A defendant convicted of first-degree murder sought post-conviction relief through a motion to vacate, set aside, or correct his sentence. The Superior Court denied the motion. He then applied to a single justice of the Supreme Judicial Court for leave to appeal that denial under General Laws chapter 278, section 33E. The single justice denied the application.
The Supreme Judicial Court dismissed the defendant’s subsequent appeal to the full court. Under established precedent, a single justice acting as a gatekeeper under section 33E renders a final and unreviewable decision when denying leave to appeal. No further appeal to the full court is available. The defendant’s motion for appointment of counsel was also denied, as there is no right to appointed counsel where no right to appeal exists.
The full text of the opinion follows below. Slip opinions are subject to formal revision; the official version is published in the official reports.
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12333
COMMONWEALTH vs. LARRY D. WAMPLER, JR.
August 18, 2017.
Practice, Criminal, Capital case, Postconviction relief, Appeal.
The defendant, Larry D. Wampler, Jr., was convicted of murder in the first degree by reason of deliberate premeditation. We affirmed the conviction. Commonwealth v. Hung Tan Vo, 427 Mass. 464 (1998).[1] The defendant recently filed, in the Superior Court, a motion to vacate, set aside, or correct sentence, which was denied. He then applied to a single justice of this court for leave to appeal from the denial of that motion pursuant to G. L. c. 278, § 33E. The single justice denied the application. The defendant has appealed, and the Commonwealth has moved to dismiss the appeal. “A defendant who is denied leave to appeal from a single justice acting as a gatekeeper pursuant to the last sentence of G. L. c. 278, § 33E, has no right to appeal from the single justice’s ruling denying leave. The single justice’s ruling is ‘final and unreviewable.’” Commonwealth v. Companonio, 472 Mass. 1004 (2015), quoting Commonwealth v. Gunter, 456 Mass. 1017, 1017 (2010). The defendant cannot appeal to the full court.[2]
Appeal dismissed.
The case was submitted on briefs.
Larry D. Wampler, Jr., pro se.
Jamie Michael Charles, Assistant District Attorney, for the Commonwealth.
[1] At the time of trial, the defendant was referred to as Hung Tan Vo. He now goes by the name Larry D. Wampler, Jr.
[2] Because the defendant has no right to appeal to the full court, his motion for appointment of counsel in this court is also denied. There is no right to counsel where there is no right to appeal.