HINES, J.
The narrow question before us, here on a reservation and report from a single justice of the county court, is whether a juvenile who has been convicted of murder in the first degree, and whose conviction has been affirmed by this court after plenary review, is thereafter subject to the gatekeeper provision of G. L. c. 278, § 33E. We conclude that the gatekeeper provision applies. The case should now proceed in the county court as a gatekeeper matter.
Background. The defendant, Steven James, was convicted in 1995 of murder in the first degree on a theory of extreme atrocity or cruelty. He was sentenced to a mandatory term of life without the possibility of parole, pursuant to G. L. c. 265, § 2, as amended through St. 1982, c. 554, § 3. See Commonwealth v. James, 427 Mass. 312, 313, 318 (1998). He was seventeen years old when the killing occurred in 1994, id. at 315, and under the law at that time was considered an adult for purposes of the criminal proceedings. See Watts v. Commonwealth, 468 Mass. 49, 50-51 (2014). On appeal, this court "reviewed the entire record and conclude[d] that relief pursuant to G. L. c. 278, § 33E, [was] not warranted," and affirmed James's conviction. James, supra at 318.
Discussion. As the single justice recognized, James was "tried on an indictment for murder in the first degree and was convicted of murder in the first degree." G. L. c. 278, § 33E. On direct appeal, this court reviewed the whole case, including both the law and the evidence, and affirmed his conviction. See Commonwealth v. Gunter, 459 Mass. 480, 485-487, cert. denied, 565 U.S. 868 (2011); James, 427 Mass. at 318. Irrespective of the subsequent resentencing, after his direct appeal concluded, James continued to stand convicted of murder in the first degree, and remained convicted of a "capital case" for purposes of the statute. See Commonwealth v. Francis, 450 Mass. 132, 137 (2007); Commonwealth v. Gilbert, 447 Mass. 161, 165 (2006). In such a case, the statute plainly and expressly prohibits a subsequent appeal from "any motion" filed in the Superior Court unless authorized by a single justice "on the ground that it presents a new and substantial question." G. L. c. 278, § 33E. See Commonwealth
We recognize that, following the court's decision in Diatchenko, 466 Mass. 655, a juvenile defendant is no longer subject to a sentence of life without the possibility of parole. We left open the question in Commonwealth v. Brown, 474 Mass. 576, 592 n.9 (2016), whether "a juvenile convicted of murder in the first degree is entitled to plenary review under G. L. c. 278, § 33E, and is subject to the gatekeeper provision of that statute; or whether such a defendant is not entitled to plenary review but is entitled to a right of appeal from the denial of all motions for a new trial." This case does not present an occasion to decide that question, however, because this is not James's direct appeal and the single justice did not report that question. James already has had his direct appeal, received plenary review under G. L. c. 278, § 33E,
After receiving the benefit of this "uniquely thorough review," it follows that James is thereafter afforded "a narrower opportunity for appeal of postconviction motions than other criminal defendants." He must comply with the gatekeeper provision. Dickerson v. Attorney Gen., 396 Mass. 740, 744 (1986) ("since we have already reviewed the `whole case' as required by G. L. c. 278, § 33E, the capital defendant justifiably is required to obtain leave of a single justice before being allowed once again
Conclusion. We answer the reported question as follows: the gatekeeper provision of G. L. c. 278, § 33E, applies to a juvenile defendant who, like James, has had a direct appeal, has received plenary review and, following that review, remains convicted of murder in the first degree. The case shall proceed in the county court for consideration of James's gatekeeper application, specifically whether the issues presented in his new trial motion are "new and substantial" for purposes of § 33E. See Gunter, 459 Mass. at 487-488.
So ordered.
Id. See Commonwealth v. Gunter, 459 Mass. 480, 485-487, cert. denied, 565 U.S. 868 (2011).