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Cooper v. Commonwealth (Lawyers Weekly No. 10-046-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-12024   SCOTT COOPER  vs.  COMMONWEALTH.     April 1, 2016.     Supreme Judicial Court, Superintendence of inferior courts.  Practice, Civil, Notice of appeal.  Notice, Timeliness.     Scott Cooper appeals from a judgment of the county court denying, without a hearing, Cooper’s petition for relief under G. L. c. 211, § 3, or for relief in the nature of mandamus.  We affirm.   In 2002, Cooper was convicted of forcible rape of a child and other offenses.  His convictions were affirmed by the Appeals Court in an unpublished decision.  Commonwealth v. Cooper, 69 Mass. App. Ct. 1110 (2007).  In 2013, Cooper filed a motion for a new trial, which was denied by a judge in the Superior Court (motion judge).  He filed a late notice of appeal and was advised that he must file a motion for an extension of time to do so.  He filed such a motion shortly thereafter, but apparently it was misplaced in the clerk’s office and was not acted on for over two months.  Once it was found, the motion judge allowed the motion and gave him forty-five days to file his notice of appeal.  Cooper did not file a new notice of appeal at that point, nor did he request that his original notice of appeal be deemed filed.  The record has not been assembled, and no appeal has been docketed in the Appeals Court.  It appears that Cooper discovered this when he filed a motion to file his brief late in the Appeals Court and was informed that he had no matter pending in that court.  He wrote to the Chief Justice of the Trial Court seeking assistance.  His request was forwarded to various court personnel, but no further action on his appeal was taken.  Ultimately, Cooper filed his petition in the county court for relief pursuant to G. L. c. 211, § 3, or for relief in the nature of mandamus pursuant to G. L. c. 249, § 5.  He subsequently filed a motion in the single justice session to transfer the matter to a single justice of the Appeals Court, stating that he was seeking only leave to file a late notice of appeal.  The single justice denied all relief without a hearing.   Cooper has filed a memorandum and appendix pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), which requires a petitioner seeking relief […]

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Posted by Massachusetts Legal Resources - April 1, 2016 at 7:38 pm

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