The subsection now requires service of a motion for a new trial, under either subsection (a) or subsection (b), upon the office of the prosecutor who represented the Commonwealth in the trial court, whether a District Attorney’s Office or the Attorney General’s Office. The prosecutor’s office which maintains the original trial file is in the best position, and is responsible for, responding to motions for a new trial.
(c)(2). Subdivision (c)(2) was modeled after ME REV STAT ANN, tit. 14 § 5507 (1964), and was intended to establish finality of convictions and to eliminate “piecemeal litigation ... whose only purpose is to vex, harass, or delay.” Sanders v. United States , 373 U.S. 1, 18 (1963). See Commonwealth v. Donahue , 6 Mass.App.Ct. 971 (1979) (defendant’s fourth motion for new trial). This rule is not intended to foreclose from future consideration grounds which were not known and could not have been found out with the exercise of due diligence. The constitutionality of the Maine statute from which this subdivision is taken was upheld by the Supreme Court in Murch v. Mottram , 409 U.S. 41 (1972). See ABA Standards Relating To Post-Conviction Remedies § 6.2(b)(i) (Approved Draft, 1968).
The rule of waiver established in the subdivision applies, as a result of case law, to claims that were not preserved at trial or not raised in an appeal, as well as to claims that were not put forward in a prior new trial motion. See Rodwell v. Commonwealth , 432 Mass. 1016, 1017 (2000) (“If a defendant fails to raise a claim that is generally known and available at the time of trial or direct appeal or in the first motion for postconviction relief, the claim is waived.”); Commonwealth v. McLaughlin , 364 Mass. 211, 229 (1973), quoting from Commonwealth v. Dascalakis , 246 Mass. 12, 24 (1923) (“It has been the unbroken practice both under the statute [former G.L. c. 278 § 29 on which Rule 30 was based] and at common law respecting motions for new trial not to examine anew the original trial for the detection of errors which might have been raised by exceptions taken at the trial.”) Waiver applies equally to constitutional and non-constitutional claims. See Commonwealth v. Deeran , 397 Mass. 136, 139 (1986).
Where a new trial motion presents a claim that could have been raised at trial but was not, the discretion a judge has to entertain the issue, as well as the scope of appellate review of the judge’s decision, differs depending on the timing of the motion. Where the motion is presented to the court prior to the determination of an appeal, the motion judge, especially if the judge presided over the original trial, has wide discretion to consider an issue that was not raised at trial. See Commonwealth v. Hallet , 427 Mass. 552, 554-55 (1998). If the judge does consider the issue on its merits, it opens the issue up to full appellate review. Id. If the judge does not consider the issue on the merits, however, and denies relief based on the waiver doctrine, the standard on appellate review is confined to whether there was a substantial risk of a miscarriage of justice. Id. at 554. A judge should take into account in deciding to deny a new trial motion on the merits rather than on the basis of waiver, the advantage and disadvantage of making full appellate review available. Id.
Since it affects the scope of appellate review, if the judge is going to deny the motion, the judge should make clear whether the decision is based on a consideration of the merits, or on the basis that the error did not raise a substantial risk of a miscarriage of justice - which is the standard for considering issues that have been waived because they were not preserved at trial. See id. at 555. (“The judge should recognize that, unless the asserted error concerns a manifest injustice or created a substantial risk of a miscarriage of justice, she has wide discretion whether to consider any new trial issue fully on its merits.”) Cf. Commonwealth v. Depace , 433 Mass. 379, 382 n. 2 (2001) (where the judge considered the matter only on the threshold question whether the defendant raised a substantial issue necessitating an evidentiary hearing, the issue was not preserved for full appellate review); Commonwealth v. Oliveira , 431 Mass. 609, 612 (2000) (where the judge considered the matter only to determine if the issue raised an asserted error that created a substantial risk of a miscarriage of justice, the issue was not preserved for full appellate review).
