Opinion
13-P-692
11-07-2014
COMMONWEALTH v. LUIS PORTALATIN.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Commonwealth appeals from the allowance of a motion to revise and revoke, see Mass.R.Crim.P 29(a), 378 Mass. 899 (1979). We affirm, albeit on grounds different from those articulated by the judge of the Superior Court.
Background. The defendant, Luis Portalatin, was indicted in 2007 for a series of drug offenses, and then in 2009 for another, more serious pair of drug offenses. He thereafter pleaded guilty to the 2007 indictments -- four charges of distribution in violation of G. L. c. 94C, § 32A(a), and one charge of trafficking in violation of G. L. c. 94C, § 32E(b). Four school zone charges were dismissed. The docket reflects that the defendant received concurrent prison sentences of three years to three years and one day on the distribution convictions, and a concurrent prison sentence of five years to five years and one day on the trafficking conviction. However, the mittimus on the trafficking conviction stated the sentence was three years to three years and one day. The defendant also pleaded guilty at the same time before the same judge to the two 2009 offenses; the minimum mandatory sentence on the greater charge was seven years. He received concurrent prison sentences of seven to fifteen years, which the judge made concurrent with the sentences on the 2007 offenses.
The defendant filed a timely motion to revise and revoke his sentences within sixty days of the pleas, together with an affidavit of counsel stating that there were other considerations the judge should have taken into account. He did not raise the discrepancy between the 2007 docket and the mittimus in the motion.
The motion was not heard for three years. The matter was brought forward when a second judge, in the course of hearing the defendant's motion to withdraw his plea to the 2009 indictments, noted that a stay of those sentences would not result in the defendant's release because of the five-year sentence on the 2007 trafficking charge. The hearing on the 2009 plea withdrawal was continued until the status of the 2007 trafficking sentence could be resolved. The defendant then brought forward the motion to revise and revoke as to the 2007 sentences, claiming that he had been unaware that he was sentenced to a five-year term on the trafficking charge.
That motion was predicated on the wrongdoing of State laboratory chemist Annie Dookhan. See Commonwealth v. Scott, 467 Mass. 336 (2014).
The motion was heard by the original plea judge. Defense counsel represented at the motion hearing that he first learned that his client was sentenced to five rather than three years of incarceration on the trafficking charge during the course of the hearing on the motion to withdraw the plea to the 2009 charges. Based on its file notes, the Commonwealth represented that it had asked for five years and got five years, and that it had requested the five-year sentence in exchange for dropping the school zone counts. The judge stated that her notes reflected that she was initially confused about the weight of the drugs involved in the 2007 trafficking charge, and sentenced the defendant to five years to five years and one day in the belief that this was the applicable minimum mandatory sentence. Defense counsel took the position that the judge had changed the sentence to three years to three years and one day at sentencing. However, the docket reflects a sentence of five years to five years and one day.
The parties represent that there is no extant transcript of the plea hearing due to a malfunction of the recording equipment.
The motion prosecutor was not the prosecutor present at the time of the plea and sentencing.
The judge's notes showed that she had crossed out the higher weight, to which a five-year minimum sentence would have applied, and left in the smaller and correct weight, to which a three-year minimum sentence would have applied.
The judge stated that it would have been her practice to impose a sentence of three years to three years and one day on all counts once the correct, lower weight of the drugs was brought to her attention. The judge made no findings as to what she said on the record at the plea hearing. However, she observed that it was the clerk's practice to do the paperwork as she spoke at hearing, that there was confusion based on her misunderstanding of the weight of the drugs at issue, that the confusion at hearing was reflected in the discrepancy between the docket and the mittimus, and that the five-year sentence "was not an intentional sentence on my part." She further stated, however, that the docket had not been corrected because, given the seven-year mandatory minimum sentence on the 2009 indictments, it "didn't seem to matter." The judge then allowed the motion to revise and revoke, and the sentence on the 2007 trafficking charge was reduced to three years to three years and one day.
In allowing the motion the docket also states that the mittimus originally issued incorrectly as "M.C.I. Cedar Junction - Max: three (3) years and one (1) day - Min: three (3) years," but that the mittimus was now correct as of the hearing on the motion to revise and revoke. This docket entry stating that the original mittimus was incorrect forecloses treating the five-year sentence on the docket as a clerical error subject to correction pursuant to Mass.R.Crim.P. 42, 378 Mass. 919 (1979).
Rule 29(a). The Commonwealth argues that the judge lacked jurisdiction to hear the motion pursuant to rule 29(a) due to (1) the three-year lapse between the filing of the motion and the hearing, (2) the vagueness of the affidavit, and (3) the inclusion of additional grounds for relief after the passage of the sixty-day period of rule 29(a). Alternatively, the Commonwealth asserts that the passage of time was unreasonable, and that the judge improperly considered postsentencing events in allowing the motion.
Both an affidavit and a motion must be filed within the sixty-day period to meet the jurisdictional requirements of rule 29(a). Commonwealth v. DeJesus, 440 Mass. 147, 151-152 (2003). Both were filed timely here. Although the rule "establishes strict jurisdictional time limits for the filing of such motions," Commonwealth v. Layne, 386 Mass. 291, 295 (1982), neither the rule nor the cases "define a particular time frame in which a motion to revise or revoke must be considered once it is filed," Commonwealth v. Barclay, 424 Mass. 377, 381 (1997). Instead the motion must be considered "within a reasonable time" of filing. Id. at 380. Whether unreasonable delay in hearing a rule 29(a) motion rises to the level of jurisdictional defect is a question that has been reserved. See Commonwealth v. DeJesus, supra at 151.
