Opinion
15-P-1460
07-13-2017
COMMONWEALTH v. Marquias BARTEE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On August 4, 2015, after the defendant pleaded guilty to assault and battery on his girl friend (count one), and on her six year old son (count two), a judge of the Dorchester Division of the Boston Municipal Court Department sentenced the defendant on count one to two and one-half years in the house of correction, six months to serve, the balance suspended for three years, and to three years of probation on count two. On August 6, 2015, the defendant filed a motion to revise and revoke pursuant to Mass.R.Crim.P. 29(a), 378 Mass. 899 (1979), requesting that he be permitted to serve his sentence on weekends. See G.L.c. 279, § 6A. The judge stayed the defendant's sentence on the matter until August 17, 2015, and on that date allowed the motion. The Commonwealth claims the judge erred in granting the motion. We agree. Therefore, we vacate the order and reinstate his original (August 4, 2015) sentence.
The Commonwealth filed a notice of appeal from the stay order, a motion to reconsider, and unsuccessfully sought relief pursuant to G.L.c. 211, § 3.
1. Weekend sentence. The Commonwealth claims the defendant does not meet the criteria set out in G.L.c. 279, § 6A, as appearing in St. 1998, c. 463, § 193, to permit him to serve a "special sentence" on weekends. We agree.
General Laws c. 279, § 6A, in pertinent part, states:
"When a person is sentenced on a first offense to imprisonment in a jail or house of correction for a term which does not exceed one year, the court may order the sentence to be served in whole or in part on weekends and legal holidays or such other periodic interval as the court may determine. Such a sentence shall be known as a special sentence of imprisonment. If an offender receives a special sentence of imprisonment under this section, he shall, unless otherwise provided by the sentence of the court, report to the institution to which he has been sentenced no later than 6:00 p.m. on Friday and shall be released at 7:00 a.m. on the succeeding Monday; provided, however, that if the succeeding Monday is a holiday, the offender shall not be released until 7:00 a.m. on Tuesday; and provided further, that the total time served shall be equal to the sentence imposed."
The defendant has a lengthy record including, among others, convictions of armed robbery, assault and battery by means of a dangerous weapon, distribution of a class B controlled substance, and several motor vehicle offenses, and he has served committed sentences. Despite this, the defendant claims that because he has not previously been convicted of an assault and battery charge, the convictions here constitute "first" offenses. We disagree. In support, the defendant analogizes to drug and operating while under the influence statutes that penalize and delineate offenses as first and subsequent offenses. See G.L.c. 94C, § 32, and G.L.c. 90, § 24(1)(a )(1).
As a starting point, we note that neither G.L.c. 265, § 13A, nor G.L.c. 265, § 13J, the crimes to which the defendant pleaded guilty, sets out first or subsequent offenses. In this light, the defendant's analogy fails. Also, because the defendant has previously been incarcerated on prior convictions, he was not "sentenced on a first offense to imprisonment" in this case, as § 6A requires. Finally, the plain language of § 6A creates a "special sentence" for a first-time offender, i.e., a benefit that permits weekend service of a sentence. But that benefit is not sacrosanct. In the third paragraph of § 6A, it is provided that if a defendant serving a "special sentence" commits a subsequent offense (other than a nonmoving motor vehicle offense), the special sentence "shall be rescinded" and the defendant returned to the house of correction for incarceration (emphasis supplied). G.L.c. 279, § 6A, inserted by St. 1977, c. 537. Thus, because the Legislature mandated rescission of a weekend sentence for a first-time offender who reoffends, it is highly doubtful that it also intended a multiple-time prior offender to be eligible for relief under G.L.c. 279, § 6A. See Commonwealth v. Roucoulet, 413 Mass. 647, 652 (1992) ("The maxim that penal statutes are to be strictly construed does not mean that an available and sensible interpretation is to be rejected in favor of a fanciful or perverse one"). As the defendant here had previously been convicted and incarcerated as a prior offender, neither of the defendant's two convictions in this case constituted a first offense, and he was ineligible to serve a weekend sentence. Thus, the judge erred in revising and revoking the original sentence is this manner.
The third paragraph states: "If while serving such a special sentence, such person is convicted of a subsequent crime other than a nonmoving motor vehicle violation, the terms of said special sentence shall be rescinded and said person shall complete the balance of his original sentence consecutively in the jail or house of correction in which he has been serving said special sentence." G.L.c. 279, § 6A, inserted by St. 1977, c. 537.
We further note, for purposes of Mass.R.Crim.P. 29(a), that it is firmly settled that "a judge may not take into account conduct of the defendant that occurs subsequent to the original sentencing" in ruling on a motion to revise or revoke. Commonwealth v. Barclay, 424 Mass. 377, 380 (1997). See Commonwealth v. Layne, 386 Mass. 291, 295 (1982). Here, during the December 16, 2015, resentencing hearing, discussed infra, the judge was presented with facts such as the defendant's completion of the fatherhood program, payment toward past due child support, and success on probation. These events all occurred after the date of the defendant's guilty pleas. See Commonwealth v. Malick, 86 Mass. App. Ct. 174, 185 (2014) ("As a matter of law, the judge possessed no discretion to consider the subsequent conduct").
