Com. v. Amirault

Citation612 N.E.2d 631,415 Mass. 112
PartiesCOMMONWEALTH v. Violet AMIRAULT & another. 1
Decision Date04 May 1993
CourtUnited States State Supreme Judicial Court of Massachusetts

Patricia M. Darrigo, Asst. Dist. Atty., for Com.

Juliane Balliro, Boston (Joseph J. Balliro with her), for defendants.

Before LIACOS, C.J., and ABRAMS, LYNCH, O'CONNOR and GREANEY, JJ.

ABRAMS, Justice.

The Commonwealth appeals from a judge's allowance of the defendants' motions to revise or revoke their sentences. On July 15, 1987, the judge sentenced each defendant to concurrent terms on multiple convictions of indecent assault and battery on a child and rape of a child. 2 On August 12, 1987, the defendants each filed a motion to revise or revoke the sentence pursuant to Mass.R.Crim.P. 29, 378 Mass. 899 (1979).

On June 24, 1992, the defendants requested that their rule 29 motions be heard. On October 1, 1992, the trial judge held a hearing and allowed the defendants' motions. The judge revised their sentences to 64 months with the remainder suspended for seven years under the supervision of the probation department. The Appeals Court stayed the orders pending appeal. We allowed the Commonwealth's application for direct appellate review. We vacate the judge's orders, and order the original sentences be reinstated.

The Commonwealth's right to appeal. The defendants argue that the Commonwealth has no right to appeal the allowance of a motion brought pursuant to rule 29. Rule 29(a) states: "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." The defendants suggest that the omission of a specific right to appeal from the language of G.L. c. 278, § 28E (1990 ed.), indicates a legislative intention to preclude the Commonwealth from appealing a judge's order on a motion to revise or revoke. In addition, the defendants claim that the Commonwealth may not appeal under G.L. c. 278, § 28E (1990 ed.), which states: "An appeal may be taken by and on behalf of the commonwealth by the attorney general or a district attorney from the superior court to the supreme judicial court in all criminal cases from a decision, order or judgment of the court (1) allowing a motion to dismiss an indictment or complaint, or (2) allowing a motion for appropriate relief under the Massachusetts Rules of Criminal Procedure." The defendants argue that motions under rule 29 are not motions for appropriate relief. We reject that argument.

In Commonwealth v. Therrien, 383 Mass. 529, 420 N.E.2d 897 (1981), the Commonwealth sought to challenge a judge's order granting a defendant's motion for a finding of not guilty, pursuant to Mass.R.Crim.P. 25(b)(1). The Commonwealth both appealed the judge's order and brought a complaint for relief under G.L. c. 211, § 3. We dismissed the complaint under G.L. c. 211, § 3, because we held that G.L. c. 278, § 28E, gave the Commonwealth the right to appeal from the allowance of Mass.R.Crim.P. 25(b) motion. Id. at 534, 420 N.E.2d 897. We noted that the reference in G.L. c. 278, § 28E, "to a motion for appropriate relief must be read more broadly than to refer only to pretrial motions." Id. at 535, 420 N.E.2d 897. We determined that, in common parlance, motions under rule 30, requesting postconviction relief, were motions for appropriate relief under G.L. c. 278, § 28E, and that, therefore, a motion for a required finding of not guilty under rule 25 also would be such a motion. 3 Cf. Commonwealth v. Yelle, 390 Mass. 678, 684-685, 459 N.E.2d 461 (1984) (Commonwealth has no right to an interlocutory appeal from the allowance of a motion to admit evidence).

Then, in Commonwealth v. Layne, 386 Mass. 291, 435 N.E.2d 356 (1982), we allowed the Commonwealth to appeal a judge's revision or revocation of sentence, although we did not discuss the statutory authority for such an appeal. We now hold that the allowance of a defendant's rule 29 motion to revise or revoke his or her sentence is a "motion for appropriate relief under the Massachusetts Rules of Criminal Procedure." Consequently, G.L. c. 278, § 28E, allowing the Commonwealth to appeal "a decision, order or judgment of the court ... (2) allowing a motion for appropriate relief under the Massachusetts Rules of Criminal Procedure" is applicable. 4 Therefore, the Commonwealth has the right to appeal the judge's allowance of the rule 29 motions. 5

