Commonwealth v. Tejeda
Commonwealth v. Tejeda
Opinion
**794
The issue before us is whether a judge may allow a defendant's motion to revise and revoke a sentence under Mass. R. Crim. P. 29 (a) (2), as appearing in
After a separate trial before a different judge in April 2015, Etienne received a State prison term of from five to seven years for armed robbery. The defendant subsequently filed a motion to revise and revoke based on the disparity between those sentences. The judge agreed with the defendant and reduced his sentence to match the sentence of Etienne.
2
The Commonwealth appealed, and in an unpublished memorandum and order pursuant to its rule 1:28, the Appeals Court reversed, concluding insofar as relevant here that the judge's decision was improperly based on an event that occurred after the defendant had already been sentenced.
Commonwealth
v.
Tejeda
,
Discussion
. Rule 29 (a) (2) provides that "[t]he 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
**796
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." Although a trial judge's power under rule 29 (a)"to revise or revoke a criminal disposition is severely limited,"
Commonwealth
v.
Goodwin
,
The Commonwealth contends that the judge abused her discretion in allowing the defendant's motion for two reasons. First, the Commonwealth asserts that the defendant's motion was inadequate because it was not accompanied by an affidavit and therefore should have been denied on procedural grounds. See Mass. R. Crim. P. 29 (b) (party who files "motion pursuant to this rule ... shall file and serve" affidavit in support of his or her position). In
DeJesus
,
The Commonwealth further argues that the judge abused her discretion in considering Etienne's sentence because Etienne was tried separately and sentenced after the defendant. Therefore, the Commonwealth asserts, the reduction of the defendant's sentence was erroneously based on facts other than those available at sentencing. Using our superintendence power, we now recognize a limited exception to the requirement that motions to revise and revoke be based solely on facts as they existed at the time of sentencing: a judge may consider a disparate sentence of a coventurer, tried separately and subsequently, who was convicted of the same crime where, at the time of sentencing, it is reasonably **797 apparent that the defendant was less culpable than or equally culpable to his or her yet untried coventurer.
The underlying principles governing rule 29 motions are fairness and justice. In keeping with these principles, our cases emphasizing that facts not in existence at the time of sentencing cannot serve as the basis for an altered sentence have focused on the conduct of the defendant or a denial of parole. See, e.g.,
McCulloch
,
*747
However, in the circumstances of this case, it would be arbitrary to say the judge could have considered the coventurer's sentence if it had been imposed before the defendant's sentence, but find error in her consideration of the sentence solely because it was issued after the defendant's sentence. See
Derry
,
**798 In the circumstances of this case, the judge did not abuse her discretion in considering the coventurer's later-imposed sentence where the coventurer was more culpable and received a more lenient sentence. The allowance of the defendant's motion to revise and revoke his sentence is affirmed.
So ordered .
The defendant also was convicted of possession of a class D controlled substance with intent to distribute, home invasion, and murder in the second degree.
Commonwealth
v.
Tejeda
,
In support of her decision, the judge stated:
"I think it's a fairly straightforward issue. You know, frankly I think there's a real value to treating like cases alike as much as possible. It's hard sometimes to decide if cases are exactly alike. There's differences in criminal records, there's different facts or different levels of involvement. When it comes down to it, however, if I had Mr. Tejeda here and was sentencing him at the same time as Mr. Etienne, if they had been tried together, then I would have imposed the same sentence. So I'm going to allow the motion and reduce the sentence to the sentence that Mr. Etienne received."
It remains within a judge's discretion to consider a defendant's behavior while on probation in determining whether to modify probation conditions.
Goodwin
,
Reference
- Full Case Name
- COMMONWEALTH v. Robinson TEJEDA.
- Cited By
- 4 cases
- Status
- Published