Opinion
20-P-1069
05-09-2022
COMMONWEALTH v. WILLIAM MONOPOLI.[1]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant claims that a Superior Court judge unlawfully revised and revoked his sentence, and that another judge erred in applying the doctrine of judicial estoppel to preclude him from seeking to vacate that allegedly unlawful sentence. We affirm.
Background.
1. Original guilty plea.
On March 21, 2007, the defendant pleaded guilty to armed robbery while masked, malicious destruction of property, and negligent operation of a motor vehicle. He received a sentence of two to three years in State prison on the malicious destruction count of the indictment followed by concurrent sentences of probation on the armed robbery while masked and negligent operation counts of the indictment.
2. Probation violations and 2014 order.
In 2011 and 2012, following the defendant's release from prison, he violated the terms of his probation. In 2012, due to the violations and new criminal offenses, a judge revoked the defendant's probation and sentenced him to two years in a house of correction. The judge also extended his probation term to ten years on the armed robbery while masked conviction.
In 2014, the defendant was again found in violation of the terms and conditions of probation. On December 15, 2014, a different judge (2014 judge) issued an order (the 2014 order) revoking the defendant's probation and sentencing him to serve six years to six years and one day in State prison (the 2014 sentence).
Also known as William Burnham-Shurtleff.
3. The motion to terminate.
Nearly three years later, on September 15, 2017, the defendant filed a motion captioned "Defendant's Motion to terminate probation and discharge him from sentence" (motion to terminate). The 2014 judge held a hearing on the motion to terminate during which he asked the defendant, inter alia, "What authority do you have for me to revise and revoke a sentence under these circumstances?" In response, the defendant (through defense counsel) distinguished a motion to revise and revoke from a motion to reconsider or "revisit" a probation violation. He stated that unlike a motion to revise and revoke, the motion to terminate involved a "probation violation which is vested in the sound discretion of the Court which I understand can always be revisited if the Court finds that equities--" The defendant further represented that "We're asking the Court to revisit the issue of the violation," and subsequently clarified again that "I don't think we're dealing with [a motion to revise and revoke] in this situation. We're dealing with what -- in the interest of justice what a violation of probation warrant[s]."
The 2014 judge then asked for the Commonwealth's position on the motion to terminate. It is undisputed on appeal that the district attorney's office received notice of the motion to terminate, did not appear at the motion hearing, and did not oppose the motion to terminate. In addition, the 2014 judge asked the probation department whether it had a position on the motion to terminate, to which the probation officer responded, "No, Your Honor, Judicial discretion."
In or around August of 2014, the defendant committed another armed robbery in Montana. On May 30, 2017, he pleaded guilty to that charge and received a suspended sentence in Montana.
At the close of the hearing, the 2014 judge allowed the motion to terminate, ordered that the 2014 sentence "be vacated," and placed the defendant on probation until May 6, 2023, with specified conditions. The 2014 judge endorsed the motion to terminate as follows:
"After hearing, it is ordered that the defendant's sentence of incarceration be vacated. That the defendant shall be on probation until the termination date, and shall abide by the conditions imposed this date."
Consistent with the 2014 judge's order, a Superior Court docket entry dated November 6, 2017, similarly states:
Defense counsel represented to the 2014 judge that the Commonwealth did not take a position on the motion to terminate. The Commonwealth does not dispute, for purposes of appeal, that the motion was unopposed.
"Endorsement on Motion to [Terminate]: Other action taken After hearing, it is ordered that the Defendant's sentence of incarceration be vacated. That the defendant shall be on probation until the termination date, and shall abide by the conditions imposed on this date."
4. Subsequent probation violations and revocation.
In 2018, the defendant again violated the conditions of his probation on multiple occasions. His probation was continued with modified conditions following the first two findings of violation. In May of 2019, following another probation violation by the defendant, a different judge (2019 judge) revoked his probation and sentenced him to a term of eight to fourteen years' incarceration in State prison.