If a new trial motion is presented after an appeal has been decided, the discretion the judge has to consider an issue that could have been raised earlier, is much more limited. In this posture, the Supreme Judicial Court has recommended restricting consideration of such ordinarily waived issues to “those extraordinary cases where, upon sober reflection, it appears that a miscarriage of justice might otherwise result.” Commonwealth v. Watson , 409 Mass. 110, 112 (1991). In determining if a substantial risk of a miscarriage of justice warrants the judge in considering a claim that would otherwise be precluded because it was not raised earlier, the judge should take into account three factors, taken from Commonwealth v. Miranda , 22 Mass.App.Ct. 10, 21 n. 22 (1986); whether there is a genuine question of guilt or innocence; whether the error was significant enough in the context of the trial to make it plausible to infer that the result might have been different but for the error; and, whether counsel’s failure to object at trial was simply a reasonable tactical decision. See Commonwealth v. Amirault , 424 Mass. 618, 647 (1997). However, where a new trial motion raises an issue for the first time whose constitutional significance was not established until after the trial and appeal, so that the defendant did not have a genuine opportunity to preserve the issue in the normal course of events, the judge may consider it. See Commonwealth v. Burkett , 396 Mass. 509, 511 (1986). The standard of review from the denial of a new trial motion filed after an appeal has been decided is the same whether the motion judge considered the issue or not, whether there was a substantial risk of a miscarriage of justice. See Commonwealth v. Curtis , 417 Mass. 619, 624 n. 4 (1994).
(c)(3). The primary purpose of subdivision (c)(3) is to encourage the disposition of post conviction motions upon affidavit. In accordance with prior practice, see Commonwealth v. Hubbard , 371 Mass. 160, 174 (1976) quoting Commonwealth v. Coggins , 324 Mass. 552, 556-57, cert. denied, 338 U.S. 881 (1949), such motions should ordinarily be heard on the facts as presented by affidavit, although in particular circumstances, the judge may in the exercise of discretion receive oral testimony. See Commonwealth v. Figueroa , 422 Mass. 72, 77 (1996) (the decision whether to hold an evidentiary hearing on a new trial motion under Rule 30 is within the sound discretion of the judge). Where a substantial issue is raised, however, the better practice is to conduct an evidentiary hearing. See Blackledge v. Allison , 431 U.S. 63, 75-76 (1977). Compare Commonwealth v. Licata , 412 Mass. 654, 660 (1992) (error to refuse a hearing on new trial motion which raised a substantial issue of ineffective assistance of counsel) with Commonwealth v. Stewart , 383 Mass. 253, 257 (1981) (not error to refuse a hearing on new trial motion which failed to raise substantial issue concerning perjury by prosecution witness). In determining whether the motion raises a substantial issue which merits an evidentiary hearing, the judge should look not only at the seriousness of the issue asserted, but also to the adequacy of the defendant’s showing. See id. at 257-58. Whether or not a substantial issue is presented must, of course, be determined on the face of the motion and affidavit. The motion should specify the grounds for relief, see Commonwealth v. Saarela , 15 Mass.App.Ct. 403, 407 (1983), and the affidavit should provide the factual support necessary to determine the issue. The court is fully warranted in dismissing a motion unaccompanied by affidavit, see Commonwealth v. Colantonio , 31 Mass.App.Ct. 299, 302 (1991); or one whose the factual allegations are “obscure,” cf. Sayles v. Commonwealth , 373 Mass. 856 (1977), “impressionistic and conclusory,” cf. Commonwealth v. Coyne , 372 Mass. 599, 600 (1977), or untrustworthy, see Commonwealth v. Lopez , 426 Mass. 657, 662 (1998).
The only change contemplated by this subdivision is that the use of this established procedure is to be extended to all cases where it is deemed appropriate by the trial judge.
(c)(4). Discovery in the context of a new trial motion is not a matter of right. The motion must first establish a prima facie case for relief before discovery is available. However, where that hurdle is met and discovery would be appropriate to develop facts necessary to support the claim, it is within the judge’s discretion to allow discovery. Discovery is appropriate where specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he or she is entitled to relief. Cf. Harris v. United States , 394 U.S. 286, 300 (1969). This subsection provides that the Commonwealth, as well as the defendant, may obtain discovery. Cf. Rules Governing § 2254 Cases in the United States District Courts, Rule 6(c) (recognizing the right of the respondent in a habeas corpus case to take the deposition of the petitioner). If, upon completion of discovery, the defendant is totally unable to make a reasonable proffer of evidence on a crucial element of the case, no hearing need be held and the motion may be dismissed.
