Zagranski v. Commonwealth (Lawyers Weekly No. 10-112-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12171 RICHARD ZAGRANSKI vs. COMMONWEALTH. June 27, 2017. Supreme Judicial Court, Superintendence of inferior courts. Practice, Criminal, Capital case. The petitioner, Richard Zagranski, was convicted of murder in the first degree in 1989. We affirmed the conviction. See Commonwealth v. Zagranski, 408 Mass. 278 (1990). In 2012, Zagranski filed a motion for postconviction relief claiming that he received ineffective assistance of trial and appellate counsel and seeking, among other things, an order granting him a new trial, an order vacating his conviction, or an order reducing the degree of the offense. He set forth several bases for the ineffective assistance claim including, as is relevant here, that his counsel had a conflict of interest that impaired counsel’s ability to provide effective representation.[1] The postconviction motion was denied. Zagranski then filed, in the county court, a petition for leave to appeal pursuant to G. L. c. 278, § 33E, in which he continued to press the conflict of interest argument. A single justice denied the petition, in August, 2013, as well as Zagranski’s subsequent motion for reconsideration.[2] In February, 2016, Zagranski filed a “Petition for Extraordinary Relief Pursuant to [G. L. c.] 211, § 3,” in the county court in which he claimed that the transcript of the hearing at which the trial judge considered the conflict of interest issue was not a part of the record that was before this court when it considered his direct appeal. In Zagranski’s view, the court was thus not able to fulfil its duty pursuant to G. L. c. 278, § 33E, to review “the whole case” because the court did not have a complete record of the trial court proceedings. A single justice denied the petition on the bases that Zagranski has an adequate alternative remedy — to seek postconviction relief in the trial court — and that his petition did not, in any event, raise a “new and substantial” issue that would entitle him to review pursuant to G. L. c. 278, § 33E. Zagranski has appealed from the single justice’s denial of his petition; the Commonwealth has moved to dismiss the appeal. A decision of a single justice denying leave to appeal under G. L. c. 278, § 33E, is final and unreviewable, and Zagranski cannot circumvent that by seeking relief pursuant to G. L. c. 211, § 3. See Cook v. Commonwealth, 451 […]