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SJC-12593

               COMMONWEALTH   vs.   ROBINSON TEJEDA.



        Suffolk.      December 4, 2018. - March 29, 2019.

   Present:    Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
                           & Kafker, JJ.


        Practice, Criminal, Sentence.    Joint Enterprise.



     Indictments found and returned in the Superior Court
Department on April 27, 2012.

     Following review by this court, 473 Mass. 269 (2015), a
motion to revise and revoke the defendant's sentence was heard
by Janet L. Sanders, J.

     After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.


     Dana Alan Curhan for the defendant.
     Helle Sachse, Assistant District Attorney, for the
Commonwealth.


    LOWY, J.   The issue before us is whether a judge may allow

a defendant's motion to revise and revoke a sentence under Mass.

R. Crim. P. 29 (a) (2), as appearing in 474 Mass. 1503 (2016),

based upon the disparity between the defendant's sentence and a
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coventurer's sentence subsequently imposed by a different judge.

Although generally motions to revise and revoke sentences must

be based on facts as they existed at the time of sentencing,

today we recognize a limited exception that allows judges to

consider a coventurer's sentence for the same crime even if

imposed subsequent to the defendant's sentence where it is

reasonably apparent that the defendant was less or equally

culpable than his subsequently-sentenced coventurer.   Because we

conclude that the circumstances of this case fit that narrow

exception, we affirm the decision of the judge to grant the

defendant's motion to revise and revoke his sentence to match

that of his coventurer.

     Background.   After a jury trial, the defendant, Robinson

Tejeda, was convicted of armed robbery and other charges.1    This

court affirmed his convictions in Commonwealth v. Tejeda, 473

Mass. 269, 281-282 (2015).   The defendant's convictions stem

from his involvement in the robbery of a man from whom the

defendant and two friends had arranged to buy marijuana.     Id. at

270-271.   The defendant remained in the vehicle while his two

coventurers, Christopher Pichardo and Stephane Etienne, entered


     1 The defendant also was convicted of possession of a class
D controlled substance with intent to distribute, home invasion,
and murder in the second degree. Commonwealth v. Tejeda, 473
Mass. 269, 269-270 (2015). His motion for judgment
notwithstanding the verdict was allowed as to the murder
conviction and affirmed by this court. Id. at 281-282.
                                                                       3


a residence with the intention of obtaining the marijuana

through a ruse, rather than through payment.       Id. at 270.   Their

robbery led to a gun fight, during which Pichardo was shot and

killed.    Id.    On May 8, 2014, the defendant received a State

prison sentence of from six to eight years on the armed robbery

count.

     After a separate trial before a different judge in April

2015, Etienne received a State prison term of from five to seven

years for armed robbery.       The defendant subsequently filed a

motion to revise and revoke based on the disparity between those

sentences.       The judge agreed with the defendant and reduced his

sentence to match the sentence of Etienne.2      The Commonwealth

appealed, and in an unpublished memorandum and order pursuant to

its rule 1:28, the Appeals Court reversed, concluding insofar as

relevant here that the judge's decision was improperly based on

an event that occurred after the defendant had already been




     2   In support of her decision, the judge stated:

     "I think it's a fairly straightforward issue. You know,
     frankly I think there's a real value to treating like cases
     alike as much as possible. It's hard sometimes to decide
     if cases are exactly alike. There's differences in
     criminal records, there's different facts or different
     levels of involvement. When it comes down to it, however,
     if I had Mr. Tejeda here and was sentencing him at the same
     time as Mr. Etienne, if they had been tried together, then
     I would have imposed the same sentence. So I'm going to
     allow the motion and reduce the sentence to the sentence
     that Mr. Etienne received."
                                                                   4


sentenced.     Commonwealth v. Tejeda, 93 Mass. App. Ct. 1116

(2018).   We allowed the defendant's application for further

appellate review.

    Discussion.      Rule 29 (a) (2) provides that "[t]he 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."

Although a trial judge's power under rule 29 (a) "to revise or

revoke a criminal disposition is severely limited," Commonwealth

v. Goodwin, 458 Mass. 11, 16 (2010), the rule's purpose is to

allow a judge to consider whether the sentence imposed was just

"in light of the facts as they existed at the time of

sentencing."    Commonwealth v. McCulloch, 450 Mass. 483, 487

(2008), quoting Commonwealth v. DeJesus, 440 Mass. 147, 152

(2003).   "In considering whether to allow a motion to revise or

revoke, 'we have repeatedly and unequivocally held that a judge

may not take into account conduct of the defendant that occurs

subsequent to the original sentencing.'"     DeJesus, supra,

quoting Commonwealth v. Barclay, 424 Mass. 377, 380 (1997).