In 2001, this subsection was amended to eliminate confusion arising from the reference to discovery in civil cases. The judge has wide discretion to allow the appropriate form of discovery, see Commonwealth v. Stewart , 383 Mass. 253, 261 (1981), which may include orders to produce evidence or statements, as provided in the Rules of Criminal Procedure, and in an unusual case may include depositions or other modes of discovery provided in the Rules of Civil Procedure. Where necessary, a party subject to discovery may seek an appropriate protective order.
In 2001, this subsection was also amended to require the opposing party to receive notice and an opportunity to be heard before the judge grants a discovery request. This provision is particularly important in the context of a request that evidence in the possession of the Commonwealth be made available to the defendant for scientific testing, such as DNA analysis. Before ordering such discovery, the judge must take into account a number of issues whose resolution requires the Commonwealth’s participation, including the potential relevance of the results to the ground the motion advances for a new trial, the feasibility of successful testing, and the details of access to and testing of the evidence. See generally National Commission on the Future of DNA Evidence, Postconviction DNA Testing: Recommendations For Handling Requests (Nat’l. Inst. Justice 1999) at 52-53.
(c)(5). As a matter of constitutional obligation, the state need only ensure that indigent defendants have meaningful access to whatever post conviction proceedings are generally available. See Commonwealth v. Conceicao , 388 Mass. 255 (1983). Counsel is not necessary in every case to ensure that end. Id. at 261. The decision whether to appoint counsel on a motion for a new trial is within the discretion of the trial judge. However, where the motion raises a meritorious, or even colorable claim, “it is much the better practice to assign counsel.” Id. at 262. G.L. c. 211D § 14 provides for the Committee for Public Counsel Services to represent indigent defendants in post conviction proceedings, and judges may refer requests for counsel to the Committee for initial screening.
If the motion is frivolous, repetitive, or the issues are so simple and easy that an attorney is not necessary to elucidate them, the judge may deny a motion for the appointment of counsel. See Conceicao, supra, 388 Mass. at 261-62. Where the motion is presented to the trial judge, the judge may take into account the fact of familiarity with the original record, or with that in prior new trial motions, in declining to appoint counsel. Id. at 261.
By amendment in 2001, this subsection gave judges discretion to allow for the payment of costs associated with the preparation and presentation of a new trial motion. Such costs may include the preparation of a transcript, obtaining the services of an investigator, retaining the services of an expert, or paying for scientific testing. As with the decision to appoint counsel, there is no constitutional right to have the state pay for these types of costs associated with a new trial motion. See Commonwealth v. Davis , 410 Mass. 680, 684 n. 7 (1991). But where the defendant seeks costs that are reasonably necessary to develop support for a well founded basis for granting a new trial, it is appropriate for the judge to exercise discretion and allow the request. In making the decision to allow costs associated with a new trial motion, the judge should take into account the likelihood that the expenditure will result in the defendant’s being able to present a meritorious ground for a new trial. Where the request concerns scientific testing of evidence in the Commonwealth’s possession, as with DNA analysis, the court should consider a request for funds in conjunction with the appropriate discovery motion under subsection (c)(4) seeking access to the evidence in question.
By amendment in 2001, this subsection required that the Commonwealth be given notice and an opportunity to be heard with respect to a request for costs in connection with a new trial motion. Unlike a request for costs prior to trial, in the context of a new trial motion there is no reason to deny the Commonwealth an opportunity to participate in a hearing on this type of request in order to avoid the prejudice that can result from the defendant’s being forced to reveal trial strategy prematurely. Cf. McKinney v. Paskett , 753 F.Supp. 861, 864 (D.C. Id. 1990). The sound exercise of a judge’s discretion to allow the defendant costs will depend in part on an evaluation of the legal theory which the expenditure of funds would support. The Commonwealth’s participation in this process will result in a better informed decision. This subsection, however, does not give the Commonwealth a right to participate in the determination of a request for the initial appointment of counsel.
