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Appeals Court of Massachusetts.



Decided: February 17, 2021

By the Court (Rubin, Wolohojian & Sacks, JJ.2)


The defendant appeals from orders denying his motion to revise and revoke his sentence and his motion to reconsider that order. The defendant asserts, among other things, that the presence of COVID-19 in the facility where he is serving his sentence made that sentence unjust at the time it was imposed. We affirm the orders.

Background. On November 18, 2019, a Superior Court judge found the defendant to have violated the conditions of his probation, revoked that probation, and sentenced the defendant to serve one to two years in State prison on the underlying conviction of indecent assault and battery on a person fourteen years of age or older, G. L. c. 265, § 13H. On January 16, 2020, within the sixty days allowed, prior counsel for the defendant filed a motion pursuant to Mass. R. Crim. P. 29, as appearing in 474 Mass. 1503 (2016), to revise and revoke this sentence. Prior counsel did not request a hearing at that time. Furthermore, the motion was not accompanied by an affidavit, nor did it identify any grounds for the relief sought.3 For ease of reference, we refer to this as the motion to revise and revoke.

On May 18, 2020, after the Supreme Judicial Court issued its decision in Christie v. Commonwealth, 484 Mass. 397, 400 (2020), the defendant, represented by new counsel, filed an emergency motion and memorandum seeking (1) relief from unlawful restraint, pursuant to Mass. R. Crim. P. 30 (a), as appearing in 435 Mass. 1501 (2001); (2) habeas corpus relief; or (3) a new trial, pursuant to Mass. R. Crim. P. 30 (b). The memorandum also included arguments in support of the defendant's earlier-filed motion to revise and revoke. In essence, the memorandum asserted that he was at a heightened risk of serious illness or death because of the presence of COVID-19 in the facility where he is serving his sentence (Massachusetts Correctional Institution at Concord), and his medical conditions, which include immunosuppression as a result of medications required by his liver transplant, hypertension, and his age. The motion and memorandum were accompanied by various affidavits, including from several experts and from the defendant. Given the grave medical risk to himself, the defendant sought immediate release from prison. For ease of reference, we refer to this as the second motion.

On June 19, 2020, the judge denied the second motion and issued a memorandum analyzing and addressing in detail the various arguments raised in the second motion. The order on the second motion has not been appealed from and is not before us.

Also on June 19, 2020, the judged issued an order denying the motion to revise and revoke. The order explained that the judge was denying the motion to revise and revoke because it was not accompanied by a timely-filed affidavit and did not otherwise indicate the reason the sentence was unjust at the time it was imposed. For these reasons, the judge indicated that he did not have jurisdiction to allow the motion to revise and revoke.

Subsequently, the defendant filed a supplemental memorandum in support of the motion to revise and revoke.4 This supplemental memorandum argued that his sentence should be revised based on COVID-19 and his medical condition. The supplemental memorandum also argued that the defendant's sentence should be revised because a sequence of family deaths led to the defendant's drug use relapses that were found to violate his probation, and the motor vehicle charges that were also a basis for his probation violation were subsequently dismissed.

The defendant next filed a motion to reconsider the order denying his motion to revise and revoke. The motion to reconsider argued that prior counsel had been ineffective by filing a defective motion to revise and revoke -- namely one that was unsupported by affidavits and made no substantive arguments. The judge denied the motion to reconsider on July 23, 2020. On August 18, 2020, the defendant filed a notice of appeal from the orders denying the motion to revise and revoke and the motion to reconsider.

The defendant's appeal was entered in this court on October 6, 2020. Noting that the defendant raised COVID-19-related issues in his papers, this panel issued an order expediting the appeal, requiring the parties to submit all materials relevant to the appeal, and permitting the parties to file supplemental memoranda.

In response, the defendant filed a memorandum in lieu of brief arguing that (1) he was entitled to supplement his motion to revise and revoke to argue that his sentence should be revised to avoid the danger to him from living in a congregate setting with the risk of COVID-19, and (2) given prior counsel's failure to file timely an adequately-supported motion to revise and revoke raising the threat from COVID-19 and the dismissal of the motor vehicle criminal charges, the defendant should be entitled to the rule of Commonwealth v. Stubbs, 15 Mass. App. Ct. 955 (1983). He asked that the case be remanded to the trial court “as soon as possible to require it to issue a decision on the defendant's Motion to Revise and Revoke on the merits.” The Commonwealth opposed the defendant's request, arguing that there was no reason to think that the subsequent dismissal of the motor vehicle charges, or the deaths in the defendant's family, would have made any difference in the judge's decision to revoke the defendant's probation or in the sentence the judge imposed as a result.

This panel concluded that we were unable to assess the parties’ competing claims without the benefit of an explanation from the judge as to the bases for his order denying the motion for reconsideration, including any findings that might be pertinent to the defendant's risk from COVID-19 and to his claim of ineffective assistance of prior counsel. For these reasons, we stayed the appeal to permit the judge to make findings and rulings with respect to the arguments raised in the motion to reconsider. In response, the judge issued a thorough and detailed memorandum (reconsideration memorandum), which was filed in this court on December 24, 2020. This panel invited further filings from the parties addressing the merits of the appeal in light of the reconsideration memorandum, and the defendant made such a filing. The Commonwealth elected to rest on its previous filings and the reconsideration memorandum itself.

