Home COMMONWEALTH vs. JOSEPH STUBBS.

15 Mass. App. Ct. 955

March 3, 1983

The sole question presented on appeal is whether the sentencing judge (the trial judge here) has the power to entertain a motion to revoke or revise sentence filed beyond the sixty-day limit prescribed in Mass.R.Crim.P. 29(a), 378 Mass. 899 (1979), if he finds that the defendant's counsel did not file in a timely manner, as he promised, such a motion. Compare Commonwealth v. Layne, 386 Mass. 291 , 295-296 (1982).

If there is a finding of ineffective assistance of counsel based on counsel's failure to file in a timely manner, as he promised, a motion to revoke or revise sentence, the judge should vacate the sentence and reimpose it, thereby affording the defendant an opportunity to file timely a motion pursuant to Mass.R.Crim.P. 29(a) to revise the new sentence. Cf. United States v. Ackerman, 619 F.2d 285, 287-288 (3d Cir. 1980) (decided under the analogous Fed.R.Crim.P.).

On this record we have no way of knowing whether such a motion was contemplated at the time of sentencing. Nor are we able to discern whether a promise by the lawyer to file such a motion was made at the time of sentencing or made subsequently within the prescribed time limit. Accordingly, the case is remanded to the trial court for findings on the defendant's claim under the Sixth Amendment to the United States Constitution. The judge may hold such evidentiary hearing as he deems necessary and appropriate to a determination of the validity of such a claim. See, e.g., United States v. Sicenavage, 496 F. Supp. 121, 125 (E.D. Pa. 1980). If the judge finds that in the circumstances here presented there was ineffective assistance of counsel, he should vacate the sentence, and order it to be imposed anew.

So ordered.

Home MOISES CAMARA & another vs. MANUEL CAPETO & another (and a companion case).

15 Mass. App. Ct. 955

March 3, 1983

The common judgment entered in both actions is reversed for the reasons that there was no evidence at trial (1) that an easement to use or maintain the sewer line was expressly reserved or granted when the properties in question were severed from common ownership in 1952; (2) that at that time the use or maintenance of the line was strictly (or even reasonably) necessary to the continued enjoyment of what is now the Capeto property; or (3) as to the intentions of the parties to the severance concerning the continued use or maintenance of the line through what is now the Camara property. See Dale v. Bedal, 305 Mass. 102 , 103-104 (1940); Krinsky v. Hoffman, 326 Mass. 683 , 687-689 (1951); Swartz v. Sinnott, 6 Mass. App. Ct. 838 (1978). A new judgment is to be entered dismissing the action numbered 11785; a new judgment is to be entered in the action numbered 11747 which declares that the Capetos

Page 956

have failed to prove any right to use or maintain the sewer line through the Camara property; costs of appeal are not to be awarded to any party in either action.

So ordered.