Opinion
11-P-882
03-12-2012
COMMONWEALTH v. RICHARD C. TAYLOR.
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
On June 6, 2008, the defendant pleaded guilty to eight felony charges relating to his having stabbed a police officer in the chest (including armed assault with intent to murder, G. L. c. 265, § 18[b]). He was sentenced that day. Over two years later, the defendant, acting pro se, sought to revise and revoke his sentence. His asserted grounds were his mental illness at the time of the crime, postsentencing deaths and illnesses in his family, and his having taken responsibility for, and having felt remorse for, his crime. Aware that the motion was untimely, the defendant argued that he should be allowed to file it late because his attorney had promised to file such a motion but never did so. He supported that claim only with his own affidavit. Citing to Commonwealth v. Stubbs, 15 Mass. App. Ct. 955 (1983), the same Superior Court judge who had sentenced him allowed the defendant's motion to vacate and reimpose the original sentence so as to allow him to file a motion to revise and revoke that sentence. On September 20, 2010, the judge denied the defendant's motion to revise and revoke on the merits. On December 15, 2010, the defendant filed a motion for reconsideration, which was denied on January 7, 2011. The defendant now seeks to appeal the denial of both his motion to revise and revoke and his motion for reconsideration.
The defendant did not file a notice of appeal within thirty days of the denial of his motion to revise and revoke, see Mass.R.A.P. 4(b), as amended, 431 Mass. 1601 (2000), his motion for reconsideration was itself delayed, and his eventual notice of appeal was also not filed in a timely manner. However, there is a suggestion on the docket that the defendant, who was incarcerated at the time, may not have received timely notice of the denial of his motion to revise and revoke, and the judge allowed a motion to file a late notice of appeal (thereby curing some of the untimeliness). Given that the appeal fails for other reasons, we do not reach the question of whether the appeal was timely and otherwise perfected.
A motion to revise and revoke must be filed within sixty days of sentencing. Mass.R.Crim.P. 29(a), 378 Mass. 899 (1979). This time limit is strictly interpreted and cannot be extended. Commonwealth v. Fenton F., 442 Mass. 31, 41-42 (2004). Although a judge can vacate a sentence and reimpose it when he has found that counsel was ineffective for failing to file a timely motion, see Commonwealth v. Stubbs, supra, the judge made no such finding here. Nor has the defendant shown his entitlement to such a finding. To be sure, the judge appears to have credited the defendant's affidavit regarding the promises that he claimed counsel had made, and this perhaps could be taken as an implicit finding that the lawyer's conduct fell measurably below that of an ordinary fallible lawyer. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). But to demonstrate ineffective assistance, the defendant also would have to had shown that counsel's failing 'likely deprived [him] of an otherwise available, substantial ground of defence.' Ibid. The defendant did not, and cannot, make such a showing here.
We note that the docket does not actually reflect that the original sentence was in fact vacated and reimposed.
A motion to revise and revoke must be based on 'facts as they existed at the time of sentencing.' Commonwealth v. DeJesus, 440 Mass. 147, 152 (2003), quoting from Commonwealth v. Layne, 386 Mass. 291, 295 (1982). The deaths and illnesses in his family occurred after sentencing. Although his argument based on mental illness would not be disqualified on this basis, the record reveals that the relevant facts were brought before the judge at the time of sentencing. Because the defendant cannot show that any claimed error by counsel deprived him of a substantial ground of defense, there was no basis for the judge to consider the late-filed motion to revise and revoke (and the related motion for reconsideration).
The same is true of the timing of the defendant's having 'taken responsibility' for the crime by pleading guilty. It is not clear on the current record the extent to which the defendant expressed his asserted remorse for the crime at the time of sentencing, but he certainly had the opportunity to do so, and any unexpressed remorse that he felt at that time would not constitute substantial grounds for a motion to revise and revoke.
For the same reasons, his appeal would fail on the merits. The defendant has not made out any claim that the judge abused his discretion in denying the motion to revise and revoke, or the motion for reconsideration.
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Order denying motion to revise and revoke affirmed.
Order denying motion for reconsideration affirmed.
By the Court (Grasso, Kafker & Milkey, JJ.),