Discussion. Where, as here, a motion to revise and revoke neither indicates the grounds on which it is based nor is supported by a timely-filed affidavit, the motion is not properly before the trial court. See Commonwealth v. DeJesus, 440 Mass. 147, 150-153 (2003); Commonwealth v. Coelho, 96 Mass. App. Ct. 901, 902-903 (2019). See also Committee for Pub. Counsel Servs. v. Chief Justice of the Trial Court (No. 1), 484 Mass. 431, 450-452 (2020). Accordingly, the defendant's motion to reconsider sought to invoke the rule that where the failure to file a proper motion to revise and revoke is due to ineffective assistance of counsel, “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.” Stubbs, 15 Mass. App. Ct. at 955.

The defendant's invocation of Stubbs raised the question whether, under the familiar standard of Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), prior counsel had indeed been ineffective in not filing a proper motion to revise and revoke. Accordingly, in his reconsideration memorandum, the judge reviewed each of the proffered grounds on which prior counsel assertedly could and should have filed a timely motion to revise and revoke. The judge concluded as to each ground that prior counsel had not been ineffective, and we see no abuse of discretion or other error in those conclusions.

a. COVID-19. The defendant argued that because the existence of COVID-19 was known when prior counsel filed the motion to revise and revoke on January 16, 2020, prior counsel was ineffective in not raising COVID-19 in that motion. More specifically, the defendant argued, prior counsel should have asserted that the committed sentence was unjust in light of the defendant's medical condition and the particular dangers that he would face if confined to a facility where he might be exposed to COVID-19. The judge concluded that there was no evidence, and no reason to think, that “an ordinary fallible lawyer,” Saferian, 366 Mass. at 96, would have anticipated in mid-January of 2020 the havoc that the pandemic would wreak in the Commonwealth beginning two months later.

On appeal, the defendant observes that a person suffering from what would later be identified as the first case of COVID-19 in the United States had reported to a hospital in the State of Washington on January 19, 2020. The defendant further observes that the ease of transmissibility of disease in prison was hardly a novel concept at that time. Even so, we agree with the judge that prior counsel did not perform deficiently in not raising a COVID-19 argument in the motion to revise and revoke. Counsel are not required to be clairvoyant.5

b. Other grounds. The defendant argued that prior counsel also performed deficiently by not including, in the motion to revise and revoke, arguments based on three additional grounds. These were (1) the postsentencing dismissal of certain motor vehicle-related charges, where the conduct underlying those charges was one of the bases for the finding of a probation violation; (2) the deaths of the defendant's aunt, daughter, and mother in 2018 and 2019, as having contributed to the substance abuse relapse that was another basis for the finding of a probation violation; and (3) a letter from a nurse practitioner attesting to the defendant's involvement in substance abuse treatment.

The judge's reconsideration memorandum cogently explained why prior counsel's failure to raise these three grounds did not constitute ineffective assistance. On appeal, the defendant does not challenge the judge's reasoning with respect to any of the three issues, and in any event we see no abuse of discretion or other error in the judge's conclusions.

The defendant does appear to argue that even if these three grounds would not themselves have caused the judge to revise and revoke the sentence, they could at least have been timely asserted, which would in turn have allowed the defendant, before the judge denied the motion in June of 2020, to file supplemental materials adding the effects of the COVID-19 pandemic in the Commonwealth and its prisons as a more persuasive ground to revise and revoke. Assuming without deciding that such a supplemental filing would have been a proper way to raise the COVID-19 issue, we are unpersuaded by the defendant's argument.6 It impermissibly relies on hindsight to explain how a timely filing asserting three insufficient grounds to revise and revoke might nevertheless “have accomplished something material for the defense.” Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977). “[T]actics which, from the vantage point of hindsight, can be seen to have failed do not amount to ineffective assistance unless manifestly unreasonable when undertaken” (quotation omitted). Commonwealth v. Sielicki, 391 Mass. 377, 379 (1984). We cannot say it was manifestly unreasonable for prior counsel not to have filed a motion with minimal likelihood of success merely to preserve an option to assert additional, but then-unknown, grounds for the motion, should they later materialize.

Order denying motion to revise and revoke affirmed.

Order denying motion for reconsideration affirmed.


3.   On March 20, 2020, the defendant (at this point proceeding pro se) filed a motion to reconsider the probation revocation, which was denied in a margin endorsement on April 10, 2020. This ruling is not before us.

4.   The defendant asserts that the supplemental memorandum was mailed for filing before the judge's ruling on June 19, 2020.

5.   The judge also concluded that even if prior counsel had been ineffective, and thus even if application of Stubbs allowed the filing of a new motion to revise and revoke making a COVID-19 argument, the judge would have denied such a motion on its merits because the sentence was just “in light of the facts as they existed at the time of sentencing,” quoting Commonwealth v. Tejada, 481 Mass. 794, 796 (2019). We need not reach the validity of this alternative ground for the judge's decision.

6.   It is not clear that the defendant made this argument to the judge; the argument is not discussed in the judge's reconsideration memorandum. We nevertheless address it briefly.

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