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SJC-12263

COMMONWEALTH vs. ROBERT E. MONTEIRO.

April 25, 2019.

Practice, Criminal, Postconviction relief, Capital case.

Committee for Public Counsel Services.

This case is before us on appeal from a single justice's 

denial of a motion filed by Robert E. Monteiro for the 

appointment of counsel in connection with a gatekeeper 

application that he had filed in the county court pursuant to 

G. L. c. 278, § 33E. We affirm.

Monteiro was convicted of murder in the first degree and 

related charges in 1983, and this court affirmed the convictions

after plenary review. See Commonwealth v. Monteiro, 396 Mass. 

123, 125 (1985). Since then, he has filed several motions in 

the Superior Court for postconviction relief, as summarized by 

this court in Monteiro v. Commonwealth, 473 Mass. 1007, 1007 

(2015). In that decision, we directed a single justice of this 

court to consider (a) Monteiro's gatekeeper application for 

leave to appeal from the Superior Court's denial of his motion

for the appointment of counsel to prepare and file a motion for 

forensic testing pursuant to G. L. c. 278A, and (b) his request 

to have counsel appointed for purposes of the G. L. c. 278, 

§ 33E, application. Id. at 1008.

On remand, the single justice denied Monteiro's gatekeeper 

application and also denied his request for the appointment of 

counsel. Monteiro appealed. The Commonwealth filed a motion to 

dismiss his appeal on the ground that the decision of the single 

justice on the gatekeeper application was final and 

unreviewable. We allowed the appeal to go forward, but only on 
2

the limited issue of the single justice's denial of Monteiro's 

ancillary motion for the appointment of counsel in connection 

with his G. L. c. 278, § 33E, application. See Parker v. 

Commonwealth, 448 Mass. 1021, 1022 (2007); Fuller v. 

Commonwealth, 419 Mass. 1002, 1003 (1994).

A defendant does not have a constitutional right to 

appointed counsel in connection with a new trial motion or in 

connection with a G. L. c. 278, § 33E, gatekeeper application.

See Commonwealth v. Conceicao, 388 Mass. 255, 261 (1983). See

also Parker, 448 Mass. at 1023. In these circumstances, "the 

decision whether to appoint counsel remains discretionary with 

the judge," and this court will review a decision declining to 

appoint counsel only for an abuse of discretion and to determine 

whether it "deprive[d] an indigent defendant of meaningful 

access [to postconviction review] . . . or result[ed] in 

fundamental unfairness." Conceicao, supra at 262.

Here, Monteiro has failed to show that the single justice 

abused her discretion, or that the denial of appointed counsel 

deprived him of meaningful access to review of his gatekeeper 

application or resulted in any kind of unfairness. The single 

justice properly considered, among other things, the fact that 

the Committee for Public Counsel Services had already screened 

Monteiro's case and had declined to provide him with 

representation in 2014, well after the 2012 effective date of 

G. L. c. 278A. Moreover, the single justice, when acting on the 

gatekeeper application under G. L. c. 278, § 33E, was in a good 

position to assess whether the appointment of counsel might have 

added anything meaningful to the application. The order denying

Monteiro's motion for the appointment of counsel is affirmed.

So ordered.

The case was submitted on briefs.

Robert E. Monteiro, pro se.

Paul B. Linn, Assistant District Attorney, for the 

Commonwealth.