Opinion
No. 14–P–1830.
07-05-2016
COMMONWEALTH v. Samuel JEAN–BAPTISTE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a trial in November, 2009, a jury found the defendant guilty on twelve counts related to an armed home invasion of the victims' dwelling. Within ten days of his sentencing, the defendant filed a motion to revise and revoke his sentence, pursuant to Mass.R .Crim.P. 29, 378 Mass. 899 (1979) (first motion) but took no further action while directly appealing the judgment to this court, and later, appealing the denial of his motion for a new trial. On direct appeal, we affirmed eleven of the twelve judgments, but ordered the judgment vacated, the verdict set aside, and the dismissal of the indictment on count 14 (unlawful possession of ammunition), as duplicative of count 13 (unlawful possession of a loaded firearm). See Commonwealth v. Jean–Baptiste, 79 Mass.App.Ct. 1118 (2011). Later, in a separate appeal, this court affirmed the denial of the defendant's motion for a new trial. See Commonwealth v. Jean–Baptiste, 84 Mass.App.Ct. 1109 (2013).
Following the defendant's appeals, the Commonwealth filed its opposition to the rule 29 motion and the judge denied the defendant's motion. Although the defendant then “revived” the rule 29 motion through a “[s]upplemental [a]ffidavit” filed by counsel (revived motion), and later submitted a “[l]ate [f]iling for [m]otion for [r]evise and [r]evoke” pro se (pro se motion), the judge denied both motions and the defendant's subsequent motion to reconsider. On appeal, the defendant claims the judge improperly denied the repeated motions to revise or revoke his sentence, and that he received ineffective assistance of counsel. We affirm.
The “revived” motion contained only the supplemental affidavit, and did not include a new motion to revise and revoke. It appears that the judge considered the first motion, which had its own accompanying affidavit, and supplemental affidavit together on their merits.
The defendant first claims the judge improperly denied his motion where the judge based his sentence on a conviction this court vacated as duplicative of another conviction. We disagree. Although rule 29 permits a judge to reconsider a sentence in the interest of justice, in order to do so, a “motion to revise or revoke must be accompanied by an affidavit, or otherwise indicate the grounds on which it is based.” Commonwealth v. DeJesus, 440 Mass. 147, 152 (2003).
Despite the defendant's endeavors to revise or revoke his sentence, the judge properly concluded that each of the rule 29 motions were without valid support and failed to indicate any proper reason to grant the defendant's requests. The first motion, for example, merely cited “interests of justice” as the basis to revise and revoke, and implored that the judge employ his discretion to alter his sentence. The revived motion also lacked any persuasive argument and merely claimed that, “at the time of sentencing, [the judge] looked at the [d]efendant in a more negative light than he stood” as a result of his one vacated conviction. See ibid. In light of the defendant's alleged grounds to revise and revoke, the judge then properly denied the defendant's first motion and revived motion “after consideration of the argument made and reconsideration of the factors taken into account at the time of sentencing.” Following the defendant's pro se filing, the judge again denied the motion, as “the defendant raise[d] no issue which would cause [the judge] to revoke the sentence given.” As the defendant indeed failed to indicate any valid basis for relief under rule 29 at any point, there was no error. See ibid.
The defendant also claims that he received ineffective assistance based on counsel's first rule 29 motion. We disagree. Where the judge finds ineffective assistance of counsel, based on counsel's failure to timely file a motion to revise and revoke “he should vacate the sentence, and order it to be imposed anew.” Commonwealth v. Stubbs, 15 Mass.App.Ct. 955, 955 (1983). In this instance, however, the defendant's claims of ineffective assistance based on procedural deficiencies in counsel's first motion have no merit where the judge overlooked any potential issues related to the filing and explicitly stated that counsel did file a timely motion. Indeed, the judge addressed the merits of the motions, reconsidered the sentences imposed, and confirmed that the sentences challenged were proper. See Commonwealth v. Coleman, 390 Mass. 797, 805 (1984). To the extent the defendant preserved any remaining arguments claiming ineffective assistance, nothing in the record suggests defense counsel acted “manifestly unreasonable” or that his performance fell measurably below that of a reasonable lawyer. Commonwealth v. Millien, 474 Mass. 417, 430 (2016).
We have carefully considered each of the remaining arguments presented in the defendant's brief. To the extent that any particular claim has not been specifically addressed herein, we have found it to be without merit. See Department of Rev. v. Ryan R., 62 Mass.App.Ct. 380, 389 (2004).
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Orders entered September 4, 2014, and December 29, 2014, affirmed.