Court Case Record COMMONWEALTH vs. DANIEL VIDAL 2012-J-0396


Court Case Number: 2012-J-0396

Case Number2012-J-0396
Case TypeCriminal
StateMassachusetts, MA
CourtMiddlesex Superior Court
Court Address
Field Date10/22/2012
Close Date12/14/2012


James W. Sahakian, Assistant District AttorneyCommonwealthPlaintiff/Respondent
Jennifer J. Cox, EsquireDaniel VidalPro Se Defendant/Petitioner
Entry Date Paper Entry Text
10/22/2012 #1 Appeal entered pursuant to M.G.L.c. 261, § 27(D) with attachments. ^
10/25/2012 #2 Motion to waive the entry fee, filed by Daniel Vidal.
11/09/2012 #3 ORDER: The defendant appeals, pursuant to G. L. c. 261, § 27D, from a Superior Court judge's denial of his motion for appointment of appellate counsel. Under G. L. c. 261, § 27C(4), "if there is an appeal pursuant to section twenty-seven D following a denial, the court shall, within three days, set forth its written findings and reasons justifying such denial, which document shall be part of the record on appeal." While the basis of the judge's denial may be implicit in the decision, the statute requires such findings and reasons. Since there are none in this matter, the assembly was premature. Accordingly, appellate proceedings are hereby stayed until November 28, 2012, for the motion judge to enter the requisite findings and for the Middlesex Superior Court to transmit a copy of the findings to the Appeals Court. In addition to his statutory appeal, the defendant pro se filed directly in the Appeals Court a motion for the appointment of appellate counsel, and sought a waiver of any appellate filing fee required under Mass. Rule of Appellate Procedure 10(a). The motion for appointment of appellate counsel was prematurely filed because the Superior Court has not yet issued a notice of assembly of the defendant's appeal of his conviction. For this reason, the defendant's appeal has not been entered in the Appeals Court. Thus, the defendant's motion for appointment of appellate counsel is denied without prejudice to refiling after the appeal is entered in the Appeals Court. See Mass. R. App. P. 10(a)(2) (appeals in criminal cases are entered upon their receipt; no entry fee is required). Any refiled motion shall be accompanied by a new Affidavit of Indigency (and Supplement to the Affidavit, if need be) on the forms promulgated by the Supreme Judicial Court, containing updated financial information regarding his income, assets and debts. (Sullivan, J.) *Notice/Attest/Haggerty, J.
12/03/2012 #4 Copy of findings and conclusions re: Indigency, received from Middlesex Superior Court.
12/14/2012 #5 ORDER: Pursuant to G. L. c. 261, § 27D, defendant Daniel Vidal appeals from a Superior Court judge's denial of his motion for appointment of appellate counsel and waiver of appellate fees and costs by reason of indigency. See G. L. c. 261, §§ 27B & C. The motion judge had served also as the trial judge. She submitted findings and conclusions upon the subject of indigency. She determined that the defendant had not established the indigency necessary to qualify for waiver of appellate fees and costs and for appointment of free appellate counsel because his application of materials had omitted an asset of $50,000 previously evidenced to her during the process of his sentencing. For the following reasons I affirm the judge's denial. 1. Untimeliness. The defendant derives authority to appeal from the judge's denial from G. L. c. 261, § 27D. That provision grants an applicant seven days from the time of notice of denial as an interim for submission of a notice of appeal to the clerk of the trial court. The record shows that the judge entered her denial on September 12, 2012, but that the defendant did not submit his notice of appeal until October 9, 2012, or until a point twenty days beyond the statutory deadline. That tardiness would bar all grounds for challenge tq the denial and literally deprive the appealing court of authority to entertain it. 2. Merits. If this court somehow were to retain authority to review the denial despite the untimeliness of the appeal, it would respect the Superior Court judge's credibility findings. She served as the trial, sentencing, and motion judge. She disbelieved the defendant's representation of indigency. We are in no position to contradict such a finding. (Sikora, J.). *Notice/Attest/Haggerty, J.