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Commonwealth v. Cooke

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Apr 9, 2012
11-P-209 (Mass. Apr. 9, 2012)

Opinion

11-P-209

04-09-2012

COMMONWEALTH v. RAYMOND COOKE.


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 pro se defendant appeals from the denial of his motion for reconsideration of a motion to revise and revoke his sentence. We affirm the trial court's denial of the motion.

Background. This case has a lengthy procedural history, which we will briefly summarize. On April 3, 2003, a Middlesex County grand jury returned twenty-seven indictments charging the defendant with offenses including aggravated rape, armed assault in a dwelling, assault with intent to murder, and assault and battery by means of a dangerous weapon on a person sixty years or over. On August 22, 2006, the defendant pleaded guilty to all of the indictments.

On December 4, 2006, after a hearing, the judge sentenced the defendant to a term of thirty-five to forty years on the lead indictment, as well as a term of twenty years' probation, from and after the committed sentence, on various other indictments.

On December 11, 2006, the defendant filed a motion to revise and revoke his sentence. He did not request a ruling on the motion at that time. On April 18, 2007, the defendant sought a review of his sentence by the Appellate Division of the Superior Court. On August 9, 2007, the Appellate Division affirmed the sentence. On August 3, 2007, the defendant filed a motion to withdraw his pleas and sought an evidentiary hearing thereon. The motion was denied by the sentencing judge, as was his motion for reconsideration of his motion to withdraw his guilty pleas. On January 9, 2008, the defendant filed another motion to withdraw his guilty pleas. This motion was denied by the sentencing judge. The defendant appealed the sentencing judge's decision, which decision was affirmed by this court on May 21, 2009. See Commonwealth v. Cooke, 74 Mass. App. Ct. 1112 (2009).

On July 9, 2009, the defendant filed yet another motion to withdraw his guilty pleas, which was denied by another judge. This court affirmed the judge's ruling on July 1, 2011. See Commonwealth v. Cooke, 79 Mass. App. Ct. 1128 (2011).

On November 8, 2010, a different judge denied the defendant's December 11, 2006, motion to revise and revoke his sentence, and noted that the defendant had not filed an affidavit with the original motion. On December 17, 2010, the defendant filed a motion for reconsideration of the denial of his motion to revise and revoke his sentence, which motion was denied on January 5, 2011. The defendant now appeals from that denial.

Discussion. A motion to revise or revoke a sentence must be accompanied by an affidavit. See Mass.R.Crim.P. 29(b), as amended, 378 Mass. 943 (1979); Commonwealth v. DeJesus, 440 Mass. 147, 151-152 (2003). Because the December 11, 2006, motion was not accompanied by an affidavit, it was not properly filed. Id. at 152. It was not until September 22, 2009, that the defendant filed a motion to revise and revoke his sentence accompanied by an affidavit. This was well after the sixty-day period set forth in Mass.R.Crim.P. 29(a), 365 Mass. 877 (1974), and the judge correctly denied the motion on that ground.

Moreover, the defendant's sentence was affirmed after review by the Appellate Division, whose decision is final. See G. L. c. 278, § 28B.

The issues raised by the defendant in the present appeal are identical to those considered by this court in Commonwealth v. Cooke, 74 Mass. App. Ct. 1112 (2009). He 'raises no new factual or legal issue' in his current appeal, and 'simply seeks to relitigate' his motion to revise and revoke his sentence. Commonwealth v. Rodriguez, 443 Mass. 707, 710 (2005). In these circumstances, 'principles of direct estoppel operates as a bar' to the defendant's attempt to relitigate the propriety of his sentence. Id. at 711.

Order dated January 5, 2011, denying motion for reconsideration of motion to revise and revoke sentence, affirmed.

By the Court (Sikora, Carhart & Sullivan, JJ.),


Summaries of

Commonwealth v. Cooke

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Apr 9, 2012
11-P-209 (Mass. Apr. 9, 2012)
Case details for

Commonwealth v. Cooke

Case Details

Full title:COMMONWEALTH v. RAYMOND COOKE.

Court:COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

Date published: Apr 9, 2012

Citations

11-P-209 (Mass. Apr. 9, 2012)