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SJC-12731

DANIEL GHEBREHIWET vs. COMMONWEALTH.

July 16, 2019.

Supreme Judicial Court, Superintendence of inferior 

courts. Practice, Criminal, Speedy trial.

The petitioner, Daniel Ghebrehiwet, appeals from a judgment 

of a single justice of this court denying his petition pursuant 

to G. L. c. 211, § 3. We affirm.

Ghebrehiwet was charged by a complaint in the District 

Court in 2012, with, among other things, several firearm 

offenses and receiving a stolen motor vehicle. He failed to 

appear in court, and a warrant issued. In April 2018, while 

incarcerated in Indiana for unrelated offenses, he filed a 

petition for a speedy disposition of the Massachusetts charges 

pursuant to the Interstate Agreement on Detainers (IAD). He was 

brought to the Commonwealth and appeared for arraignment in the 

District Court in August. On December 5, he filed a motion to 

dismiss the charges on the basis that the Commonwealth had 

failed to bring him to trial within the time frame required by 

the IAD. A judge in the District Court allowed the motion on 

December 6. 

Meanwhile, Ghebrehiwet had been indicted on the same 

charges on November 30, 2018, and he appeared in the Superior 

Court for arraignment on the indictment on December 28. On that 

same date he filed, in that court, two motions to dismiss: one 

on the basis that the Superior Court lacked jurisdiction because 

the District Court had previously dismissed the complaint

(jurisdictional motion), and one on the same basis on which he 

had moved to dismiss in the District Court -- that the 

Commonwealth had failed to abide by the time limits of the IAD
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(IAD motion). The Superior Court judge denied the 

jurisdictional motion, noting that once the indictments had been 

returned, the District Court no longer had jurisdiction (i.e., 

that the District Court had no authority to dismiss the 

complaint because it no longer had jurisdiction over the case). 

The judge took the IAD motion under advisement. 

While the IAD motion was pending, Ghebrehiwet filed his 

G. L. c. 211, § 3, petition in the county court, arguing, among 

other things, that in denying the jurisdictional motion, the 

Superior Court judge had "revoked" the District Court judge's 

dismissal of the complaint. The Superior Court judge 

subsequently denied the IAD motion before the single justice 

acted on the G. L. c. 211, § 3, petition. The single justice 

thereafter denied the petition.

The case is now before us pursuant to S.J.C. Rule 2:21, as 

amended, 434 Mass. 1301 (2001), which requires a showing that 

"review of the trial court decision cannot adequately be 

obtained on appeal from any final adverse judgment in the trial 

court or by other available means." S.J.C. Rule 2:21 (2). 

Ghebrehiwet has not made such a showing. "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 be 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." Bateman v. Commonwealth, 

449 Mass. 1024, 1024-1025 (2007), quoting Jackson

v. Commonwealth, 437 Mass. 1008, 1009 (2002). See Ventresco

v. Commonwealth, 409 Mass. 82, 83-84 (1991), and cases cited.

Ghebrehiwet recognizes this but nonetheless argues that the 

Commonwealth's failure to bring him to trial within the time 

frame provided for in the IAD essentially violates his right to 

a speedy trial and that this alleged violation cannot be 

effectively remedied after trial. He also suggests that speedy 

trial rights are akin to double jeopardy rights for which 

appellate review after trial would not provide adequate relief. 

We have held otherwise. See, e.g., Flood v. Commonwealth, 465 

Mass. 1015, 1017 (2013), and cases cited (rejecting petitioner's 

claim that speedy trial right is akin to double jeopardy right 

for which appellate review after trial would not provide 

adequate relief). See also Cousin v. Commonwealth, 442 Mass. 

1046, 1046 (2004). 
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The single justice did not err or abuse his discretion in 

denying relief under G. L. c. 211, § 3.

Judgment affirmed.

The case was submitted on the papers filed, accompanied by 

a memorandum of law.

Daniel Ghebrehiwet, pro se.