The merits. On May 6, 1992, LeFave had her first hearing before a parole board panel. Her request for parole was denied unanimously. Her appeal to the panel was denied on June 16, 1992, and LeFave failed to pursue any further administrative remedies. On June 4, 1992, Amirault had her first hearing before a parole board panel and her request for parole was denied unanimously also. She did not appeal to the panel or pursue any other administrative remedies. On June 24, 1992, the defendants asked the trial judge to rule on the rule 29 motions they had filed on August 12, 1987, the time of their convictions. 6 The judge scheduled a hearing at which he noted: "It would be the usual intention of a sentencing Judge to intend the Defendants to serve two-thirds of the sentence imposed, which would be 64 months, unless there was something about their service of their sentence which made them subject to a violation and led the [p]arole [b]oard to denying it, but policy considerations would not be a factor." The judge ruled that he had intended at the time of sentencing to sentence the defendants to 64 months. Consequently, he allowed their motions and revised the sentences to 64 months served with the remainder of seven years suspended under the auspices of the probation department.

The Commonwealth asserts that the judge improperly considered events taking place after sentencing when he considered and then allowed the rule 29 motions. 7 This, the Commonwealth suggests, was a usurpation of the role of the parole board which violates art. 30 of the Massachusetts Declaration of Rights, the doctrine of separation of powers. 8 We agree.

The granting of parole is a discretionary act of the parole board. Lanier v. Massachusetts Parole Bd., 396 Mass. 1018, 1018, 489 N.E.2d 670 (1986). Woods v. State Bd. of Parole, 351 Mass. 556, 559, 222 N.E.2d 882 (1967). It is a function of the executive branch of government. Stewart v. Commonwealth, 413 Mass. 664, 669, 603 N.E.2d 912 (1992). Baxter v. Commonwealth, 359 Mass. 175, 179, 268 N.E.2d 670 (1971). By allowing a motion to revise or revoke sentences when the parole board does not act in accordance with a judge's expectations, the judge is interfering with the executive function. The judge cannot nullify the discretionary actions of the parole board. 9

The purpose of review under rule 29(a) is to "permit a judge to reconsider the sentence he has imposed and determine, in light of the facts as they existed at the time of sentencing, whether the sentence was just [emphasis in original]. Commonwealth v. Sitko, 372 Mass. 305, 313-314, (1977)." Commonwealth v. Layne, supra, 386 Mass. at 295, 435 N.E.2d 356. See also Commonwealth v. Foley, 17 Mass.App.Ct. 238, 245, 457 N.E.2d 654 (1983). At the time of sentencing, the judge imposed sentences that he noted were within the guidelines. In considering requests for revision of those sentences under rule 29 the judge may not consider the denial of parole. 10 See Commonwealth v. Layne, supra, 386 Mass. at 295, 435 N.E.2d 356; Commonwealth v. Sitko, supra at 314. See Mass.R.Crim.P. 29(a). The judiciary may not act as a super-parole board.

We vacate the judge's orders and remand to the Superior Court where the original sentences are to be reinstated.

So ordered.

LIACOS, Chief Justice (dissenting).

The court today enlarges its prior decision permitting the Commonwealth to appeal the allowance of certain posttrial motions under the 1979 amendments to G.L. c. 278, § 28E (1990 ed.). See Commonwealth v. Therrien, 383 Mass. 529, 420 N.E.2d 897 (1981). 1 Thus, the court holds that the Commonwealth may appeal the allowance of a motion to revise or revoke a sentence brought pursuant to Mass.R.Crim.P. 29, 378 Mass. 899 (1979). I adhere to the view that our Legislature did not intend the 1979 "housekeeping" changes to § 28E to alter the long-established practice of allowing the Commonwealth to appeal from pretrial motions only. See id., 383 Mass. at 539-542, 420 N.E.2d 897 (Liacos, J., dissenting). I also believe that the court today misapplies the principles announced in Therrien, from which decision I dissented, by reading into § 28E another rule of law which the drafters of that statute never contemplated. Accordingly, I dissent.

Section 28E allows the Commonwealth to appeal the allowance of "a motion for appropriate relief under the Massachusetts Rules of Criminal Procedure." In Therrien, the court construed these words to encompass a postverdict motion for a required finding of not guilty brought pursuant to Mass.R.Crim.P. 25(b), 378 Mass. 896 (1979). In support of its conclusion, the court noted that Mass.R.Crim.P. 30, 378 Mass. 900 (1979), expressly allows the Commonwealth to appeal the allowance of a motion for a new trial or a motion for release from confinement imposed in violation of the laws of the Commonwealth. The court found that, "[i]n common parlance, such [posttrial] motions are motions for appropriate relief." The court in Therrien reasoned that, because a criminal defendant may present the same legal questions under either rule 25 or rule 30, it ...

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