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17-P-1046                                               Appeals Court

               COMMONWEALTH    vs.    PATRICK COELHO.


              No. 17-P-1046.         October 18, 2019.


Rules of Criminal Procedure. Practice, Criminal, Affidavit,
     Sentence. Evidence, Guilty plea.


     Within sixty days of pleading guilty and being sentenced,
the defendant filed a motion to revise or revoke pursuant to
Mass. R. Crim. P. 29, as appearing in 474 Mass. 1503 (2016).
Accompanying the motion was an affidavit of counsel. Neither
the motion nor the affidavit disclosed the basis for invoking
the rule. More than three years later, the defendant filed a
supplemental motion to revise or revoke. The same judge who
sentenced the defendant denied the motion, and the defendant
appealed. We do not consider the defendant's claims on appeal
because we hold that the motion to revise or revoke was untimely
and not properly before the trial court.

     Background. Shortly before noon on August 1, 2011, the
defendant drove his parents' Mercedes automobile through the
town of Dartmouth, speeding and tailgating other vehicles.
After hitting a motorcycle, the defendant continued until he
also hit a Toyota Corolla. When his own vehicle became
disabled, the defendant got out of the vehicle and walked away.
Witnesses pointed him out to police, who arrested him. The
operators of the other two vehicles involved were taken to the
hospital. The motorcyclist died within approximately one-half
hour of the collision. On March 18, 2013, the defendant pleaded
guilty to charges stemming from the incident. Upon disparate
sentencing recommendations, the judge sentenced the defendant to
an aggregate of from fifteen to eighteen years of imprisonment,
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followed by a two-year period of probation. 1 On May 7, 2013, the
defendant, through plea counsel, filed a motion to revise or
revoke with only an affidavit of counsel attached. 2 On August
30, 2016, the defendant, now through appellate counsel, filed a
supplemental motion to revise or revoke, along with affidavits
from both the defendant and appellate counsel, an expert report,
and a memorandum of law. The basis for the motion was that the
defendant received ineffective assistance of counsel at
sentencing, the sentencing judge was not impartial, and the
defendant's sentence was disproportionate to the crime. In
general, he sought to reduce the committed portion of his
sentence by more than half.

     Discussion. Rule 29 (a) (2) of the Massachusetts Rules of
Criminal Procedure affords defendants an avenue to obtain
revision or revocation of an "[u]njust [s]entence[]," by filing
a motion within sixty days of sentencing. 3 The rule also


     1 The defendant was sentenced to from twelve to fifteen
years for manslaughter; a consecutive sentence of from three
years to three years and one day for leaving the scene of an
accident resulting in death; a concurrent sentence of from three
to five years for operating under the influence, fourth offense;
and two years of probation, on and after the committed portion
of his sentence, for leaving the scene of an accident with
personal injury.

     2 The motion stated that the defendant was moving to revise
or revoke, that an affidavit of counsel was attached, and that
he "reserve[d] the right to file a supplemental affidavit," and
requested that "no immediate action be taken." The affidavit
stated that the attorney was counsel of record admitted to
practice within the Commonwealth, that the defendant pleaded
guilty and was sentenced to a term of incarceration, and that
the motion was filed "for no immediate action at this time."

     3   Rule 29 (a) (2) provides:

     "The trial judge, upon the judge’s own motion, or the
     written motion of a defendant, filed within sixty days
     after the imposition of a sentence or within sixty days
     after issuance of a rescript by an appellate court on
     direct review, may, upon such terms and conditions as the
     judge shall order, revise or revoke such sentence if it
     appears that justice may not have been done."
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requires that the motion be supported by affidavit. 4 Unlike many
other court filing deadlines, the sixty-day deadline for filing
may not be enlarged. See Mass. R. Crim. P. 46 (b), 378 Mass.
922 (1979) (providing for enlargement of time, except for
motions under rules 25 and 29). See also Commonwealth
v. Callahan, 419 Mass. 306, 308 (1995) (sixty-day time limit in
rule 29 is "absolute and may not be extended").