5. Motions to reinstate 2014 sentence and reconsider.
On November 19, 2019, the defendant filed a "Motion to reinstate defendant's sentence" (motion to reinstate), seeking to reinstate the 2014 sentence of six years to six years and one day in State prison that was imposed by the 2014 judge. Reversing both the position he took and representations he made to the 2014 judge during the 2017 proceedings on the motion to terminate, the defendant claimed that the motion to terminate was, in effect, an untimely and illegal motion to revise and revoke under Mass. R. Crim. P. 29, as appearing in 474 Mass. 1503 (2016), and that the remedy for an illegal revision and revocation of a sentence is reinstatement of the original sentence. On November 25, 2019, the 2019 judge denied the motion to reinstate in a margin order. On December 24, 2019, the defendant filed a motion to reconsider the denial of the motion to reinstate. On August 7, 2020, after reconsideration, the 2019 judge issued a comprehensive memorandum of decision and order denying the motion to reinstate. In relevant part, the 2019 judge wrote as follows:
"Given the contrary position that [the defendant] previously took regarding the Motion to Terminate, he is judicially estopped from making this argument..... Each element of judicial estoppel is present in this case. First, the defendant's current position that the court lacked jurisdiction over the Motion to Terminate because it was an untimely motion to revise and revoke is directly inconsistent with his prior position regarding the motion. The Motion to Terminate was explicitly premised on the court's 'judicial power and ability to exercise sound judicial discretion' in crafting a sentence and contained no reference to Mass. R. Crim. P. 29.....At the hearing, defense counsel represented that the court had authority to revisit the [2014 sentence] and specifically distinguished the motion from a motion to revise and revoke
by stating: 'Because unlike a sentence where you have under the statute where you have to file within 60 days to revoke and revise, this is -- it's a probation violation which is vested in the sound discretion of the Court which I understand can always be revisited if the Court finds that equities--' .... Defense counsel further stated, 'I know that on a revoke and revise it's only what wasn't known by the Court at the time of his sentence, but I don't think we're dealing with an R and R in this situation. We're dealing with what -- in the interest of justice what a violation of probation warrant [sic].' .... These representations are directly inconsistent with the defendant's current position regarding the Motion to Terminate. Second, the defendant succeeded in convincing the court to accept his prior position because the court allowed the motion and vacated the [2014 sentence]. Finally, if the court were to now accept his new position, he would receive an unfair benefit in that he was released from incarceration when his [2014 sentence] was vacated and, despite his subsequent misconduct, would be relieved from serving his Current Sentence. Accordingly, judicial estoppel bars the defendant from asserting his new position regarding the Motion to Terminate. His motion to reconsider therefore fails."
The defendant now appeals from the denial of the motion to reconsider.
Discussion.
The defendant contends that the motion to terminate was in substance a motion to revise and revoke filed outside the sixty-day time limit mandated by rule 29 and unaccompanied by a supporting affidavit as required by rule 29. It is black letter law that a motion to revise or revoke a sentence must be filed within sixty days after a sentence is imposed. "This sixty-day time period established in the rule is absolute and may not be extended." Commonwealth v. Callahan, 419 Mass. 306, 308 (1995). See Commonwealth v. DeJesus, 440 Mass. 147, 151 (2003) (rule 29 motion to revise and revoke subject to "jurisdictional requirement that it be filed within sixty days after sentencing," and "judge cannot consider such a motion filed beyond this time frame"); Commonwealth v. Layne, 386 Mass. 291, 295 (1982) (rule 29 [a] "establishes strict jurisdictional time limits for the filing of . . . motions [to revise or revoke a sentence]"). See also McCracken v. Sears, Roebuck & Co., 51 Mass.App.Ct. 184, 188 (2001) ("It is a well-established principle of law that a court cannot acquire subject matter jurisdiction by estoppel"). Cf. Harker v. Holyoke, 390 Mass. 555, 558-561 (1983) (plaintiffs who commenced action in Housing Court and had full and fair trial on merits and chose not to appeal not entitled to relitigate same claims in Superior Court regardless of whether Housing Court had subject matter jurisdiction over controversy). Rule 29 (b) further requires the moving party to file an affidavit in support of the motion so as "to identify such facts that would warrant the allowance of the motion." DeJesus, supra at 152.
A separate docket entry dated November 2, 2017, presumably reflecting the Superior Court clerk's notes, states in relevant part: "Brought into court. Hearing on Defendant Motion to Vacate Sentence held. After hearing, motion allowed. The Court orders sentence revoked and defendant placed on Probation until 05/06/23 with conditions."
