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SJC

- 11779

DAVID SOUCY vs

. COMMONWEA LTH

.

March 6 , 2015.

Supreme Judicial Court , Superintendence of inferior courts.

David Soucy appeals from a judgment of a single justice of this court denying his petition for relief under G. L. c. 211,
§ 3. We affirm.

Soucy was indicted for tr afficking in a c lass B substance
in violation of G

. L. c. 94C, § 32E

. In moving to dismiss the indictments, he argued that because the charges concerned pharmaceutical drugs (oxycodone tablets) , the weight requirement s under § 32E should be measured by the weight of the

controlled substance (oxycodone) contained in the tablets , not by the tablets' total weight
, and that there was an insufficient

amount of the control led substance in the tablets to meet the statutory weight requirement s

. H is motion was denied by a judge in the Superior Court . His G. L. c. 211, § 3, petition in the county court challenged that interlocutory ruling . The single justice denied relief without a hearing.

Under S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), Soucy is required to " set forth the reasons why review of the trial court decision cannot adequately be obtained on appeal from any final adverse judgment in the trial cour t or by other
available means. " He has not done so. If and when he is
convicted on one or more of the indictments, any challenge to the weight requirements under § 32E or to the sufficiency of the2

evidence in support of those requirements can adequately be reviewed in the normal appe llate process.

" The denial of a motion to dismiss in a criminal case is not appealable until after trial, and we have indicated many
times that G. L. c. 211, § 3, may not b e used to circumvent that

rule. Unless a single justice decides the matter on the merits or reserves and reports it to the full court, neither of which occurred here, a defendant cannot receive review under

G. L. c. 211, § 3, from the denial of his motion to dismiss. "

Jackson v. Commonw ealth , 437 Mass. 1008, 1009 (2002), and cases
cited. A very limited exception exists where , before a trial or

a retrial, a def endant raises a double jeopardy claim of
substantial merit. Id

. See Neverson v. Commonwealth , 406 Mass. 174, 175

- 176 (1989). B ut w e have consistent ly rejected attempts
to obtain interlocutory review as a matter of right under G. L.

c. 211, § 3, of denials of mo tions to dismiss on other bases that defendants have attempted to analogize to double jeopardy
claims. See, e.g., Grand

- Pierre v. Commonwealth , 461 Mass.
1003 , 1004 (2011) ( challenge to constitutionality of statute under which defendant was charged); Garden v. Commonwealth , 460
Mass. 1018 , 1019 (2011) ( statute of limitation claim); Fitzpatrick v. Commonwealth , 453 Mas s. 1014 , 1015 (2009) (jurisdictional claim); Bateman v. Commonwealth , 449 Mass. 1024
, 1024

- 1025 (2007) (challenge to sufficiency of evidence before grand jury); Cousin v. Commonwealth , 442 Mass. 1046 , 1046 (2004) (speedy trial claim); King v. Commonwealth
, 442 Mass. 1043 , 1044 (2004) (claim of preindictment delay); Jackson v. Commonwealth
, supra (due process challenge to prosecution). See also 1 Appellate Practice in Massachusetts § 1.5, at 1

- 14 (Mass. Cont. Legal Educ. 3d ed. Supp. 2014) ("The exception i s based on the unique nature of the guarantee not to be placed in jeopardy
twice " ). There is simply " no case in which we have held that a . . . claimant [in Soucy's position], like a double jeopardy claimant, is entitled to review pursuant to G. L. c. 211
, § 3."

Jackson v. Commonwealth
, supra

.

The single justice neither erred as a matter of law nor
abused his discretion in denying the petition.

Judgment affirmed

.

The case was submitted on the papers filed, accompanied by

a memorandum of law.
William J. Barabino for the petitioner

. Elin H. Graydon , Assistant District Attorney, for the

Commonwealth.