This decision has been referenced in an "Appeals Court of Massachusetts Summary Dispositions" table in the North Eastern Reporter. And pursuant to its rule 1:28, As Amended by 73 Mass.App.Ct. 1001 (2009) 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. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 N.4, 881 N.E.2d 792 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In 2007, the defendant pleaded guilty to trafficking in one hundred grams or more of cocaine in a school zone, and was sentenced to ten years to ten years and one day on the trafficking charge and two years on and after for the school zone violation. The defendant, acting pro se, timely filed a motion to revise and revoke his sentence pursuant to Mass.R.Crim.P. 29, 378 Mass. 899 (1979), but the judge declined to act on it. Five years and eight months later, the defendant, now represented by counsel, filed a motion to withdraw his guilty plea and for a new trial, arguing that: (1) his trial counsel's failure to file a motion to dismiss the school zone indictment constituted ineffective assistance; and (2) there was an inadequate factual basis upon which the judge could accept his guilty plea to the school zone charge. The judge below summarily denied this motion, but sua sponte revived the defendant's motion to revise and revoke. Concluding the 2012 Crime Bill, St. 2012, c. 192, applied retroactively to the defendant's trafficking sentence, the judge revised the sentence downward. Both parties have appealed. We vacate the judge's revision of the defendant's sentence, and affirm the judge's denial of the defendant's motion to withdraw his guilty plea.
1. Motion to revise and revoke.
The Commonwealth argues the judge exceeded his authority by allowing the defendant's motion to revise and revoke nearly six years after it was filed. We agree. A judge must consider and decide a motion to revise and revoke within a reasonable time after it is filed. Commonwealth v. Barclay, 424 Mass. 377, 380, 676 N.E.2d 1127 (1997). While there is no fixed time limit, the court in Barclay held that a delay of some six years was unreasonable.
Even assuming, arguendo, that the delay here was not unreasonable, the motion should nonetheless have been denied. " [A] motion to revise or revoke can rely only on facts or circumstances that existed at the time of sentencing." Commonwealth v. DeJesus, 440 Mass. 147, 152, 795 N.E.2d 547 (2003). Here, neither the defendant nor the judge identified any circumstance or fact contemporaneous with the plea that justified revising or revoking the sentence. Moreover, rule 29(b) requires that a defendant file an affidavit indicating the grounds on which the motion is based. Ibid. Although the defendant here submitted an affidavit, it stated nothing more than the requirements of the rule, and failed to " identify such facts that would warrant the allowance of the motion." Ibid. See Holmes v. Spencer, 685 F.3d 51, 54, 61 (1st Cir. 2012) (same).
Finally, the judge erroneously applied the Crime Bill retroactively in this context. " As a general rule of statutory construction, a newly enacted statute is presumptively prospective, and '[t]he repeal of a statute shall not affect any punishment, penalty or forfeiture incurred before the repeal takes effect.'" Commonwealth v. Didas, 471 Mass. 1, 5, 26 N.E.3d 732 (2015), quoting from Commonwealth v. Galvin, 466 Mass. 286, 290, 995 N.E.2d 27 (2013). This presumption is not absolute; retroactive application may be appropriate where the presumption " would involve a construction inconsistent with the manifest intent of the law-making body or repugnant to the context of the same statute . . . ." Commonwealth v. Bradley, 466 Mass. 551, 553, 998 N.E.2d 774 (2013), quoting from G. L. c. 4, § 6. Nothing in the text of the Crime Bill indicates a legislative intent to apply it retroactively to a defendant charged, convicted, and sentenced five years before the statute's effective date. The mere fact that retroactively applying the Crime Bill " might appear to advance an important purpose . . ., by itself, does not necessarily mean that failing to do so is inconsistent with the statute's purpose." Commonwealth v. Didas, supra at 9, citing G. L. c. 4, § 6, Second.
In addition, contrary to the defendant's argument, " the rule of lenity does not come into play when the question to be answered is whether a particular criminal statute should be applied retroactively to a defendant who is charged with committing an offense before that statute went into effect." Commonwealth v. Didas, supra at 10. " This inquiry is governed instead by G. L. c. 4, § 6, Second. Even if this were not the case, '[t]he rule of lenity does not require . . . that absent an ambiguity we construe a penal statute most favorably to a defendant.'" Ibid., quoting from Commonwealth v. Carrion, 431 Mass. 44, 46, 725 N.E.2d 196 (2000).
2. Motion to withdraw guilty plea.
a. Ineffective assistance.
The defendant argues that trial counsel's failure to file a motion to dismiss the school zone charge constituted ineffective assistance and " deprived the defendant of an otherwise available substantial defense." Commonwealth v. Ortiz, 53 Mass.App.Ct. 168, 173, 757 N.E.2d 1113 (2001), citing Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). To determine whether counsel was ineffective, we must determine " whether a motion to dismiss the indictments would have been allowed." Commonwealth v. Ortiz, supra at 173-174.
Here, such a motion would have failed because the evidence presented to the grand jury was sufficient " to establish the identity of the accused . . . and probable cause to arrest him." Commonwealth v. Moran, 453 Mass. 880, 883, 906 N.E.2d 343 (2009), quoting from Commonwealth v. McCarthy, 385 Mass. 160, 163, 430 N.E.2d 1195 (1982). " Probable cause is considerably less than proof beyond a reasonable doubt, so evidence that is insufficient to support a guilty verdict might be more than sufficient to establish probable cause." Commonwealth v. Humberto H., 466 Mass. 562, 565, 998 N.E.2d 1003 (2013).
The Commonwealth presented to the grand jury evidence that the police, acting pursuant to search warrants, seized drugs and drug paraphernalia from the defendant's two apartments and his vehicle. There was also evidence that a city of Brockton public school was located 858 feet from the location of one of the seizures, although it is not clear from which. The evidence was sufficient to establish probable cause to charge the defendant with trafficking cocaine in a school zone. See Commonwealth v.Ilya I., 470 Mass. 625, 627-628, 24 N.E.3d 1048 (2015), quoting from Commonwealth v.Stewart, 469 Mass. 257, 262, 13 N.E.3d 981 (2014) (" [P]robable cause exists where, at the moment of arrest, the facts and ...