2. Jurisdiction. After this appeal was entered on the docket of this court (October 28, 2015), the judge held a December 16, 2015, hearing on the Suffolk County sheriff's department's petition pursuant to G.L.c. 279, § 6A, to modify the defendant's sentence. The sheriff argued that the defendant did not qualify for weekend service of his sentence because he had previously been imprisoned on prior convictions. Over the Commonwealth's objection based on the judge's lack of jurisdiction to hear the matter while this appeal was pending, the judge reduced the committed portion of the defendant's sentence to time served. This was error.
As claimed by the Commonwealth, this case is controlled by Commonwealth v. Cronk, 396 Mass. 194, 197 (1985), which states that "[o]nce a party enters an appeal, ... the court issuing the judgment or order from which an appeal was taken is divested of jurisdiction to act on motions to rehear or vacate." Commonwealth v. Montgomery, 53 Mass. App. Ct. 350, 351-352 (2001). See Commonwealth v. Callahan, 419 Mass. 306, 309 (1995) ("An appeal from a sentence is analogous to an appeal from any judgment or order in that, once a party enters an appeal, the judge issuing the order from which an appeal is taken is divested of jurisdiction to act on motions to rehear or to vacate").
Finally, the defendant claims that we are without jurisdiction to hear the Commonwealth's appeal, which he claims should have been brought to a single justice of the Supreme Judicial Court for Suffolk County pursuant to G.L.c. 211, § 3. We disagree.
In Commonwealth v. Richards, 44 Mass. App. Ct. 478, 481-482 (1998), we held that a defendant, without resort to G.L.c. 211, § 3, could appeal from an order denying a motion to revise and revoke directly to this court. We noted that "prior to the adoption of the criminal rules of procedure in 1979, both the Commonwealth and the defendant could obtain appellate review of revision or revocation decisions." Richards, supra at 481. Although the appellate path has been less than clear, see Commonwealth v. Cowan, 422 Mass. 546, 547 (1996), the Rules of Appellate Procedure were not enacted to limit the jurisdiction of this court. See Mass.R.A.P. 1(b), as amended, 421 Mass. 1601 (1995) ("These rules shall not be construed to extend or limit the jurisdiction, as established by law, of the Supreme Judicial Court or the Appeals Court").
In addition, rule 29 has been amended to add a new section, that is, rule 29(e), which states, "An appeal from a final order under this rule may be taken to the Appeals Court, or the Supreme Judicial Court in an appropriate case, by either party." While the Commonwealth's notice of appeal was filed prior to the effective date of the rule change, i.e., prior to September 1, 2016, this appeal was nonetheless pending when the rule went into effect. At this point, with the matter fully briefed and argued, it would not serve judicial economy to insist the Commonwealth pursue a G.L.c. 211, § 3, petition, especially where that avenue is no longer necessary for any other appeal filed on or after September 1, 2016. See Mass.R.Crim.P. 2(a), 378 Mass. 844 (1979) ("These rules are intended to provide for the just determination of every criminal proceeding. They shall be construed to secure simplicity in procedure, fairness in administration, and the elimination of expense and delay"); Reporters' Notes to Rule 2, Mass. Ann. Laws Court Rules, Rules of Criminal Procedure, at 1456 (LexisNexis 2016) ("Where a literal interpretation of a rule and its application in a specific situation would lead to unnecessary expense or delay, would unduly complicate the proceedings, or would operate unfairly or produce an unjust result, that interpretation is to yield to the principle enunciated in Rule 2 [a]").
We reject the defendant's argument that the phrase stating that in an "appropriate case," an appeal may be taken to the Supreme Judicial Court, restates the prior law that appeals from a District Court rule 29 order had to be made pursuant to G.L.c. 211, § 3. The rule neither mentions a single justice, nor does it reference the Supreme Judicial Court for Suffolk County, where such a petition would be filed. Instead, the reference follows exactly the language of Mass.R.Crim.P. 30(c), as appearing in 435 Mass. 1501 (2001), which routes appeals relating to murder in the first degree convictions to the Supreme Judicial Court, where that court has exclusive jurisdiction. Similarly, the language of rule 29(e) appears designed to permit appeals from orders on motions to revise or revoke in cases including a conviction of murder in the first degree to proceed in the Supreme Judicial Court.
The defendant did not move to dismiss this appeal until January 30, 2017, long after the effective date of rule 29(e).
We add one additional thought. The amendment to add rule 29(e) was a procedural or remedial change in the law, at most changing only where an appeal would be heard, thus affecting no substantive right of the defendant, and may be applied retroactively. See Commonwealth v. Bargeron, 402 Mass. 589, 591 (1988) (legislative change to statute of limitations affected no substantive rights of defendant and was properly applied retroactively). See also Commonwealth v. Greenberg, 339 Mass. 557, 578-579 (1959) (where offenses occurred prior to effective date of statutory amendment extending business record exception to criminal cases, amendment related merely to remedy or procedure not affecting substantive rights, and properly applied retroactively).
Accordingly, we vacate the order revising and revoking the defendant's sentence, and reinstate his original (August 4, 2015) sentence. See Commonwealth v. Cowan, 422 Mass. 546, 547, 550 (1996) (appellate court may reinstate original sentence); Commonwealth v. Fenton F., 442 Mass. 31, 42 (2004) (same).
So ordered.
Vacated.