Sellers v. Commonwealth (Lawyers Weekly No. 10-052-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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‑11192 DAVID LEE SELLERS vs. COMMONWEALTH. March 19, 2013. Supreme Judicial Court, Superintendence of inferior courts. Practice, Criminal, New trial. The petitioner, David Lee Sellers, appeals from a judgment of a single justice of this court denying his petition for relief under G. L. c. 211, § 3. The single justice neither erred nor abused his discretion in denying relief on the record that was before him. The petitioner was convicted of multiple criminal offenses in 2005, and his convictions were affirmed in 2009. Representing himself, he filed a motion for a new trial in the trial court in May, 2010, and an amended motion for a new trial in December, 2010. Neither motion has been acted on to date. The petitioner also represents that he has filed two additional motions requesting action on his new trial motions, but that those motions likewise have gone unresolved. In his petition before the single justice, he complained about the trial court’s inaction on his motions and requested that the single justice grant him a new trial for the reasons stated in the motions he filed in the trial court. The single justice was within his discretion in declining to grant the relief sought on the record before him. The petitioner did not allege, let alone demonstrate, that he had availed himself of all measures available to him in the trial court to obtain a ruling on his motions. See Matthews v. D’Arcy, 425 Mass. 1021, 1022 (1997) (identifying steps other than petition under G. L. c. 211, § 3, that litigant should take to address judicial inaction). See also Zatsky v. Zatsky, 36 Mass. App. Ct. 7, 12 (1994) (“If a decision seems overdue, the first step a litigant can take is to make inquiry of the trial judge, directly, or through the . . . clerk’s office. . . . More formal measures are available as next steps. A litigant may make a demand for action with the chief judge of the trial court concerned”). Nor did he provide copies of the motions he states that he filed in the trial court seeking action on his new trial motions. Nor did he provide the single justice with a record adequate to support the specific relief he sought, the granting of a new trial; he […]