of Criminal Procedure. Practice, Criminal, Affidavit,
Sentence. Evidence, Guilty plea.
Bauer (Veronica J. White also present) for the defendant.
P. Kidd, Assistant District Attorney, for the Commonwealth.
sixty days of pleading guilty and being sentenced, the
defendant filed a motion to revise or revoke pursuant to
Mass. R. Crim. P. 29, as appearing in 474 Mass. 1503 (2016).
Accompanying the motion was an affidavit of counsel. Neither
the motion nor the affidavit disclosed the basis for invoking
the rule. More than three years later, the defendant filed a
supplemental motion to revise or revoke. The same judge who
sentenced the defendant denied the motion, and the defendant
appealed. We do not consider the defendant's claims on
appeal because we hold that the motion to revise or revoke
was untimely and not properly before the trial court.
before noon on August 1, 2011, the defendant drove his
parents' Mercedes automobile through the town of
Dartmouth, speeding and tailgating other vehicles. After
hitting a motorcycle, the defendant continued until he also
hit a Toyota Corolla. When his own vehicle became disabled,
the defendant got out of the vehicle and walked away.
Witnesses pointed him out to police, who arrested him. The
operators of the other two vehicles involved were taken to
the hospital. The motorcyclist died within approximately
one-half hour of the collision. On March 18, 2013, the
defendant pleaded guilty to charges stemming from the
incident. Upon disparate sentencing recommendations, the
judge sentenced the defendant to an aggregate of from fifteen
to eighteen years of imprisonment, followed by a two-year
period of probation. On May 7, 2013, the defendant, through
plea counsel, filed a motion to revise or revoke with only an
affidavit of counsel attached. On August 30, 2016, the
defendant, now through appellate counsel, filed a
supplemental motion to revise or revoke, along with
affidavits from both the defendant and appellate counsel, an
expert report, and a memorandum of law. The basis for the
motion was that the defendant received ineffective assistance
of counsel at sentencing, the sentencing judge was not
impartial, and the defendant's sentence was
disproportionate to the crime. In general, he sought to
reduce the committed portion of his sentence by more than
(a) (2) of the Massachusetts Rules of Criminal Procedure
affords defendants an avenue to obtain revision or revocation
of an "[u]njust [s]entence," by filing a motion
within sixty days of sentencing. The rule also requires
that the motion be supported by affidavit. Unlike many
other court filing deadlines, the sixty-day deadline for
filing may not be enlarged. See Mass. R. Crim. P. 46 (b), 378
Mass. 922 (1979) (providing for enlargement of time, except
for motions under rules 25 and 29). See also Commonwealth
v. Callahan, 419 Mass. 306, 308 (1995) (sixty-day time
limit in rule 29 is "absolute and may not be
the defendant here did file a rule 29 motion and affidavit
within the required sixty-day time frame, this was not the
motion on which the judge acted. Nor was it intended to be.
The motion recited no grounds, the affidavit provided no
factual support, and the defendant sought no action from the
court. Thus, the papers filed by the defendant within the
sixty-day deadline served no purpose but to act as a
placeholder for the motion that was actually meant to be
filed and acted on at a later time (here, three years later),
well beyond the sixty-day deadline. The defendant
acknowledges as much, arguing that "[t]his type of
'placeholder' motion under Mass. R. Crim. P. 29(a)
is common in the trial court," and that for this court
to reject it "would be to invalidate said common
not consider the validity of this practice at this point
because the Supreme Judicial Court did so more than fifteen
years ago in Commonwealth v.
DeJesus, 440 Mass. 147 (2003). There, the defendant
filed a rule 29 motion within the sixty-day time frame but
provided no reason why it was filed. Id. at 148-149.
Instead, the motion stated that the defendant relied on the
affidavit to be filed prior to the hearing. Id. at
149. A supporting affidavit and request for hearing were not
filed until eighteen months later. Id. The court
held that the motion that was filed within the sixty-day
deadline was "devoid of any support" and so was
inadequate for purposes of rule 29. Id. at 148.
defendant seeks to distinguish his case from DeJesus
by pointing out that he, unlike the defendant in
DeJesus, did file an affidavit within the required
timeline. Yet, the Supreme Judicial Court did not reject the
defendant's motion simply because it was unaccompanied by
affidavit. Rather, the court held that, "to be properly
filed, a motion to revise or revoke must be accompanied by an
affidavit, or otherwise indicate the grounds on which it
is based" (emphasis added). DeJesus, 440
Mass. at 152. Thus, the court contemplated that the affidavit
would indicate the grounds on which the motion was based.
Indeed, the rule presumes that the affidavit will support the
defendant's position. See Mass. R. Crim. P. 29 (b)
("party shall file and serve . . . affidavit in
support of [his] . . . position"). See also
DeJesus, supra (rule 29 "affidavit . .
. is intended to identify such facts that would warrant the
allowance of the motion").
the defendant's affidavit neither supported his position
nor "indicate[d] the grounds on which [the motion was]
based." DeJesus, 440 Mass. at 152. As a result,
despite being timely filed, the affidavit left the motion
"devoid of any support." Id. at 148. As
in De Jesus, the defendant's filing was
inadequate for purposes of rule 29 and therefore not properly
before the trial court. See id.
entered July 7, 2017, denying motion to revise ...