(c)(6). Subdivision (c)(6) was originally taken from 28 U.S.C. § 2255 (1949) and authorizes the court to make a determination--with or without a hearing--without requiring the presence of the moving party.
The defendant’s presence is not required at a hearing on a motion for a new trial. See Commonwealth v. Owens , 414 Mass. 595, 604 (1993) citing Commonwealth v. Costello , 121 Mass. 371, 372 (1876). Where the defendant’s presence will be of little help to the court--e.g., at the determination of purely legal issues--a proper determination can be made in his absence. Sanders v. United States , 373 U.S. 1, 21 (1963); Howard v. United States , 274 F.2d 100, 104 (8th Cir. 1960). See Mass.R.Crim.P., Rule 18 and Reporters’ Notes. It is therefore appropriate to screen post-conviction motions carefully, and to utilize other than summary disposition only where an evidentiary hearing to resolve factual issues requires the presence of the defendant. ABA Standards Relating to Post-Conviction Remedies § 4.5(a); § 4.6, commentary at 74-75 (Approved Draft, 1968).
(c)(7). This subdivision is designed to expedite the determination of motions filed pursuant to this rule. In 2001, it was amended to give the parties at least 30 days notice of a hearing on a new trial motion, unless the judge determines that good cause exists to order the hearing held sooner. In light of the fact that the Commonwealth need not respond to every new trial motion, since some may be denied on their face as without merit, the primary objective of this provision is to avoid the problem of having the Commonwealth placed in the position of having to respond to a new trial motion without adequate time to prepare.
(c)(8) & (c)(9). Subdivision (c)(8) was originally patterned after CAL PENAL CODE § 1506 (Deering Supp. 1976).
Appeals from new trial motions in cases subject to G. L. c. 278, § 33E go to the Supreme Judicial Court. In all other cases, the Appeals Court is the appropriate venue. Either party may appeal from an adverse determination on a new trial motion. A ruling in favor of a defendant on a motion for relief from unlawful restraint or for a new trial pursuant to this rule does not preclude a Commonwealth appeal, since a successful appeal would merely reinstate the verdict or finding of guilt and would not subject the defendant to re-prosecution or multiple punishment. United States v. Wilson , 420 U.S. 332 (1975).
A defendant’s request for release on bail pending appeal is a matter within the discretion of the trial judge. See Forte v. Commonwealth , 418 Mass. 98, 100 (1994). However, the provision giving the judge discretion to release a defendant on bail pending appeal applies only to appeals from an order for a new trial or an order determining that the defendant’s sentence should be reduced to a term of imprisonment less than the time he already has served. See Stewart v. Commonwealth , 413 Mass. 664 (1992).
Under subdivisions (c)(8)(B) and (c)(9), the appellate court is to determine the defendant’s costs of appeal which are then to be paid to the defendant by the Commonwealth on the order of the trial court. In 1995, the Standing Advisory Committee on Criminal Procedure reconsidered the several rules concerning the payment of reasonable attorney’s fees to insure that they were consistent. In Latimore v. Commonwealth , 417 Mass. 805 (1994), the Commonwealth filed an application for leave to appeal the allowance of the defendant’s motion for a new trial under the provisions of G. L. c. 278, § 33E . The application was denied by the single justice and the defendant moved for costs and attorney’s fees. Because the application for appeal in a capital case was controlled by section 33E, rather than Rule 30(c)(8)(B), no specific provision for payment of fees and costs were available. The court observed that this situation, while rare, presented an anomaly in the rules.
The committee reconsidered the appropriate rules and added language to address the situation where the Commonwealth is making application for leave to appeal and adds directions for payment of fees and costs upon the denial of the application.
The Single Justice in the Memorandum of Decision in the County Court in Commonwealth v. Latimore, Supreme Judicial Court for Suffolk Co. 92-0469 said that in appropriate circumstances he would read the authority granted to the Appeals Court to include the Supreme Judicial Court. To confirm this authority to include both appellate courts, Rule 30(c)(8)(B) was amended to specifically include both courts.
The specific shortcoming of the rules addressed in Latimore was corrected by the addition of Rule 30(c)(9) which provides the Supreme Judicial Court with authority to award fees and costs in capital cases under the provision of G. L. c. 278, § 33E .