COMMONWEALTH v. BOTELHO (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

This is the defendant's expedited appeal from an order denying his motion to revise or revoke his sentence pursuant to Mass. R. Crim. P. 29 (a), as appearing in 474 Mass. 1503 (2016).² For the reasons that follow, we vacate the order and remand the case to the Superior Court for further proceedings.

On June 29, 2018, a grand jury returned indictments charging the defendant with rape, G. L. c. 265, § 22 (b); and delivering alcohol to a person under twenty-one years of age, G. L. c. 138, § 34. On February 10, 2020, the defendant pleaded guilty to the charges and the plea judge imposed an agreed-upon sentence of not more than five years and not fewer than four years in State prison, followed by one year of probation.³ A few days later, on February 13, 2020, the defendant filed a motion to revise and revoke his sentence without stating any reasons explaining why he was entitled to relief. No action was taken on this motion. Then, on April 9, 2020, the defendant filed a second motion to revise and revoke his sentence. He sought to postpone the imposition of his sentence until the termination of any state of emergency relating to the COVID-19 pandemic. The defendant submitted an affidavit is support of his motion in which he averred that he suffers from asthma and is generally in poor health. As a result, he argues, he falls within a class of persons who ought to be considered for release. The plea judge denied the motion that same day, ruling that “[a] motion to revise or revoke can rely only on facts or circumstances that existed at the time of sentencing,” and that “[t]he COVID-19 pandemic was not a circumstance known at the time” of the defendant's sentencing. This appeal ensued.⁴

Under rule 29 (a), a judge may “reconsider the sentence he has imposed and determine, in light of the facts as they existed at the time of sentencing.” Commonwealth v. Jackson, 80 Mass. App. Ct. 528, 533 (2011). We review the denial of a motion to revise or revoke a sentence for an abuse of discretion. See Commonwealth v. Barclay, 424 Mass. 377, 380-381 (1997); Commonwealth v. Shagoury, 6 Mass. App. Ct. 584, 599 (1978).

We are not persuaded by the Commonwealth's argument that the COVID-19 pandemic was not a fact or circumstance in existence at the time of the defendant's sentencing. While it is true, as the Commonwealth notes, that a state of emergency was not declared in Massachusetts until March 10, 2020, it was known and knowable that COVID-19 had developed and was spreading in other parts of the world and the United States by the time of the defendant's sentencing on February 10. See Berkeley Lovelace, Jr., CDC confirms second US case of coronavirus and is monitoring dozens of other potential cases (Jan. 24, 2020) [https://perma.cc/K8E5-KA6G] (citing two known United States COVID-19 cases and sixty-three potential cases being monitored in twenty-two States). Moreover, while the World Health Organization (WHO) did not officially declare COVID-19 a pandemic until March 11, 2020, see WHO Director-General's opening remarks at the media briefing on COVID-19 -- 11 March 2020 [https://perma.cc/35RZ-4YDX], WHO had declared the outbreak “a public health emergency of international concern” by the end of January, see James Griffiths, Angela Dewan, Gianluca Mezzofiore, Livia Borghese, and Ivana Kottasová, Global fears spread over coronavirus (Jan. 30, 2020) [https://perma.cc/9396-4RSY]. Given the history of these developments, we conclude that the existence and the international proliferation of COVID-19 were circumstances known and knowable at the time of the defendant's sentencing and that the judge could have considered them in ruling on the defendant's motion to revise and revoke his sentence. The judge erred in concluding that he could not do so.

While we express no view on what the judge's ultimate ruling on the defendant's motion may be, we vacate the order denying the defendant's motion to revise and revoke his sentence and remand for further proceedings.

So ordered.

FOOTNOTES

2.   See generally Christie v. Commonwealth, 484 Mass. 397 (2020).

3.   The defendant's brief erroneously states that he was sentenced to State prison for not more than four years and not fewer than three years.

4.   The defendant initially attempted to file an interlocutory appeal pursuant to Mass. R. Crim. P. 15 (a) (2), as amended, 476 Mass. 1501 (2017), and G. L. c. 278, § 28E. That appeal was denied and the defendant was instructed to file a notice of appeal in this court.