Com. v. Barclay

• Decision Date: 07 March 1997
• Citation: 424 Mass. 377,676 N.E.2d 1127
• Parties: COMMONWEALTH v. Peter BARCLAY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1127

676 N.E.2d 1127

424 Mass. 377

COMMONWEALTH v. Peter BARCLAY.

Supreme Judicial Court of Massachusetts,

Norfolk.

Argued April 4, 1996.

Decided March 7, 1997.

Robert C. Cosgrove, Assistant District Attorney, for the Commonwealth.

Donald A. Harwood, New York City (Kevin J. Reddington, Brockton, with him) for defendant.

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

O'CONNOR, Justice.

On July 1, 1987, a Norfolk County grand jury indicted the defendant, Peter Barclay, for the murder of Mark Steven Kaufman. On February 22, 1988, the defendant pleaded guilty to so much of the offense as alleged manslaughter, and on March 30, 1988, the judge sentenced him to from fifteen to eighteen years to be served at the Massachusetts Correctional Institution at Cedar Junction.

The defendant timely filed a motion to revise or revoke his sentence pursuant to Mass. R.Crim. P. 29, 378 Mass. 899 (1979), accompanied by an affidavit in support of the motion. Rule 29(a) provides, in pertinent part:

"Revision or Revocation. The trial judge upon his own motion or the written motion of a defendant filed within sixty days after the imposition of a sentence ... 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."

On July 26, 1994, more than six years after filing this motion, defense counsel wrote a letter to the sentencing judge in which, for the first time, he requested a hearing on the motion and stated the following:

"I am well aware that the Court is not in a position to legally consider things that occur or happen to inmates while incarcerated but I feel that it is important for the Court to know when the criminal justice system is successful. I say this somewhat tongue in cheek because the end result is to request that Your Honor would consider the Motion to Revoke and Revise. I feel very strongly about this and feel that perhaps [the prosecutor] may even acquiesce in light of the fine individual that the defendant has shown himself to be."

Defense counsel then specified the defendant's accomplishments while incarcerated. In addition to recounting the defendant's favorable prison reports, defense counsel stated that, while incarcerated, the defendant had received a Bachelor of Science degree, summa cum laude, and a Master of Liberal Arts degree from Boston University, and that he was scheduled to commence coursework at Boston University's School of Theology. The Commonwealth did not object. Indeed, at the hearing on the motion, the assistant district attorney stated, "Your Honor, the Commonwealth's position after reviewing the material that [defense counsel] submitted is that his request is not an unreasonable one. I would mention to the Court that I did speak with the mother of the victim on the telephone yesterday. Also, she faxed a letter which I have given to the Court which indicates her very strong feelings in opposition to any reduction. I think the letter conveys it better than I could now what her feelings are. It is the Commonwealth's position that given the defendant's accomplishments while he has been in jail, this is not an unreasonable request." On March 1, 1995, after hearing the revise and revoke motion, the judge ordered the defendant's sentence reduced to from twelve to fifteen years. The sentence revision, in combination with other credits the defendant earned while incarcerated, entitled him to be discharged on May 5, 1995.

On May 2, 1995, two months after the rule 29 revise and revoke motion was allowed, and more than seven years after sentence was imposed, the Commonwealth filed a motion for reconsideration of the decision to revise the defendant's sentence, suggesting that the judge may have relied on improper considerations in reducing the sentence. The judge denied the Commonwealth's motion. The Commonwealth then moved for leave to file late an appeal from the order on the defendant's rule 29 revise or revoke motion, and for a stay of the order. A single justice of the Appeals Court allowed the Commonwealth's motion notwithstanding her conclusion that the Commonwealth's failure timely to file a notice of appeal had been inexcusable. Relying on Tisei v. Building Inspector of Marlborough, 3 Mass.App.Ct. 377, 379, 330 N.E.2d 488 (1975), she reasoned that the appeal concerned a question of law deserving judicial review and that denial of the motion would leave the Commonwealth without recourse on a matter of public importance.

"In the case of motions for leave to file an appeal late ... a showing of a meritorious case is required.... Mass. R.A.P. 14(b) was [not] intended to dispense with the judicially 'established practice not to grant applications for ... [ ... late claims of appeal] ... unless it appears that the petitioning party has a case meritorious or substantial in the sense of presenting a question of law deserving judicial investigation and discussion.' " Tisei v. Building Inspector of Marlborough, 3 Mass.App.Ct. 377, 379, 330 N.E.2d 488 (1975), quoting St. Nicholas Russian Benefit Soc. Inc. v. Yaselko, 279 Mass. 81, 85, 180 N.E. 721 (1932). "A meritorious appeal is 'one that is worthy of presentation to a court, not one which is sure of success.' " Jones v. Manns, 33 Mass.App.Ct. 485, 493 n. 9, 602 N.E.2d 217 (1992), quoting General Motors Corp., petitioner, 344 Mass. 481, 482, 182 N.E.2d 815 (1962).

We have said that the public has a right to expect this court to correct any error or abuse of judicial discretion in sentencing revisions. See Commonwealth v. Cowan, 422 Mass. 546, 547, 664 N.E.2d 425 (1996); Commonwealth v. Amirault, 415 Mass. 112, 115 n....