COMMONWEALTH vs. FENTON F., a juvenile. [Note 1]

IRELAND, J. Pursuant to a 1993 plea agreement, the defendant pleaded delinquent by reason of murder in the first degree, armed robbery, and possession of a firearm without a license. The defendant was sentenced to from fifteen to twenty years,

Page 32

pursuant to G. L. c. 119, § 72, as amended through St. 1992, c. 398, § 4, twenty years being the maximum under the statute. [Note 2] After a hearing conducted in 2003, almost ten years after the plea agreement and sentencing, the judge granted the defendant's motion to revise or revoke his sentence. The judge entertained this belated motion to revise or revoke on the theory that ineffective assistance of counsel created an exception to the sixty-day limit set forth in Mass. R. Crim. P. 29, 378 Mass. 899 (1979). See Commonwealth v. Stubbs, 15 Mass. App. Ct. 955 (1983). He vacated the defendant's sentence and resentenced him to from fifteen years to fifteen years and one day. The Commonwealth filed a petition pursuant to G. L. c. 211, § 3, in the county court, and a single justice reported the case to the full court. Because we conclude that, in the circumstances of this case, there was no ineffective assistance of counsel, the sixty-day limit prescribed by rule 29 for filing a motion to revise or revoke, therefore, still applies. Accordingly, we vacate the allowance of the defendant's motion to revise or revoke his sentence, vacate the judge's order resentencing the defendant, and reimpose the defendant's original sentence. [Note 3]

Facts and Procedural History.

We recite the relevant facts (which are not in dispute) and the lengthy procedural history pertaining to the motion to revise or revoke. In March, 1993, the defendant, then sixteen years of age, and George Davis, Jr., talked about robbing someone. The defendant was carrying a .32 caliber automatic pistol, and had been drinking alcohol and using marijuana. Finding no one on the street to rob, the pair hailed a taxicab and asked the driver

Page 33

to take them to a street that would afford them a quick escape. Once there, the pair proceeded to rob the driver. In the course of the robbery, the defendant went to the driver's side window, took out the gun, and shot the taxicab driver in the shoulder. The victim, a native of Haiti who had a wife and two children, died from the wound a short time later.

The defendant's counsel negotiated a plea agreement with the Commonwealth in 1993. In exchange for his plea of delinquency and agreement to the "maximum" sentence, [Note 4] the Commonwealth stipulated to the defendant's amenability to treatment and agreed not to pursue its motion to have the case transferred to the Superior Court, pursuant to G. L. c. 119, § 61. [Note 5] If the judge had granted the Commonwealth's motion to transfer the case, the defendant would have been tried as an adult and, if convicted, faced life in prison without the possibility of parole. The judge concurred with the Commonwealth regarding the defendant's amenability to treatment, accepted the plea, and retained the defendant as a juvenile.

A few weeks after sentencing and within the sixty-day limit, the defendant contacted his attorney and asked whether there was something that could be done to reduce his sentence. The attorney told the defendant that "as a practical matter" there was nothing further that could be done, as he had just agreed to the plea bargain. [Note 6] The attorney did not inform the defendant about the availability of a motion to revise or revoke. The attorney

Page 34

also did not inform the defendant that he could find another attorney or that he could ask the court to appoint an attorney, to pursue such a motion.

In 1997, at twenty-one years of age, the defendant was transferred from the Department of Youth Services to an adult facility to serve out the remainder of his sentence. It was after the transfer that he learned of the availability of a motion to revise or revoke sentence. He did research in the prison library and, in January, 2000, filed a pro se motion for leave to file a late motion to revise or revoke his sentence, along with a supporting affidavit and a motion for court-appointed counsel. In the affidavit, the defendant stated that, in 1993, his attorney had told him that nothing could be done about his sentence and never informed him about the possibility of a motion to revise or revoke. The defendant also stated that he never intended to kill the victim. [Note 7]

The judge appointed counsel for the defendant. On April 26, 2001, now represented by counsel, the defendant filed a motion to vacate and reimpose his sentence (based on ineffective assistance

Page 35

of counsel), and asked for leave to withdraw his pro se motion and to file a motion to revise or revoke his sentence. In the new motion to revise or revoke, the defendant asked the judge to sentence him to from fifteen years to fifteen years and one day. Defense counsel filed two affidavits in support of the defendant's motions, one in 2000, and the other in 2001.

On August 16, 2001, the judge denied the defendant's motions on the ground that, under the language of the statute, he had no sentencing discretion and had to sentence the defendant to a maximum of twenty years. In September, 2001, the defendant filed a motion for reconsideration, asking that the judge report the question of discretionary sentencing to the Appeals Court, which he did. On January 8, 2003, the Appeals Court dismissed the report, holding that, at the time of the indictments, a Juvenile Court judge did not have the authority to report a question to the Appeals Court under Mass. R. Crim. P. 34, 378 Mass. 905 (1979), or otherwise. The Appeals Court did not consider the ineffective assistance of counsel issue, calling it "premature." Commonwealth v. Fenton F., 57 Mass. App. Ct. 903, 904 (2003).