     Although the defendant here did file a rule 29 motion and
affidavit within the required sixty-day time frame, this was not
the motion on which the judge acted. Nor was it intended to be.
The motion recited no grounds, the affidavit provided no factual
support, and the defendant sought no action from the court.
Thus, the papers filed by the defendant within the sixty-day
deadline served no purpose but to act as a placeholder for the
motion that was actually meant to be filed and acted on at a
later time (here, three years later), well beyond the sixty-day
deadline. The defendant acknowledges as much, arguing that
"[t]his type of 'placeholder' motion under Mass. R. Crim. P.
29[](a) is common in the trial court," and that for this court
to reject it "would be to invalidate said common practice."

     We need not consider the validity of this practice at this
point because the Supreme Judicial Court did so more than
fifteen years ago in Commonwealth v. DeJesus, 440 Mass. 147
(2003). 5 There, the defendant filed a rule 29 motion within the
sixty-day time frame but provided no reason why it was
filed. Id. at 148-149. Instead, the motion stated that the
defendant relied on the affidavit to be filed prior to the
hearing. Id. at 149. A supporting affidavit and request for
hearing were not filed until eighteen months later. Id. The
court held that the motion that was filed within the sixty-day

     4   Rule 29 (b) provides:

     "If a party files a motion pursuant to this rule, the party
     shall file and serve, and the other party may file and
     serve, affidavits in support of their respective positions.
     The judge may deny a motion filed pursuant to this rule on
     the basis of facts alleged in the affidavits without
     further hearing."

     5 Then, too, the Commonwealth alleged that "defense lawyers
throughout the Commonwealth routinely file motions to revise and
revoke a sentence without supporting affidavits, then wait for
favorable circumstances to materialize before filing the
affidavit." DeJesus, 440 Mass. at 150 n.5.
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deadline was "devoid of any support" and so was inadequate for
purposes of rule 29. Id. at 148.

     The defendant seeks to distinguish his case from DeJesus by
pointing out that he, unlike the defendant in DeJesus, did file
an affidavit within the required timeline. Yet, the Supreme
Judicial Court did not reject the defendant's motion simply
because it was unaccompanied by affidavit. Rather, the court
held that, "to be properly filed, a motion to revise or revoke
must be accompanied by an affidavit, or otherwise indicate the
grounds on which it is based" (emphasis added). DeJesus, 440
Mass. at 152. Thus, the court contemplated that the affidavit
would indicate the grounds on which the motion was based.
Indeed, the rule presumes that the affidavit will support the
defendant's position. See Mass. R. Crim. P. 29 (b) ("party
shall file and serve . . . affidavit[] in support of [his] . . .
position[]"). See also DeJesus, supra (rule 29 "affidavit . . .
is intended to identify such facts that would warrant the
allowance of the motion").

     Here, the defendant's affidavit neither supported his
position nor "indicate[d] the grounds on which [the motion was]
based." DeJesus, 440 Mass at 152. As a result, despite being
timely filed, the affidavit left the motion "devoid of any
support." 6 Id. at 148. As in DeJesus, the defendant's filing
was inadequate for purposes of rule 29 and therefore not
properly before the trial court. See id.

                                   Order entered July 7, 2017,
                                     denying motion to revise
or                                   revoke vacated.


     Max Bauer (Veronica J. White also present) for the
defendant.
     Robert P. Kidd, Assistant District Attorney, for the
Commonwealth.

     6 The defendant suggests that his groundless rule 29 motion
and affidavit may be saved by his explicit reservation of right
to file a supplemental affidavit. Yet, a party cannot reserve
what is not the party's right to do. See Clark, petitioner, 34
Mass. App. Ct. 191, 194 (1993) (defendant and prosecutor cannot
make binding agreement to waive sixty-day deadline under rule
29). See also Commonwealth v. Barclay, 424 Mass. 377, 378, 380
(1997) (judge could not contravene rule 29, even though both
parties probably invited judge to do so).
