Opinion
21-P-603
03-29-2022
COMMONWEALTH v. Steven M. PUTNAM.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Steven Putnam, appeals from an April 26, 2021 Superior Court order that denied his motion to reconsider the judge's denial of his motion to revise or revoke his sentences. On appeal, the defendant argues, among other things, (1) that the judge abused his discretion by denying the defendant's motion to revise or revoke his sentences pursuant to Mass. R. Crim. P. 29, as appearing in 474 Mass. 1503 (2016), and (2) that the defendant was denied effective assistance of counsel with respect to the preparation of a rule 29 motion. We affirm.
The defendant's notice of appeal states that he appeals from an order dated April 27, 2021, but the docket reflects that the order entered on April 26, 2021.
Background. In March of 2006, the defendant was convicted of rape, home invasion, armed assault in a dwelling, and assault and battery. At trial, the victim testified that the defendant knocked on the door to her home and asked to speak with her. After the victim let him in, the defendant grabbed the victim when she tried to make a telephone call, punched her in the face, threatened her with a knife, and digitally penetrated her. The defendant testified that the interaction with the victim was consensual. On March 3, 2006, a judge sentenced the defendant to concurrent terms of imprisonment ranging from eighteen to twenty-five years. On direct appeal, this court affirmed the defendant's convictions, and issued a rescript to the trial court in December of 2009. Commonwealth v. Putnam, 75 Mass. App. Ct. 472, 481 (2009).
The defendant's attorney on direct appeal was not the same attorney who is now the subject of the defendant's ineffective assistance of counsel argument. See Commonwealth v. Putnam, 75 Mass. App. Ct. 472, 472 (2009).
The defendant subsequently filed numerous postconviction motions challenging his convictions, including prior motions to revise and revoke his sentences. E.g., Commonwealth v. Putnam, 481 Mass. 1045 (2019) (regarding G. L. c. 278A relief). Those prior motions are not the subject of this appeal. Rather, in September of 2017, a new attorney was appointed to represent the defendant for purposes of a motion for new trial.
On March 29, 2021, the defendant filed another motion to revise and revoke his sentences, pro se, on the ground that he received ineffective assistance of counsel from his most recently appointed postconviction attorney. Specifically, the defendant claimed that the attorney gave erroneous advice about the procedure for filing motions under rule 29. The judge denied the rule 29 motion as untimely, and, on April 26, 2021, denied the defendant's motion for reconsideration. This appeal followed.
Discussion. The defendant argues that the judge abused his discretion by denying the defendant's March 29, 2021 rule 29 motion to revise or revoke his sentences. We disagree.
Rule 29 (a) (2) allows a judge to revise or revoke a criminal sentence upon the motion of the 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, ... if it appears that justice may not have been done." "A judge cannot consider a motion filed after [the sixty-day] time frame." Commonwealth v. Fenton F., 442 Mass. 31, 36 (2004). As noted, the defendant's rule 29 motion that is the subject of this appeal was filed on March 29, 2021 -- over ten years after this court issued a rescript in 2009 affirming the defendant's convictions on direct review. The judge did not abuse his discretion by denying the motion as untimely.
The defendant argues that pursuant to Commonwealth v. Stubbs, 15 Mass. App. Ct. 955 (1983), the judge could consider the untimely rule 29 motion because the defendant received ineffective assistance of counsel from his postconviction attorney. The procedure set forth in Stubbs, supra at 955, allows a judge, upon "a finding of ineffective assistance of counsel based on counsel's failure to file [a rule 29 motion] in a timely manner, as he promised," to vacate and reimpose a defendant's sentence, restarting the sixty-day period for filing a rule 29 motion. Here, however, the defendant is arguing that he received ineffective assistance from an attorney who was not appointed until seven years after the sixty-day period had elapsed. Postconviction counsel cannot be faulted for failing to file an untimely motion to revise and revoke. Nor was the defendant deprived of a substantial ground of defense, see Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), because, even if postconviction counsel had filed the untimely motion, the judge could not have considered it. See Fenton F., 442 Mass. at 36.
We have carefully considered all the arguments raised in the defendant's brief. To the extent any additional arguments have not been addressed specifically herein, they are without merit. See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
Order denying reconsideration affirmed.