On January 15, 2003, the defendant filed a second motion for reconsideration and for an evidentiary hearing on his motion to revise or revoke. The judge allowed the motion and an evidentiary hearing was held in March, 2003. At the evidentiary hearing, defense counsel stated that he had an "imperfect recollection" but believed that at the time of the plea, he thought the statute required a sentence of from fifteen to twenty years.

On June 4, 2003, the judge granted the defendant's motion based on ineffective assistance of counsel, and resentenced the defendant to from fifteen years to fifteen years and one day. He noted that the Commonwealth conceded that, at the time of the plea, he could have sentenced the defendant to something less than twenty years. He found that neither attorney understood sentencing under the statute. He also stated that, had he known he had the discretion, he would have sentenced the defendant to less than the maximum, as that was his wish at the plea hearing. [Note 8] The judge's determination of ineffective assistance of counsel

Page 36

had two bases: (1) defense counsel's failure to inform the defendant that he had the right to file a motion to revise or revoke, even after the defendant asked him whether something could be done about his sentence, and (2) defense counsel's failure to advise the court of the option of imposing less than the twenty-year maximum. The Commonwealth then petitioned the single justice pursuant to G. L. c. 211, § 3, which was reported to the full court. [Note 9]

Discussion.

The parties present extensive argument on the multitude of substantive and procedural issues that emerge from this protracted case history. For purposes of resolving the present petition, we need only address one issue, as we conclude that no ineffective assistance of counsel has been shown on this record. In addressing the merits of that central claim, we express no opinion as to any of the Commonwealth's arguments to the effect that the petition could be granted on any one of many grounds.

1. Mass. R. Crim. P. 29. "It is well settled that rule 29 (a) 'establishes strict jurisdictional time limits for the filing of . . . motions [to revise or revoke a sentence].' " Commonwealth v. DeJesus, 440 Mass. 147, 150-151 (2003), quoting Commonwealth v. Layne, 386 Mass. 291, 295 (1982). See Commonwealth v. DeJesus, supra at 152 (defendant must file affidavit or "otherwise indicate the grounds on which [motion to revise or revoke] is based"). A motion to revise or revoke a sentence must be filed within sixty days after a sentence is imposed and a judge cannot consider a motion filed after this time frame. Id. at 151- 152, and cases cited. See Commonwealth v. Amirault, 415 Mass. 112, 117 (1993), and cases cited (rule 29 review limited to facts as they existed at time of sentencing; "judiciary may not act as super-parole board").

Page 37

However, in Commonwealth v. Stubbs, 15 Mass. App. Ct. 955 (1983), the defendant filed a motion to revise or revoke after the sixty-day time limit, claiming his attorney promised to file the motion, but failed to do so in a timely manner. The record did not show "whether such a motion was contemplated at the time of sentencing [or] whether a promise . . . was made at the time of sentencing or made subsequently within the prescribed time limit." Id. The Appeals Court, relying on United States v. Ackerman, 619 F.2d 285, 287-288 (3d Cir. 1980), remanded the case for findings concerning whether there was ineffective assistance of counsel. Commonwealth v. Stubbs, supra. In the Ackerman case, the court stated that if there was no justification for an attorney's failure to file a motion to correct or reduce the defendant's sentence and there was a finding of ineffective assistance of counsel, the proper procedure would be for the court to vacate the sentence and reimpose it, thereby affording the defendant an opportunity to file a motion to revise or revoke (under analogous Fed. R. Crim. P. 35). United States v. Ackerman, supra. Cf. Commonwealth v. McNulty, 42 Mass. App. Ct. 955, 956-957 (1997) (where claim of ineffective assistance of counsel on untimely rule 29 motion deemed waived, court need not address Stubbs exception). [Note 10]

2. Ineffective assistance of counsel. In order to prevail on a claim of ineffective assistance of counsel, the defendant bears the burden of proving that the behavior of counsel fell below that of an ordinary, fallible lawyer and that such failing "likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). See Roe v. Flores-Ortega, 528 U.S. 470, 476-477 (2000) (in context of failure timely to file notice of appeal, ineffective assistance of counsel test established by Strickland v. Washington, 466 U.S. 668 [1984], applies). Here, defense counsel's behavior was not substandard, and we need not address whether that behavior prejudiced the defendant in any manner. In addition, our inquiry into defense counsel's behavior

Page 38

must focus on the point in time when he gave the defendant advice about whether anything could be done to reduce his sentence, not on facts that only emerged at some later point. See Strickland v. Washington, supra at 689 (in assessing attorney performance at trial, "every effort [must] be made to eliminate the distorting effects of hindsight . . . and to evaluate the conduct from counsel's perspective at the time"). See generally Commonwealth v. Comita, 441 Mass. 86, 89-90, 93 n.11, 94 (2004) (where ineffective assistance of counsel claimed after five years, "it is difficult to reconstruct" specific information on which trial counsel made assessments concerning motion to suppress).

