Commonwealth v. Pellot

82 Mass.App.Ct. 1120

978 N.E.2d 106

COMMONWEALTH

v.Keenan S. PELLOT.

No. 11–P–1289.

Appeals Court of Massachusetts.

November 9, 2012.

OPINION TEXT STARTS HEREBy the Court (GRAINGER, BROWN & SULLIVAN, JJ.).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

In this appeal of the denial of his motion for a new trial, the pro se defendant requests, contrary to settled law, that Melendez–Diaz v. Massachusetts, 129 S.Ct. 2527 (2009) ( Melendez–Diaz I ), be applied retroactively on collateral appeal. We decline to do so.

The defendant was convicted on November 20, 2004, of trafficking in cocaine, G.L.c. 94C, § 32E( b ), distribution of cocaine, subsequent offense, G.L.c. 94C, § 32A( d ), and possession of marijuana, subsequent offense, G.L.c. 94C, § 34. In 2007, this court vacated the distribution of cocaine, subsequent offense conviction while affirming the remaining convictions, see Commonwealth v. Pellot, 68 Mass.App.Ct. 1115 (2007), and further appellate review was denied, 449 Mass. 1105 (2007). The denial of the defendant's motion for a new trial, which is the subject of this appeal, was entered on May 27, 2011.

The Massachusetts Supreme Judicial Court has held that the rule announced in Melendez–Diaz I relating “to the applicability of the confrontation clause to certificates of chemical analysis (drug certificates), is a ‘new’ rule within the meaning of Teague v. Lane, 489 U.S. 288 (1989).” Commonwealth v. Melendez–Diaz, 460 Mass. 238, 240 (2011) ( Melendez–Diaz II ). As such, the rule set forth in Melendez–Diaz I is “not applicable to convictions ... that had become final prior to its issuance.” Commonwealth v. Boria, 460 Mass. 249, 251 (2011). Because the defendant's conviction was final in 2007, ¹ “there was no error in the admission of the drug certificate at the defendant's trial based on the law in effect at the time. See Commonwealth v. Verde, 444 Mass. 279 (2005).” Boria, supra at 251.

Order denying motion for new trial affirmed.

1. A conviction is final ninety days after the Supreme Judicial Court denies review of a direct appeal. See 28 U.S.C. § 2101 ( c ) & ( d ); Commonwealth v. Boria, supra at 250.