Mass. Decisions, 1-620 N.E.2d 612 N.E.2d 631, 415 Mass. 112, Com. v. Amir...
Copyright (c) West Publishing Co. 1993 No claim to original U.S. Govt. works.
________________________________________________________________________________
------------------------- Page 612 N.E.2d 631 follows --------------------------
415 Mass. 112
COMMONWEALTH
v.
Violet AMIRAULT & another. (FN1)
Supreme Judicial Court of Massachusetts,
Middlesex.
Argued Dec. 10, 1992.
Decided May 4, 1993.
The Superior Court, Middlesex County, granted defendants' motions to revise
or revoke their sentences, and Commonwealth appealed. The Supreme Judicial
Court, Abrams, J., held that: (1) Commonwealth has right to appeal judge's
allowance of motion to revise or revoke sentence, and (2) in considering
requests for revision of sentences, judge may not consider denial of parole.
Vacated and remanded.
Liacos, C.J., dissented with opinion.
1. CRIMINAL LAW k1024(9)
110 ----
110XXIV Review
110XXIV(D) Right of Review
110k1024 Right of Prosecution to Review
110k1024(9) Nature or grade of offense and extent of penalty.
Mass. 1993.
Commonwealth has right to appeal judge's allowance of motion to revise or
revoke sentence. Rules Crim.Proc., Rule 29, 43C M.G.L.A.; M.G.L.A. c. 211,
Sec. 3; c. 278, Sec. 28E.
2. PARDON AND PAROLE k47
284 ----
284II Parole
284k45 Authority or Duty to Grant Parole or Parole Consideration
284k47 Discretionary nature.
Mass. 1993.
Granting of parole is discretionary act of parole board.
3. CONSTITUTIONAL LAW k72
92 ----
92III Distribution of Governmental Powers and Functions
92III(B) Judicial Powers and Functions
92k71 Encroachment on Executive
92k72 In general.
Mass. 1993.
Granting of parole is function of executive branch of government.
4. CRIMINAL LAW k996(3)
110 ----
110XXIII Judgment, Sentence, and Final Commitment
110k996 Amendment or Correction of Record
110k996(3) Proceedings and determination; resentencing procedure.
Mass. 1993.
In considering requests for revision of sentences, judge may not consider
denial of parole. Rules Crim.Proc., Rules 29, 29(a), 43C M.G.L.A.
Patricia M. Darrigo, Asst. Dist. Atty., for Com.
Juliane Balliro, Boston (Joseph J. Balliro with her), for defendants.
Before LIACOS, C.J., and ABRAMS, LYNCH, O'CONNOR and GREANEY, JJ.
ABRAMS, Justice.
The Commonwealth appeals from a judge's allowance of the defendants'
motions to revise or revoke their sentences. On July 15, 1987, the judge
sentenced each defendant to concurrent terms on multiple convictions of
indecent[415 Mass. 113] assault and battery on a child and rape of a child.
(FN2) On August 12, 1987, the defendants each filed a motion to revise or
revoke the sentence pursuant to Mass.R.Crim.P. 29, 378 Mass. 899 (1979).
On June 24, 1992, the defendants requested that their rule 29 motions be
heard. On October 1, 1992, the trial judge held a hearing and allowed the
defendants' motions. The judge revised their sentences to 64 months with the
remainder suspended for seven years under the supervision of the probation
department. The Appeals Court stayed the orders pending appeal. We allowed
the Commonwealth's application for direct appellate review. We vacate the
judge's orders, and order the original sentences be reinstated.
