Opinion
No. 15–P–1391.
08-12-2016
COMMONWEALTH v. Michael A. BOCCHINO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Michael A. Bocchino, appeals from the denial of his fourth postconviction motion, pursuant to G.L.c. 278A, § 3, inserted by St.2012, c. 38, seeking forensic and scientific analysis of a baseball hat worn by the assailant and admitted in evidence during the defendant's trial on a charge of armed assault with intent to rob. We affirm.
We previously affirmed the trial judge's denial of the defendant's third c. 278A, § 3, motion and substantively addressed the defendant's argument pursuant to § 3(b )(4). Here, the defendant's motion suffers from the same defects with regard to § 3(b )(4) addressed therein. See Commonwealth v. Bocchino, 87 Mass.App.Ct. 1117 (2015). The trial judge also ruled on all of the G.L.c. 278, § 3, motions previously filed by the defendant.
Discussion. “To meet the requirement set forth in G.L.c. 278A, § 3(b )(5), a motion seeking scientific testing must include ‘information demonstrating that the evidence or biological material has not been subjected to the requested analysis' for one of five enumerated reasons.” Commonwealth v. Wade, 467 Mass. 496, 510 (2014), quoting from G.L.c. 278A, § 3(b )(5). “[T]he motion judge based his decision on the documents filed [with the motion]. Therefore, we consider de novo whether [the defendant's] motion and affidavits meet the requirements of G.L.c. 278A, § 3, and afford no deference to the motion judge on questions of fact.” Id. at 506.
General Laws c. 278A, § 3(b ), states, “[t]he motion shall include the following information....”
Here, the judge properly denied the defendant's motion, as it did not contain the information required by § 3(b )(5). See G.L.c. 278A, § 3(e ). The defendant failed to provide any support for his assertion that “a reasonably effective attorney would have sought the analysis and either the moving party's attorney failed to seek the analysis or the judge denied the request.” G.L.c. 278, § 3(b)(5)(iv). Compare Commonwealth v. Donald, 468 Mass. 37, 47 (2014) (motion failed to satisfy § 3 [b][5][i] where it merely stated that tests “had not yet been developed at the time of the conviction”). The defendant's motion merely repeated the language found in § 3(b)(5)(iv), without providing information to support this bare contention. See id., at 48 (“[A] § 3 motion must do more than merely recite the elements of G.L.c. 278A, § 3 [b ][5][i]”). We discern no error.
“The court shall expeditiously review all motions filed and dismiss, without prejudice, any such motion without a hearing if the court determines, based on the information contained in the motion, that the motion does not meet the requirements set forth in this section.” G.L.c. 278A, § 3(e ).
Order dated August 13, 2015, denying the renewed G.L.c. 278A, § 3, motion affirmed.