As discussed, the defense counsel negotiated a plea agreement with the Commonwealth [Note 11] that saved the defendant from the possibility of the far worse fate of life in prison without the possibility of parole. The defendant pleaded delinquent by reason of murder in the first degree and the other charges and agreed to the "maximum" sentence under G. L. c. 119, § 72, in exchange for the Commonwealth's stipulating to his amenability to treatment and agreeing not to pursue a hearing to transfer the defendant to Superior Court for trial as an adult. The defendant's sentence as negotiated included the statutory minimum of fifteen years, as well as the statutory maximum of twenty years. See note 4, supra.

The judge found that counsel was ineffective for failing to appreciate, and for failing to inform the judge, that the upper end of the defendant's sentence did not have to be the statutory maximum of twenty years. He thus posits that there was a viable ground for a motion to revise or revoke that counsel should not have overlooked. The judge's conclusion that defense counsel did not understand that the judge had discretion in the matter is based on defense counsel's testimony at the evidentiary hearing (almost ten years after the plea hearing). We first note that the statute then in effect is clear on its face as to what

Page 39

the maximum was: "[A] child who has passed his fourteenth birthday . . . shall be committed to a maximum confinement of twenty years." G. L. c. 119, § 72. [Note 12] It is also clear that fifteen years is a statutory minimum -- "but in no case shall the confinement be for less than fifteen years . . . ." Id. Moreover, there is evidence in the record that the defense attorney did understand the sentencing options under the statute. In his 2000 affidavit, he states "[under the plea agreement] the defendant agreed to plead guilty to first degree murder in the Juvenile Court carrying a 15-year mandatory minimum sentence." His 2001 affidavit states, "Had the 15-20 years agreement not been in place, I would have argued for a lesser sentence" (emphasis added). [Note 13]

When the defendant contacted his attorney after the plea and sentencing and asked whether there was anything he could do about his sentence, it was not ineffective assistance of counsel for the attorney to correctly state that, "as a practical matter" there was nothing he could do. The observation that the defendant would be "stuck" with the bargain he had made was, "as a practical matter," an accurate assessment of the situation. The defense attorney testified that he did not know at the time of any ground on which he could bring a motion to revise or revoke. One cannot file a motion to revise or revoke without stating the grounds on which it is based. Commonwealth v. DeJesus, 440 Mass. 147, 152 (2003).

Page 40

The theory of ineffectiveness now hinges on the assumption that there was a potentially meritorious ground for such a motion, namely, the judge's mistaken belief that his sentencing discretion was constrained. The fact that the judge stated, some ten years after sentencing, that he misapprehended the statute does not render the attorney's actions ineffective assistance of counsel. Assuming that the judge's memory is correct and that he did misapprehend the statute, defense counsel had no way of knowing of such misapprehension at the time the defendant inquired whether anything could be done about his sentence. Therefore, defense counsel's assessment that he had no grounds for the revise or revoke motion was, at the time, correct. By his own admission, the defense attorney's current view about what he should have done came only with the "wonderful clarity of hindsight," [Note 14] which included knowledge that the judge believed he did not understand that he may have had discretion under the statute. Such knowledge did not exist at the time he advised the defendant. In any event, such knowledge would be irrelevant. The driving force behind the agreement was the fact that the plea bargain was extremely advantageous to the defendant, who avoided being tried in the Superior Court where he would have faced the possibility of life without parole.

Moreover, if defense counsel had argued to the judge that he had discretion under the statute to sentence to less than twenty years or otherwise suggested that the judge impose some sentence less than that to which the defendant agreed, he would have jeopardized the very plea agreement he negotiated on behalf of the defendant. The Commonwealth undoubtedly would have objected to any such argument by defense counsel and stated that the "maximum" with a sentence of from fifteen to twenty years was the deal. Defense counsel, in fact, made this point in his 2001 affidavit when he stated, "Had the 15-20 years agreement not been in place, I would have argued for a lesser sentence."

There is no evidence of ineffectiveness in counsel's recommending that the defendant accept the Commonwealth's plea;

Page 41

there is nothing in the record of the plea hearing to indicate that the judge was not satisfied with or had reservations about the plea [Note 15]; defense counsel did not mislead the judge about the statute; and the sentence was not an illegal sentence. The defendant pleaded delinquent pursuant to an agreement with the prosecution that the Commonwealth would give up its right to a transfer hearing in exchange for the defendant's agreeing to a "maximum" sentence of from fifteen to twenty years. Counsel's assessment and recommendation that "as a practical matter," nothing could be done to reduce the defendant's sentence to something below that to which he had agreed, did not fall below the standard of an ordinary, fallible lawyer. To the contrary, based on everything that counsel knew or reasonably could have known at the time, the advice was entirely sound. [Note 16]

Conclusion.

We therefore conclude that there was no ineffective assistance

Page 42

of counsel in connection with any potential motion to revise or revoke the defendant's sentence, and thus no basis on which the defendant could arguably be excused from the sixty-day time limit in which to file such a motion. Accordingly, we vacate the allowance of the defendant's motion to revise or revoke his sentence, vacate the judge's order sentencing the defendant to from fifteen years to fifteen years and one day, and reinstate the defendant's original sentence.

So ordered.