Motions to Revise and Revoke Under MASS. R. CRIM. P. 29: A Quick Overview

By Dana A. Curhan

Rule 29 of the Massachusetts Rules of Criminal Procedure permits a trial judge "upon his own motion or the written motion of a defendant... [to] revise or revoke [a defendant's] sentence if it appears that justice may not have been done." Over the years, trial judges have used this broad and simple language to modify criminal sentences in a wide variety of circumstances. Often, judges have reduced sentences based on events occurring after sentencing, such as a defendant's good conduct while incarcerated or the denial of parole. In effect, judges have used Rule 29 to retain discretion over a defendant's sentence until its completion. As a corollary to this practice, defense attorneys routinely file motions to revise and revoke after sentencing to just to keep the defendant's options open.

Limited Scope

The appellate courts in Massachusetts have, however, taken a far more narrow view of the scope and purpose of Rule 29. As the Appeals Court has noted, "there appears to be a misunderstanding of the purpose of rule 29." In re Clark, 34 Mass. App. Ct. 191, 194 (1993). "The purpose of rule 29 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.'" Commonwealth v. Barclay, 424 Mass. 377, 380 (1997), quoting Commonwealth v. Layne, 386 Mass. 291, 295, (1982) (emphasis added). Indeed, appellate courts have "repeatedly and unequivocally held that a judge may not take into account conduct of the defendant that occurs subsequent to the original sentencing." Commonwealth v. Barclay, 424 Mass. 377, 380 (1997). See Commonwealth v. Sitko, 372 Mass. 305, 312-314, (1976); Commonwealth v. Richards, 44 Mass. App. Ct. 478, 482 (1998).

Beyond the general prohibition against considering post sentencing conduct, appellate courts have taken a particularly dim view of attempts to circumvent decisions of the parole board. The granting of parole is a function of the executive branch of government. Commonwealth v. Amirault, 415 Mass. 112, 116 (1993); Stewart v. Commonwealth, 413 Mass. 664, 669 (1992). According to the Supreme Judicial Court, "[b]y 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 function[,]" and the sentence reduction cannot stand. Id. at 116-117.

Timing

In addition to the limitations on factors that a judge may consider, both Rule 29 and the courts have imposed strict limitations as to when motions to revise and revoke can be filed and when they must be brought forward.

"Rule 29(a) requires that a defendant file his motion within sixty days after the imposition of the sentence" or within sixty days after the conclusion of the appellate process. Commonwealth v. Callahan, 419 Mass. 306, 308 (1995). See Commonwealth v. McNulty, 42 Mass. App. Ct. 955, 956 (1997). "This sixty-day time period established in the rule is absolute and may not be extended." Id.; Commonwealth v. McNulty, 42 Mass. App. Ct. at 956. It is jurisdictional and cannot be waived even by agreement of both parties. In re Clark, 34 Mass. App. Ct. at 194.
Even where a judge elects to "act upon his own motion, the action must be taken within sixty days." Commonwealth v. McNulty, 42 Mass. App. Ct. at 956.

Further, although the rule imposes no time limitations on bringing forward a motion to revise and revoke, the defendant must request a hearing within a reasonable time after the sentencing or appeal. Commonwealth v. Barclay, 424 Mass. at 380. "[B]ecause the purpose of the rule is to enable the judge to reconsider a sentence based on the facts existing at the time he imposed the sentence, a lengthy delay between sentencing and reconsideration impedes the judge's ability to 'make the determination called for by the rule without improperly considering postsentencing events.'" Id., quoting Commonwealth v. Layne, 386 Mass. at 295-296. While the courts have not defined "a reasonable time" in this context, the Supreme Judicial Court has characterized a six year delay in requesting a hearing as "unreasonable". Id. Compare Commonwealth v. Layne, 386 Mass. at 295-296 (Rule 29 precluded a judge from considering a motion to revise or revoke that had been timely filed after appeal but had remained dormant for more than nine years). It is not certain where the courts will ultimately draw the line, but any delay beyond a few months after sentencing or appeal carries some risk of dismissal.

The Risk of an Increased Sentence

Not only must a defendant worry about not prevailing on a motion to revise and revoke, but there is a risk that the trial court will increase the sentence. Under Rule 29, a sentencing judge, either on motion of a party or on his or her own motion, may "revoke and revise a sentence and increase its severity if it appears that justice may not have been done." Commonwealth v. Carver, 33 Mass. App. Ct. at 390; Aldoupolis v. Commonwealth, 386 Mass. 260, 268-271 (1982); Commonwealth v. Derry, 26 Mass. App. Ct. 10, 12 (1988).

Some Useful Purposes

Notwithstanding its limitations and risks, Rule 29 does serve a number of useful purposes.

Where a judge imposes an unlawful sentence, the rule permits him or her to correct the error. Commonwealth v. Carver, 33 Mass. App. Ct. 378, 390 (1992). Where a judge makes a mistake as to the sentencing options-for example, imposing a state prison sentence in the mistaken belief that a house of correction sentence is not available-the rule permits the court to resentence the defendant. Finally, if a party discovers new information concerning facts that existed at the time of the original sentence, the judge may resentence the defendant. Commonwealth v. Steele, 42 Mass. App. Ct. 319, 321 (1997).

A motion to revise and revoke should still be filed after sentencing or appeal if there is any possibility that new information might turn up or if the judge makes any type of legal or factual error in sentencing the defendant. Both counsel and the defendant should be realistic as to the limitations of such motions. Rule 29 clearly is not the magic bullet that defendants and their attorneys might believe it to be.

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(c) 1998 Dana Alan Curhan. All rights reserved.

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