Mass. R. Crim. P. 29 (a) (2), provides that:
"The trial judge, upon the judge's own motion, or the written motion of a defendant, filed within sixty days after the imposition of a sentence or within sixty days after issuance of a rescript by an appellate court on direct review, may, upon such terms and conditions as the judge shall order, revise or revoke such sentence if it appears that justice may not have been done."
Based on the above-referenced authorities, the defendant argues: (1) the 2014 judge, however well intended, lacked subject matter jurisdiction to act on the motion to terminate because it was time barred; (2) any action on the belated motion to terminate was void as a matter of law; and (3) the remedy for an illegal revision or revocation of a sentence is reinstatement of the 2014 sentence. Otherwise stated, the defendant, having convinced the 2014 judge that he could lawfully vacate the 2014 order, now insists that the 2014 judge acted unlawfully such that the 2014 sentence must be reimposed.
The Commonwealth responds that the record contradicts the defendant's claim that the motion to terminate was a motion to revise and revoke. Specifically, the title, substance, and arguments in support of the motion to terminate demonstrate that it was what it purported to be: a motion to terminate probation and discharge the defendant from his sentence. In essence, the Commonwealth maintains that the motion to terminate was a late-filed motion to reconsider the 2014 order; that absent any opposition from the Commonwealth the 2014 judge had discretion to allow the motion to terminate; and that the defendant is judicially estopped from arguing that the motion to terminate was an untimely-filed rule 29 motion because he successfully made a directly inconsistent argument to the 2014 judge.
We agree with the Commonwealth that the defendant's prior arguments and representations at the hearing on the motion to terminate weigh against his new and inconsistent claim that he had filed a rule 29 motion. As discussed, through prior counsel, the defendant explicitly disavowed that he was acting pursuant to rule 29, insisted that the motion to terminate sought only to reconsider or "revisit" the probation violation but not the sentence, and assured the 2014 judge that the defendant believed the judge had discretion to reconsider the 2014 order. We also note that the 2014 judge made no mention of rule 29 in his ruling, and neither his endorsement on the motion to terminate nor the corresponding Superior Court docket entries contain any reference to rule 29. See Commonwealth v. MacDonald, 435 Mass. 1005, 1007 (2001) ("Docket entries are prima facie evidence of the facts recorded therein").
Mass. R. Crim. P. 29 (b) provides in relevant part: "If a party files a motion pursuant to this rule, the party shall file and serve, and the other party may file and serve, affidavits in support of their respective positions."
That notwithstanding, we need not resolve the dispute over the substance of the motion to terminate. That is, even assuming that the motion to terminate was, in effect, a rule 29 motion, the defendant's claim is still unavailing. The premise of the defendant's argument is that a sentence, improperly reduced under rule 29 with the assent of the parties, is a nullity. By this logic, the Commonwealth, despite having agreed to the reduction in the defendant's disposition, at any time after 2017 could have demanded that the defendant's probation be vacated and he be returned to prison. Similarly, were we to accept the defendant's argument, then any judge that reviewed the case between 2017 and 2019 had the authority (if not the obligation) to vacate the defendant's probation sua sponte and return him to prison. We disagree with this sweeping proposition. Indeed, the Supreme Judicial Court has rejected related arguments. In the interest of finality, to avoid multiple punishments, "[e]ven an illegal sentence will become final for the purposes of double jeopardy after the expiration of [sixty days], and no longer will be subject to revision or revocation." Commonwealth v. Selavka, 469 Mass. 502, 514 (2014). If the Commonwealth wishes to challenge a reduction in a disposition, it must file a rule 29 motion within sixty days of that decision or a notice of appeal within thirty days. See Commonwealth v. Samuels, 456 Mass. 1025, 1026 (2010). In the present case, the Commonwealth did neither, therefore, sixty days after the 2014 judge vacated the 2014 sentence and imposed probation, that disposition -- illegal as it may have been --became the defendant's valid and binding disposition.
There is no dispute that the defendant represented to the 2014 judge that the motion to terminate was, in effect, a motion to reconsider. Although the defendant asked the 2014 judge to "revisit" the probation violation decision, it was clear from context that "revisit" meant "reconsider."
For the foregoing reasons, the denial of the defendant's motion to reconsider is affirmed.
So ordered.
Neyman, Desmond & Hershfang, JJ.
We note that the defendant does not challenge here the 2019 judge's decision to increase his sentence from six years to six years and one day in State prison to eight to fourteen years in State prison.