[1] The Commonwealth's right to appeal. The defendants argue that the
Commonwealth has no right to appeal the allowance of a motion brought pursuant
to rule 29. Rule 29(a) states: "The trial judge upon his own motion or the
written motion of a defendant filed within sixty days after the imposition of
a sentence, within sixty days after receipt by the trial court of a rescript
issued upon affirmance of the judgment or dismissal of the appeal, or within
sixty days after entry of any order or judgment of an appellate court denying
review of, or having the effect of upholding,
------------------------- Page 612 N.E.2d 632 follows --------------------------
a judgment of conviction, may upon such terms and conditions as he shall
order, revise or revoke such sentence if it appears that justice may not have
been done." The defendants suggest that the omission of a specific right to
appeal from the language of G.L. c. 278, Sec. 28E (1990 ed.), indicates a
legislative intention to preclude the Commonwealth from appealing a judge's
order on a motion to revise or revoke. In addition, the defendants claim that
the Commonwealth may not appeal under G.L. c. 278, Sec. 28E (1990 ed.), which
[415 Mass. 114] states: "An appeal may be taken by and on behalf of the
commonwealth by the attorney general or a district attorney from the superior
court to the supreme judicial court in all criminal cases from a decision,
order or judgment of the court (1) allowing a motion to dismiss an indictment
or complaint, or (2) allowing a motion for appropriate relief under the
Massachusetts Rules of Criminal Procedure." The defendants argue that
motions under rule 29 are not motions for appropriate relief. We reject that
argument.
In Commonwealth v. Therrien, 383 Mass. 529, 420 N.E.2d 897 (1981), the
Commonwealth sought to challenge a judge's order granting a defendant's motion
for a finding of not guilty, pursuant to Mass.R.Crim.P. 25(b)(1). The
Commonwealth both appealed the judge's order and brought a complaint for
relief under G.L. c. 211, Sec. 3. We dismissed the complaint under G.L. c.
211, Sec. 3, because we held that G.L. c. 278, Sec. 28E, gave the Commonwealth
the right to appeal from the allowance of Mass.R.Crim.P. 25(b) motion. Id.
at 534, 420 N.E.2d 897. We noted that the reference in G.L. c. 278, Sec.
28E, "to a motion for appropriate relief must be read more broadly than to
refer only to pretrial motions." Id. at 535, 420 N.E.2d 897. We
determined that, in common parlance, motions under rule 30, requesting
postconviction relief, were motions for appropriate relief under G.L. c. 278,
Sec. 28E, and that, therefore, a motion for a required finding of not guilty
under rule 25 also would be such a motion. (FN3) Cf. Commonwealth v.
Yelle, 390 Mass. 678, 684-685, 459 N.E.2d 461 (1984) (Commonwealth has no
right to an interlocutory appeal from the allowance of a motion to admit
evidence).
Then, in Commonwealth v. Layne, 386 Mass. 291, 435 N.E.2d 356 (1982), we
allowed the Commonwealth to appeal a judge's revision [415 Mass. 115] or
revocation of sentence, although we did not discuss the statutory authority
for such an appeal. We now hold that the allowance of a defendant's rule 29
motion to revise or revoke his or her sentence is a "motion for appropriate
relief under the Massachusetts Rules of Criminal Procedure." Consequently,
G.L. c. 278, Sec. 28E, allowing the Commonwealth to appeal "a decision, order
or judgment of the court ... (2) allowing a motion for appropriate relief
under the Massachusetts Rules of Criminal Procedure" is applicable. (FN4)
Therefore, the Commonwealth has the right to appeal the judge's allowance of
the rule 29 motions. (FN5)
The merits. On May 6, 1992, LeFave had her first hearing before a parole
board panel. Her request for parole was denied unanimously. Her appeal to
the panel was denied on June 16, 1992, and LeFave failed to pursue any further
administrative remedies.
------------------------- Page 612 N.E.2d 633 follows --------------------------
On June 4, 1992, Amirault had her first hearing before a parole board panel
and her request for parole was denied unanimously also. She did not appeal to
the panel or pursue any other administrative remedies. On June 24, 1992, the
defendants asked the trial judge to rule on the rule 29 motions they had filed
on August 12, 1987, the time of their convictions. (FN6) The judge
scheduled a hearing [415 Mass. 116] at which he noted: "It would be the usual
intention of a sentencing Judge to intend the Defendants to serve two-thirds
of the sentence imposed, which would be 64 months, unless there was something
about their service of their sentence which made them subject to a violation
and led the [p]arole [b]oard to denying it, but policy considerations would
not be a factor." The judge ruled that he had intended at the time of
sentencing to sentence the defendants to 64 months. Consequently, he allowed
their motions and revised the sentences to 64 months served with the remainder
of seven years suspended under the auspices of the probation department.