In light of our disposition, we need not determine whether the motion was heard within a time that was reasonable. In general, the cases have disapproved of permitting rule 29(a) motions to languish unheard, because the delay in hearing the motion increases the likelihood that extraneous factors other than those existing at the time of sentencing will influence consideration of the motion. See Commonwealth v. DeJesus, 440 Mass. at 152. See also Commonwealth v. Layne, 386 Mass. at 295-296. Here the motion was not heard for close to three years after the date it was filed. No appellate decision has yet held such a period to be unreasonable under rule 29(a). Cf. id. at 296 (nine years unreasonable); Commonwealth v. Barclay, 424 Mass. at 380 (six years unreasonable). In the unique circumstances presented by this case, the claim was made, and appears to have been credited by the judge, that the rule 29(a) motion was brought forward immediately upon learning of the discrepancy between the docket and the mittimus, a consideration that would be one factor in assessing whether the motion was heard in a reasonable amount of time. See id. at 380-381 (factors beyond the defendant's control may be taken into account in determining the reasonableness of the delay). Moreover, the judge did not take into consideration postsentencing conduct on the part of the defendant. Rather, she addressed with specificity the events occurring at the time of sentencing, and based her decision squarely upon her intent at the time of sentencing. The motion to withdraw the plea to the 2009 indictments brought the matter to the attention of the parties, but that fact does not mean that the judge improperly considered postsentencing events. See generally Commonwealth v. Jackson, 80 Mass. App. Ct. 528, 533-534 (2011).
We similarly decline to reach the question here, because given the unique facts of this case, we conclude that the motion is one more properly considered under Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). The defendant here represented to two different judges that he did not know until well after the passage of sixty days from the date of the pleas that he was sentenced to a five-year term rather than a three- year term. Even if we assume that the jurisdictional requirements were satisfied by the filing of an affidavit and motion within the sixty-day period in rule 29(a), where the defendant is unaware of the facts regarding an error in sentencing until after the passage of the sixty-day period, the availability of relief from a sentence that fails to conform to the judge's original intent should not turn on the serendipity of the pendency of a rule 29(a) motion.
At oral argument, both sides acknowledged that a motion to correct the sentence might have been filed. Defense counsel stated he did not do so because his client was incarcerated and he did not want to incur any further delay. The Commonwealth stated that such a motion could be filed, but did not concede that relief would be appropriate.
Rule 30. In the interest of judicial economy, we therefore consider rule 30, which contains no time limit. See Commonwealth v. Guerro, 14 Mass. App. Ct. 743, 745 (1982) ("[I]n the hope of ending further postconviction proceedings in this case, we treat the motion as one under [rule] 30[a] . . . , which has no time limit"); Dunbrack v. Commonwealth, 398 Mass. 502, 504 (1986) (rule 30[b] motion for new trial is the "appropriate method for attacking the lawfulness of the admission to sufficient facts and the sentence imposed").
This case does not neatly fit into the rule 30(a) framework under which motions to correct a sentence are typically brought. See, e.g., Commonwealth v. White, 436 Mass. 340, 345 (2002); Commonwealth v. Cumming, 466 Mass. 467, 471 (2013). A fair reading of the judge's candid description of what transpired is that she imposed a sentence of five years based on a misapprehension of the offense charged, and that her initial misunderstanding of the mandatory minimum sentence resulted in a greater sentence than she intended. A sentence "premised upon a major misunderstanding by the sentencing judge as to the legal bounds of the judge's authority" is an illegal sentence for which there is relief under rule 30(a). Reporter's Notes to Mass.R.Crim.P. 30(a), 47 Mass. Gen. Laws Ann., at 755 (West 2006). See Commonwealth v. White, supra. However, the judge's comments further reveal that she was no longer under that misapprehension at the time the sentence entered on the docket. The sentence given was in excess of the mandatory minimum, but was not illegal on its face.
Nonetheless, where a harsher sentence than a judge intended has been unintentionally imposed, due process requires that some remedy be available to a defendant. The appropriate avenue of relief in this case is rule 30(b). "'A sentencing judge has flexibility to respond appropriately' where [s]he discovers an error in the defendant's initial sentence." Commonwealth v. Selavaka, 469 Mass. 502, 507 (2014), quoting from Dunbrack v. Commonwealth, 398 Mass. at 506. In Dunbrack, the petitioner sought to enforce a sentencing agreement. 398 Mass. at 502. Dunbrack was sentenced as a first offender after admitting to sufficient facts to the offense of operating a motor vehicle while under the influence of intoxicating liquor. Id. at 503. After he was sentenced an error was found in his probation report, and the judge imposed those sanctions applicable to a second offender, sanctions which varied from the term of his sentencing agreement. Id. at 503-504. The Supreme Judicial Court rejected Dunbrack's application for extraordinary relief under G. L. c. 211, § 3, on the ground that he could challenge his admission to sufficient facts and sentence by means of a motion for new trial under rule 30(b). Id. at 505. We conclude here, as the Supreme Judicial Court did in Dunbrack, that the sentencing judge had the discretion to correct an error in sentencing brought to her attention by the defendant, pursuant to rule 30(b). The judge clearly decided that justice may not have been done, and she did not abuse her discretion in concluding that a reduction of sentence to conform to her actual intent in sentencing was warranted.
Order allowing reduction of sentence affirmed.
By the Court (Trainor, Rubin & Sullivan, JJ.), Clerk Entered: November 7, 2014.