Opinion
18-P-1299
11-01-2019
COMMONWEALTH v. DUNG VAN TRAN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Dung Van Tran, appeals from the order denying his pro se motion to vacate and reimpose sentence, in which he alleged that he was deprived of effective assistance of counsel due to his counsel's failure to timely file a motion to revise or revoke his sentences pursuant to Mass. R. Crim. P. 29, as appearing in 474 Mass. 1503 (2016). We affirm.
The Commonwealth incorrectly asserts that the defendant did not file a notice of appeal. In the trial court, the charges were maintained on two separate dockets (07-10319 and 08-11022) that were eventually joined for trial. The notice of appeal was timely filed on September 14, 2018, but was only entered on the 08-11022 docket. See Samuels v. SUFA Corp., 38 Mass. App. Ct. 922, 922 (1995) (notice of appeal effectively filed upon receipt by lower court clerk even if not entered on docket).
The defendant was convicted of a number of offenses after he poured and ignited gasoline in the apartment of his estranged wife and their two children. Commonwealth v. Dung Van Tran, 463 Mass. 8, 9 (2012). He was sentenced as follows:
"[F]orty to fifty years in State prison on the indictment charging armed home invasion. Concurrent with that sentence, he received prison sentences of eight to ten years for arson of a dwelling, nine to ten years for aggravated assault and battery on Diana Tran by means of a dangerous weapon, and four to ten years for aggravated assault and battery on Nguyen Trinh by means of a dangerous weapon, as well as concurrent sentences of nineteen to twenty years for armed assault with intent to kill Diana and Trinh. He also was sentenced to ten years' probation at the conclusion of his prison sentences for the assault and battery on Quach by means of a dangerous weapon."
Id. at 10 n.3. On the defendant's direct appeal, transferred sua sponte by the Supreme Judicial Court, the defendant's two convictions of armed assault with intent to murder were set aside and remanded for a new trial, and his remaining convictions were affirmed. Id. at 10. The rescript in the defendant's direct appeal issued on August 24, 2012. Subsequently, the Commonwealth filed nolle prosequis on the two remanded charges.
The nolle prosequis entered on July 17, 2013. In 2017, the defendant moved for new trial contending he was denied his right to counsel when the Commonwealth entered the nolle prosequis. The order denying that motion was affirmed by the Appeals Court. See Commonwealth v. Dung Van Tran, 93 Mass. App. Ct. 1117 (2018).
On August 6, 2018, the defendant filed a motion to vacate and reimpose his sentences for the purpose of timely filing a motion to revise or revoke his sentences pursuant to Mass. R. Crim. P. 29, as appearing in 474 Mass. 1503 (2016). In his motion, the defendant relied on Commonwealth v. Stubbs, 15 Mass. App. Ct. 955, 955 (1983), which provides that, "[i]f there is a finding of ineffective assistance of counsel based on counsel's failure to file in a timely manner, as he promised, a motion to revoke or revise sentence, the judge should vacate the sentence and reimpose it, thereby affording the defendant an opportunity to file timely a motion pursuant to Mass. R. Crim. P. 29 (a) to revise the new sentence." Id. In support of his motion, the defendant submitted his own affidavit in which he averred that he requested his trial counsel and appellate counsel to timely file a motion pursuant to Mass. R. Crim. P. 29, and that each counsel promised or told him they would do so. The motion was not supported by an affidavit of either the defendant's trial or appellate counsel. The motion was endorsed, "Following review, motion DENIED."
We discern no error of law or abuse of discretion in the denial of the motion. The authority to vacate and reimpose a sentence to enable a defendant to file a rule 29 motion arises only when there is determination that there was ineffective assistance of counsel. See Stubbs, 15 Mass. App. Ct. at 955. In determining whether there was ineffective assistance of counsel, "[t]he judge may hold such evidentiary hearing as he deems necessary and appropriate to a determination of the validity of such a claim." Id. "[A] motion judge need not accept statements in the defendant's affidavits as true, even if the statements are undisputed." Commonwealth v. Lys, 481 Mass. 1, 5 (2018). Although not explicitly stated, it is evident from the judge's endorsement that she did not credit the statements in the defendant's affidavit, which, as noted above, was unaccompanied by any affidavit from either trial or appellate counsel. Furthermore, the defendant has not presented facts showing that a timely filed motion to revise and revoke would have accomplished anything. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). An evidentiary hearing was not required.
Although the judge did not make findings of fact, this court may uphold a judge's action "where the record as a whole supported the judge's conclusion." Commonwealth v. Preston, 393 Mass. 318, 322 n.4 (1984).
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Order denying motion to vacate and reimpose sentence affirmed.