The Commonwealth asserts that the judge improperly considered events taking
place after sentencing when he considered and then allowed the rule 29
motions. (FN7) This, the Commonwealth suggests, was a usurpation of the
role of the parole board which violates art. 30 of the Massachusetts
Declaration of Rights, the doctrine of separation of powers. (FN8) We agree.
[2][3] The granting of parole is a discretionary act of the parole
board. Lanier v. Massachusetts Parole Bd., 396 Mass. 1018, 1018, 489 N.E.2d
670 (1986). Woods v. State Bd. of Parole, 351 Mass. 556, 559, 222 N.E.2d 882
(1967). It is a function of the executive branch of government. Stewart v.
Commonwealth, 413 Mass. 664, 669, 603 N.E.2d 912 (1992). Baxter v.
Commonwealth, 359 Mass. 175, 179, 268 N.E.2d 670 (1971). By allowing a motion
to revise or revoke sentences when the parole board does not act in accordance
with a judge's expectations, the judge is interfering with the executive[415
Mass. 117] function. The judge cannot nullify the discretionary actions of
the parole board. (FN9)
[4] The purpose of review under rule 29(a) is to "permit a judge to
reconsider the sentence he has imposed and determine, in light of the facts as
they existed at the time of sentencing, whether the sentence was just
[emphasis in original]. Commonwealth v. Sitko, 372 Mass. 305, 313-314, [361
N.E.2d 1258] (1977)." Commonwealth v. Layne, supra, 386 Mass. at 295, 435
N.E.2d 356. See also Commonwealth v. Foley, 17 Mass.App.Ct. 238, 245, 457
N.E.2d 654 (1983). At the time of sentencing,
------------------------- Page 612 N.E.2d 634 follows --------------------------
the judge imposed sentences that he noted were within the guidelines. In
considering requests for revision of those sentences under rule 29 the judge
may not consider the denial of parole. (FN10) See Commonwealth v. Layne,
supra, 386 Mass. at 295, 435 N.E.2d 356; Commonwealth v. Sitko, supra at
314. See Mass.R.Crim.P. 29(a). The judiciary may not act as a super-parole
board.
We vacate the judge's orders and remand to the Superior Court where the
original sentences are to be reinstated.
So ordered.
LIACOS, Chief Justice (dissenting).
The court today enlarges its prior decision permitting the Commonwealth to
appeal the [415 Mass. 118] allowance of certain posttrial motions under the
1979 amendments to G.L. c. 278, Sec. 28E (1990 ed.). See Commonwealth v.
Therrien, 383 Mass. 529, 420 N.E.2d 897 (1981). (FN1) Thus, the court holds
that the Commonwealth may appeal the allowance of a motion to revise or revoke
a sentence brought pursuant to Mass.R.Crim.P. 29, 378 Mass. 899 (1979). I
adhere to the view that our Legislature did not intend the 1979 "housekeeping"
changes to Sec. 28E to alter the long-established practice of allowing the
Commonwealth to appeal from pretrial motions only. See id., 383 Mass. at
539-542, 420 N.E.2d 897 (Liacos, J., dissenting). I also believe that the
court today misapplies the principles announced in Therrien, from which
decision I dissented, by reading into Sec. 28E another rule of law which the
drafters of that statute never contemplated. Accordingly, I dissent.
