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SJC

- 11832

COMMONWEALTH vs

. ALFREDO COMPANONIO. 1

July 6 , 2015.

Practice, Criminal , Capital case, Postconviction relief, Appeal.

The defendant was convicted in 1987 of murder in the first degree. In 2005, t his court affirmed the conviction as well as
several trial court orders on postconviction
motions. Commonwealth v. Companonio , 445 Mass. 39 (2005). The
defendant has since filed additional motions in the trial court seeking postconviction relief, all of which have been denied. In December, 2014, a single justice of this court denied the defendant's application for leave to appeal from the de nial of
his mo st recent motion

. See G. L. c. 278, § 33E. The single justice concluded that the defendant's claims were not " new and
substantial " within the meaning of the statute. The defendant now purports to appeal to the full court from the single ju stice's ruling.

A defen dant who is denied leave to appeal from a single justice acting as a gatekeeper pursuant to the last sentence of

G. L. c. 278, § 33E, has no right to appeal from the single justice's ruling deny ing leave. The single justice's ruli ng is
"final and unreviewable." See Commonwealth v. Gunter , 456 Mass. 1017, 1017 (2010), and cases cited. It cannot be appealed to
the full court; it is not subject to review under G. L. c. 211,

§ 3; and it cannot be collaterally attacked. Id

. We have routinely rejected attempts by defendants to obtain full court review of a single justice 's ruling denying such leave to appeal . See, e.g., Commonwealth v. Nesbitt , 459 Mass. 1005

1 As is our custom, we recite the defendant 's name as it
first appear s in the indictment.2

(2011); Commonwealth v. Monteiro , 451 Mass. 1009 (2008); Commonwealth v. Niemic , 451 Mass. 1008 (2008); Commonwealth v. Freeman , 451 Mass. 1006 (2008); Commonwealth v. Scott , 437 Mass. 1008 (2002). "The special function of the single justice mandated by the statute would be futile and meaningless if his or her rulings were

sub ject to appeal before the full court." Leaster

v. Commonwealth , 385 Mass. 547, 548 (1982).

The defendant's re ference in his notice of appeal to S.J.C.
Rule 2:21, as amended, 434 Mass. 1301 (2001), does not improve his position. Rule 2:21 applies in cas es where a single justice denies relief from a challenged interlocutory ruling of the
trial c ourt. It does not apply here. The denial of a postappeal motion for a new trial in a criminal case is not an interlocutory ruling. Moreover, Rule 2:21, in insta nces where it does apply, "does not create a new right of appeal" where
none otherwise existed. McMenimen v. Passatempo , 452 Mass. 178, 190 & n.12 (2008).

Appeal dismissed

.

The case was submitted on briefs. Alfredo Companioni

, pro se. Robert C. Thompson , Assistant District Attorney, for the
Commonwealth.