However, a judge may take into account a disparity among the
                                                                     5


sentences of codefendants.    Commonwealth v. Derry, 26 Mass. App.

Ct. 10, 13 (1988).

    The Commonwealth contends that the judge abused her

discretion in allowing the defendant's motion for two reasons.

First, the Commonwealth asserts that the defendant's motion was

inadequate because it was not accompanied by an affidavit and

therefore should have been denied on procedural grounds.     See

Mass. R. Crim. P. 29 (b) (party who files "motion pursuant to

this rule . . . shall file and serve" affidavit in support of

his or her position).   In DeJesus, 440 Mass. at 152, we

considered the affidavit requirement and concluded 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."   However, where, as here, the factual basis for a

motion is clear despite the lack of an affidavit, rule 29 (b) is

not so stringent as to preclude a judge from considering the

motion.

     The Commonwealth further argues that the judge abused her

discretion in considering Etienne's sentence because Etienne was

tried separately and sentenced after the defendant.    Therefore,

the Commonwealth asserts, the reduction of the defendant's

sentence was erroneously based on facts other than those

available at sentencing.     Using our superintendence power, we

now recognize a limited exception to the requirement that
                                                                    6


motions to revise and revoke be based solely on facts as they

existed at the time of sentencing:    a judge may consider a

disparate sentence of a coventurer, tried separately and

subsequently, who was convicted of the same crime where, at the

time of sentencing, it is reasonably apparent that the defendant

was less culpable than or equally culpable to his or her yet

untried coventurer.

     The underlying principles governing rule 29 motions are

fairness and justice.   In keeping with these principles, our

cases emphasizing that facts not in existence at the time of

sentencing cannot serve as the basis for an altered sentence

have focused on the conduct of the defendant or a denial of

parole.   See, e.g., McCulloch, 450 Mass. at 487 (subsequent

payment of restitution improper consideration in rule 29

motion); Barclay, 424 Mass. at 380 (positive conduct by

defendant while incarcerated cannot be considered in rule 29

motion); Commonwealth v. Amirault, 415 Mass. 112, 115-117 (1993)

(judge cannot revise and revoke sentence because parole board

acted contrary to judge's expectations).    We do not depart from

this well-settled law; a defendant's actions postsentencing are

best considered by a parole board.3   See Commonwealth v.


     3 It remains within a judge's discretion to consider a
defendant's behavior while on probation in determining whether
to modify probation conditions. Goodwin, 458 Mass. at 15-23
(judge has discretion to add, eliminate, or modify defendant's
                                                                    7


McGuinness, 421 Mass. 472, 476 n.4 (1995) ("A judge may not

interfere with the executive function of the parole board by

using postconviction evidence in an order to revise and

revoke").

    However, in the circumstances of this case, it would be

arbitrary to say the judge could have considered the

coventurer's sentence if it had been imposed before the

defendant's sentence, but find error in her consideration of the

sentence solely because it was issued after the defendant's

sentence.   See Derry, 26 Mass. App. Ct. at 13.   The facts that

formed the grounds for each sentence were known at trial.     The

defendant remained in the vehicle while his two coventurers

entered a residence with the intention of stealing drugs while

armed with a firearm.   One of the coventurers was killed in a

shootout.   Certainly, the defendant was culpable; he was

convicted and sentenced to State prison.   The defendant's

culpability, however, was not commensurate with that of his

surviving coventurer who entered the residence and engaged in a

robbery that devolved into a shootout while the defendant waited

outside in the vehicle.   The difference between the defendant's

culpability and that of his coventurer, Etienne, was reasonably

apparent at the time of the defendant's original sentencing.



probation conditions based on defendant's performance while on
probation, be it positive or negative).
                                                              8


      In the circumstances of this case, the judge did not

abuse her discretion in considering the coventurer's later-

imposed sentence where the coventurer was more culpable and

received a more lenient sentence.   The allowance of the

defendant's motion to revise and revoke his sentence is

affirmed.

                                    So ordered.