Section 28E allows the Commonwealth to appeal the allowance of "a motion
for appropriate relief under the Massachusetts Rules of Criminal
Procedure." In Therrien, the court construed these words to encompass a
postverdict motion for a required finding of not guilty brought pursuant to
Mass.R.Crim.P. 25(b), 378 Mass. 896 (1979). In support of its conclusion, the
court noted that Mass.R.Crim.P. 30, 378 Mass. 900 (1979), expressly allows the
Commonwealth to appeal the allowance of a motion for a new trial or a motion
for release from confinement imposed in violation of the laws of the
Commonwealth. The court found that, "[i]n common parlance, such [posttrial]
motions are motions for appropriate relief." The court in Therrien
reasoned that, because a criminal defendant may present the same legal
questions under either rule 25 or rule 30, it "follows logically" that the
Commonwealth should have the right to appeal the allowance of a motion brought
under either of these rules. Therrien, supra at 535, 420 N.E.2d 897. The
court noted that its desire "to find harmony and not discord in the
cooperative effort of the Legislature and this court to coordinate statutes
and rules involving procedural matters" lent further support to [415 Mass.
119] the conclusion that Sec. 28E permits the Commonwealth to appeal from a
posttrial motion. Id. at 534, 420 N.E.2d 897.
While the Therrien court refused to confine Sec. 28E to pretrial motions,
it also warned that "the Commonwealth may not appeal the allowance of every
defense motion. There are certain motions whose allowance must be treated as
terminating the criminal prosecution without any right to appeal." Id. at
535, 420 N.E.2d 897. This cautionary language squarely applies to the
present case because none of the factors that supported the court's decision
in Therrien is present here.
First, the legal issues raised by a rule 29 motion cannot be litigated
under an independent rule of criminal procedure permitting appeals by the
Commonwealth. Thus, the Commonwealth's asserted right to appeal the revision
or revocation of a sentence does not "follow logically" from its right to
appeal similar legal questions raised pursuant to a different procedural
route. Therrien, supra. Next, a rule 29 motion is not--"in common
parlance"--a
------------------------- Page 612 N.E.2d 635. follows -------------------------
motion for appropriate relief. The court's analysis in Therrien evinced an
understanding that only motions relating to the conduct of the trial itself,
such as a rule 13 discovery motion or a rule 25 motion for a required finding
of not guilty, qualify as such. Rule 29 motions, on the other hand, concern
the modification of the punishment imposed on the criminal defendant after the
issue of his or her guilt has been determined.
Finally, today's decision does nothing to "coordinate statutes and rules
involving procedural matters." Therrien, supra at 534, 420 N.E.2d 897.
As already mentioned, no rule of criminal procedure permits the Commonwealth
to appeal the revision or modification of a sentence. While language
permitting the Commonwealth to appeal was added to rule 25 in 1983 after
Therrien, rule 29 was never so amended. See Reporters' Notes to
Mass.R.Crim.P. 25 & 29, Mass.Ann.Laws, Rules of Criminal Procedure at 434 &
473 (Law.Coop.1979 & Supp.1993). The court's stated desire "to find harmony
and not discord" between statutes and rules, therefore, [415 Mass. 120] should
have prompted the court to disallow the Commonwealth's appeal in the present
case. Therrien, supra at 534, 420 N.E.2d 897. (FN2)
In sum, the court has ignored the limitations on the Commonwealth's right
to appeal set forth in Therrien. Today's standardless decision signals, I
fear, a willingness to allow the Commonwealth to appeal from every defense
motion brought under the rules of criminal procedure unless double jeopardy
principles prohibit further prosecution. Congress has explicitly adopted this
rule with respect to Federal cases. See 18 U.S.C. Sec. 3731 (1988). Our
Legislature, however, has drafted Sec. 28E so as to limit further the
Commonwealth's right to appeal. See Commonwealth v. Yelle, 390 Mass. 678,
684, 459 N.E.2d 461 (1984). The court's continuing dilution of our statute is
regrettable. I dissent.
FN1. Cheryl Amirault LeFave.
FN2. Violet Amirault was sentenced to two concurrent terms of eight to twenty
years on the rape convictions and three concurrent eight to ten year terms on
the indecent assault and battery convictions.
