Opinion
21-P-772
05-04-2022
COMMONWEALTH v. WAYRA GOMEZ-WIXON.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from an order denying his motion to revise or revoke his sentences, pursuant to Mass. R. Crim. P. 29 (a) (2), as appearing in 474 Mass. 1503 (2016), which was filed more than sixty days after his sentences were imposed. On appeal, the defendant argues that we should extend the holding of Commonwealth v. Tejeda, 481 Mass. 794 (2019), to cover situations (such as this one) where a codefendant is sentenced more than sixty days after the defendant is sentenced. We affirm.
The defendant was sentenced on November 22, 2019, after he pleaded guilty to possession of a large capacity firearm, unlawful possession of ammunition, and defacing a firearm's serial number. The defendant recommended sentences of three years to three years and a day in State prison, as well as six months in the house of correction, to be served concurrently with the prison sentence. The Commonwealth recommended sentences of five to seven years in State prison, followed by three years of probation. The judge sentenced the defendant to four to five years in State prison, followed by three years of probation.
The defendant was sentenced on November 22, 2019, after he pleaded guilty to possession of a large capacity firearm, unlawful possession of ammunition, and defacing a firearm's serial number. Four days later, on November 26, 2019, the defendant filed a motion to revise or revoke his sentences, pursuant to Mass. R. Crim. P. 29 (a) (2), as appearing in 474 Mass. 1503 (2016), but asked "that no immediate action be taken on [the] motion." This first motion can best be characterized as a placeholder motion; it gave no substantive reasons for the relief it sought, other than tracking the language of the rule.
Approximately one year and five months after sentencing, on April 21, 2021, the defendant filed another motion to revise or revoke his sentences, which the Commonwealth opposed. Relying on Tej eda, the defendant asked that his State prison sentence be reduced in light of the fact that his codefendant had recently received a State prison sentence after trial that was shorter than the State prison sentence received by the defendant after entering a plea. The motion judge denied the motion. It is this ruling that is before us now on appeal.
The motion judge also denied the earlier placeholder motion. But that ruling is not before us because the defendant has made no argument concerning the denial of the placeholder motion.
Under Mass. R. Crim P. 29 (a) (2), as it existed when the defendant filed his motion, a defendant could file a written motion within sixty days after the imposition of a sentence, or within sixty days after the issuance of a rescript by an appellate court on direct review, asking the judge to "revise or revoke such sentence if it appears that justice may not have been done." Mass. R. Crim. P. 29 (a) (2), as appearing in 474 Mass. 1503 (2016). "Unlike many other court filing deadlines, the sixty-day deadline for filing [a rule 29 motion] may not be enlarged." Commonwealth v. Coelho, 96 Mass.App.Ct. 901, 902 (2019). The sixty-day deadline for filing a rule 29 motion is strict and inflexible because "[w]ith the passage of time from the date of sentencing, it becomes increasingly difficult for a trial judge to make the determination called for by the rule without impermissibly considering postsentencing events." Commonwealth v. Layne, 386 Mass. 291, 295-296 (1982). The purpose of rule 29 is "to permit a judge to reconsider the sentence he has imposed and determine, in light of the facts as they existed at the time of sentencing, whether the sentence was just." Id. at 295.
Effective April 1, 2022, the rule now also permits a defendant to file a motion to revise or revoke within sixty days of the disposition of criminal charges against a codefendant. See Mass. R. Crim. P. 29 (2) (a), as amended, 489 Mass. 1503 (2022).
In Tejeda, 481 Mass. at 796, the Supreme Judicial Court, using its general superintendence power, recognized "a limited exception to the requirement that motions to revise [or] revoke be based solely on facts as they existed at the time of sentencing." This limited exception permits a judge to "consider a disparate sentence of a coventurer, tried separately and subsequently, who was convicted of the same crime where, at the time of sentencing, it is reasonably apparent that the defendant was less culpable than or equally culpable to his or her yet untried coventurer." Id. at 796-797. In such circumstances, the court said, "it would be arbitrary to say the judge could have considered the coventurer's sentence if it had been imposed before the defendant's sentence, but find error in her consideration of the sentence solely because it was issued after the defendant's sentence," Id. at 797, since a judge may consider a disparity among codefendants' sentences when ruling on a defendant's rule 29 motion where the codefendant has been sentenced at the same time as, or before, the defendant, see Commonwealth v. Perry, 26 Mass.App.Ct. 10, 13 (1988). The defendant in Tejeda raised the issue of disparate sentencing in a timely filed rule 29 motion. Here, by contrast, the issue was not raised until the defendant's second rule 29 motion, which was filed approximately one year and five months after sentencing.
We need not decide whether Tej eda applies to a late-filed rule 29 motion because, even were we to assume that it does, the defendant has not shown that the facts in this case entitle him to Tejeda's holding. More specifically, it is not reasonably apparent that the defendant was less or equally culpable than his codefendant. See Tejeda, 481 Mass. at 797.
On May 20, 2019, after receiving reports of two gunshots in the middle of the night, Mashpee police stopped a black Infiniti in the area in which the shots were reported. The defendant was in the front passenger's seat and his codefendant, Phillip Hicks, Jr., was in the driver's seat. Both men appeared intoxicated. The end of an AR-15-style rifle whose serial number had been defaced jutted out from under the defendant's seat; a large capacity magazine was next to it. A patfrisk led to the discovery of two rounds of ammunition in the defendant's pocket; the ammunition fit the rifle. An inventory search of the car turned up two additional spent rounds of ammunition. Both spent rounds also fit the rifle. The defendant did not have a firearm identification card or a license to carry a weapon.
Here, unlike in Tejeda, the defendant and codefendant were not convicted of the same offenses. Instead, the codefendant was convicted of unlawfully carrying a firearm and operating a vehicle under the influence of intoxicating liquor, while the defendant was convicted of possessing a large capacity firearm, possessing ammunition without a firearm identification card, and defacing a firearm serial number. Indeed, although the codefendant was charged with those same three crimes, he was not found guilty of them.
Furthermore, and unlike in Tejeda, it is not the case here that the defendant was clearly less culpable than his codefendant. The AR-15-style rifle and large capacity magazine were found under the passenger's seat in the car where the defendant was sitting, and ammunition for the rifle was found in his pocket. It is accordingly reasonable to infer that it was the defendant who possessed the weapon and the ammunition and fired the two gunshots that caused residents in the area to call the police in the first place. In short, the defendant has not shown that this is a situation in which like cases have been treated disparately.
Order denying motion to revise or revoke sentences affirmed.
Meade, Wolohojian & Lemire, JJ.
The panelists are listed in order of seniority.