COMMONWEALTH vs. ERIC D. McNULTY.

COMMONWEALTH vs. ERIC D. McNULTY.

42 Mass. App. Ct. 955

June 10, 1997

James A. Couture for the defendant.

Shaun S. McLean, Special Assistant District Attorney, for the Commonwealth.

On October 10, 1990, following conviction for forcible rape of a child, the defendant was sentenced by a Superior Court judge to serve from six to ten years in prison. Over a year later, the defendant sought a revision of his sentence by motion filed on October 29, 1991. The same judge, on July 1, 1992, after a hearing, revoked the original sentence, and imposed a six to ten year term, three years to be served with the balance suspended. When the judge learned on March 9, 1993, that the defendant was about to be released due to earned "good time" credits of which he had been unaware at the earlier hearing, he ordered a new hearing indicating that he had intended that three years be served under the revised sentence. After the hearing, the judge vacated his prior revision and confirmed the original sentence. On appeal, the defendant principally asserts that the judge violated the sixty-day time limit of Mass.R.Crim.P. 29(a), 378 Mass. 899 (1979), in reconsidering, sua sponte, his earlier revision, made approximately eight

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months before. [Note 1] The Commonwealth relies on the same rule to argue that the judge lacked jurisdiction to allow the defendant's motion to revise his sentence filed over a year after imposition of his original sentence. "Jurisdictional questions . . . may be raised at any time in the progress of a case." Commonwealth v. Zawatsky, 41 Mass. App. Ct. 392 , 394 (1996).

"Rule 29(a) requires that a defendant file his motion within sixty days after the imposition of the sentence. This sixty-day time period established in the rule is absolute and may not be extended." Commonwealth v. Callahan, 419 Mass. 306 , 308 (1995). See Clark, petitioner, 34 Mass. App. Ct. 191 , 193-194 (1993). Although a judge may act upon his own motion, the action must be taken within sixty days. See Aldoupolis v. Commonwealth, 386 Mass. 260 , 271, cert. denied, 459 U.S. 864 (1982). Rule 29(a) "establishes strict jurisdictional time limits for the filing of such motions," Commonwealth v. Layne, 386 Mass. 291 , 295 (1982), and "the court may not extend the time for taking any action under rule[] 29 except to the extent and under the conditions stated therein." Mass.R.Crim.P. 46(b), 378 Mass. 922 (1979).

The postconviction. record presented by the defendant shows that his counsel at that time (late October, 1990) made a "Limited Appearance . . . for purpose of securing [his] notice of appeal." That appeal later appears to have been withdrawn after the allowance of the defendant's motion to revise his sentence. There is a handwritten docket entry apparently made after July 1, 1992, stating "letter to come withdrawing appeal." The circumstances leading to that withdrawal are not explained in this record. "The fact that the defendant's appeal from his convictions was not successfully withdrawn until after his sentences were revised suggests that in fact he did not comply with the language of rule 29(a)." Commonwealth v. Layne, supra at 295 n.3. Moreover, the defendant cannot claim the benefit of a later "entry of any order or judgment of an appellate court denying review of, or having the effect of upholding, a judgment of conviction" after which rule 29(a) appears to allow a motion to revise to be filed within sixty days. Commonwealth v. Callahan, supra at 308.

The defendant asserts in his handwritten motion that he retained counsel to file a motion to revise his sentence, and that he waited eleven months but received no confirmation of such a filing. That assertion is not supported by affidavit of either the defendant or of successor counsel as required by rule 29(b). Nor was it alleged at the hearing on the defendant's motion that prior counsel promised, but did not timely file a motion to revoke or revise sentence. Although alluded to in oral argument, no issue of ineffectiveness of counsel on this point has been argued in the defendant's brief. In the circumstances, we deem the issue waived. Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). Accordingly, we need not consider the approach suggested in Commonwealth v. Stubbs,

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 15 Mass. App. Ct. 955 (1983), that "[i]f 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. 35). See United States v. Golden, 854 F.2d 31, 32 (3d Cir. 1988).

Because the judge was without jurisdiction to revise the sentence, his first revision was void as was his effort at reconsideration. In the circumstances, the defendant's constitutional claims need not be considered. [Note 2] The sentence imposed on October 10, 1990, is to stand.

So ordered.

FOOTNOTES

[Note 1] Rule 29(a) provides: "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, 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."

[Note 2] The defendant also asserts (1) a violation of the separation of powers doctrine, art. 30 of the Massachusetts Declaration of Rights, alleging the judge improperly usurped powers of the parole board; and (2) that he was subjected to jeopardy of repeated punishment by increasing his sentence after it had been shortened.