Cheryl LeFave was sentenced to three concurrent terms of eight to twenty
years on the rape convictions and four concurrent eight to ten year terms
on the indecent assault and battery convictions.
FN3. In Commonwealth v. Therrien, supra, 383 Mass. at 531, 420 N.E.2d 897,
we noted that the double jeopardy clause of the Fifth Amendment to the
Constitution of the United States would not prevent the Commonwealth's appeal
in that case. " '[W]hen a judge rules in favor of the defendant after a
verdict of guilty has been entered by the trier of fact, the Government may
appeal from that ruling without running afoul of the Double Jeopardy
Clause.' United States v. Wilson, 420 U.S. 332, 352-353 [95 S.Ct. 1013,
1026, 43 L.Ed.2d 232] (1975)."
FN4. Were the dissent to prevail, then in cases such as this, where a judge
abuses his or her judicial authority and violates art. 30 of the Massachusetts
Declaration of Rights by overruling the parole board, the abusive action would
go uncorrected. Clearly, the Legislature did not intend any such result. On
appeal, the public has a right to expect the Supreme Judicial Court to correct
any abuse of judicial power, if not under the statute, G.L. c. 278, Sec. 28E,
then at least under its superintendence powers. See G.L. c. 211, Sec. 3.
FN5. Because we conclude that G.L. c. 278, Sec. 28E, permits an appeal in
these circumstances, we do not discuss the relief available pursuant to G.L.
c. 211, Sec. 3.
FN6. Each motion to revise or revoke stated that "said sentence is unduly
harsh in the circumstances of this case and that as a result, justice may not
have been done." The Commonwealth argues that the motions were defective on
their faces because no affidavits supported the assertions and therefore the
notice provisions were not met. Because we decide the case on different
grounds, and in the Commonwealth's favor, we do not address the Commonwealth's
argument that the motions were inadequate as filed.
FN7. The Commonwealth does not argue that rule 29(a) requires a motion to
revise or revoke a sentence must be filed and decided within sixty days after
certain judicial determinations adverse to the defendant. See supra at ----.
We therefore do not discuss that issue.
FN8. Article 30 reads: "In the government of this commonwealth, the
legislative department shall never exercise the executive and judicial powers,
or either of them: the executive shall never exercise the legislative and
judicial powers, or either of them: the judicial shall never exercise the
legislative and executive powers, or either of them: to the end it may be a
government of laws and not of men."
------------------------- Page 612 N.E.2d 635_ follows -------------------------
FN9. We distinguish the case relied on by the defendants, Commonwealth v.
Foley, 17 Mass.App.Ct. 238, 457 N.E.2d 654 (1983). In Foley, the Appeals
Court held that it appeared that justice may not have been done and allowed a
motion to revise the sentences to conform with the judge's intent. Id. at
245, 457 N.E.2d 654. The judge was aware of the parole regulations and
intended the defendant to be eligible for parole in eighteen months. Id. He
was mistaken, however, as to the length of time to which he would have to
sentence a defendant in order for the defendant to be eligible for parole in
eighteen months. The Appeals Court therefore revised the defendant's sentence
to reflect the judge's intention as to parole eligibility. Id. at 246, 457
N.E.2d 654. That is not what the judge's order did in these cases. To the
extent that Foley is inconsistent with our opinion, it is overruled.
FN10. We recognize that, in imposing sentences, judges necessarily consider
parole eligibility dates. Consideration of that factor after trial is not the
same as revision of sentences based on denial of parole.
FN1. Prior to these amendments, Sec. 28E was construed to cover pretrial
motions only. See Commonwealth v. McCarthy, 375 Mass. 409, 413, 378 N.E.2d
429 (1978).
FN2. Commonwealth v. Layne, 386 Mass. 291, 435 N.E.2d 356 (1982), does not
support the court's decision because the Commonwealth's right to appeal was
not challenged in that case.
(
geocities.com/jgharris7/witchhunt) (
geocities.com/jgharris7)