-: SJC 13294 Commonwealth V Clifford M. Martin.
-: Okay. Attorney Stiles, good morning.
-: Good morning Justices.
My name is Attorney Ethan Stiles,
and I'm here on behalf of Clifford Martin this morning.
And we're here today because Mr. Martin
had a sentence appeal after his conviction.
And the Appellate Division, at first, gave him one sentence
and then, believing that it was an illegal sentence,
gave him another, and we challenged that.
-: Wait, wait, was it an illegal sentence
or illegally imposed?
-: Well, the Appellate Division believed
that the sentence it originally gave
was an illegal sentence,
and that it was below the statutory minimum.
-: Our argument here today is twofold.
First, that the statute does permit
this kind of sentence,
and even if it didn't,
the Appellate Division took too long to correct it.
So let me start by looking at the...
We must look at the statute,
and the statute has two sentences
that relate to the punishment for Mr. Martin's crime.
And the first sentence is the one
that everyone seems to focus on,
but it cannot be read in isolation.
It must be read with the second sentence.
And that has been overlooked
by more than one jurist and party
in this proceeding.
But it does say, except in the case of conviction
for a first offense of this violation,
the imposition or execution of the sentence
shall not be suspended and no probation
or parole shall be granted
until the minimum imprisonment,
herein provided, shall have been served.
So in this case, you say,
Well, isn't the minimum sentence a five year term
if the judge sentences him to imprisonment?
And I suggest that it is not a minimum term,
as the court has defined it
under Commonwealth versus Rossetti,
because there is the second sentence here
which permits a judge to lower
the actual minimum amount of time he has to serve-
-: Can I ask you about the double jeopardy component?
Assuming it's an illegal sentence,
can I ask you about the double jeopardy component to it?
Is a judge bound by Rule 29,
or could the Appellate Division
fix things on their own, as opposed to a party?
-: Well, the Appellate Division certainly did proceed
in a manner not unlike a Rule 29 sentence,
where they imposed a sentence,
later believed that there was an issue with the sentence
and then had a new hearing to take action
to correct the sentence.
And so they did function like Rule 29.
And I'm not sure that the appellate courts
have ever particularly determined
whether Rule 29 applies to it or not.
-: Because we talked about expectations
in Selavka, right?
-: I'm sorry, Justice-
-: We talked about expectations of finality
on double jeopardy in Selavka,
what we've said in that case.
And I'm just wondering
where your client's double jeopardy claim
intersects with the court's inherent authority
to fix its own mistakes?
-: I would suggest, Justice Gaziano,
that the 60 day limit applies either by Rule 29
or by this court's holding in the CPCS cases back
during the beginning of the pandemic.
It applies to Massachusetts.
So essentially, a court has 60 days
to take action on its sentence and no more.
Because, if the Justices may recall,
in the CPCS cases there was an issue,
should we extend or allow
beyond the 60 day period for Rule 29 cases
so that persons who are in danger of COVID,
but didn't quite make the cut,
could file their sentences and perhaps get released?
And the court said,
No, we do not have the authority to do that.
That will be cutting into either the judicial branch
or the legislate...
I'm sorry, the executive or the legislative branch to set-
-: So your position is it cuts both ways,
for both to reduce the sentence
and to increase the sentence?
That limitation?
-: Well, to increase the sentence, definitely.
To reduce the sentence, that would depend
on what the issue of it was.
-: Well obviously, there's no double jeopardy issue
to reduce the sentence-
-: No.
-: But I'm just wondering
if we need to be consistent in that ruling.
-: I believe so.
I believe that the court should be able to say that,
in this commonwealth, if the sentencing authority
doesn't catch it in 60 days, it's too late.
And I would note, something that I didn't put in my-
-: Even if it helps your client?
-: Oh no, not if it helps the client, only if it hurts.
(all chuckling)
But I would note something
that I didn't put in my brief,
is that a short time period
for correcting or amending mistakes,
you know, 60 days, it may seem long,
but it's not necessarily.
For example, the federal cognate-
-: Well, have any position as to whether or not
it should be less than 60 days,
given that the statute
authorizing the Appellate Division to operate
says that its decisions shall be final?
-: I did make an argument in my brief, Justice Wendlandt,
that does speak to that
and that refers to the sitting-
-: But what do you say now?
-: Well, I say that 60 days
would be an appropriate period of time.
But there's also, if you wish to consider,
there's the argument about the sitting,
namely that the appellate court, it meets once a year.
It has a sitting,
it meets in a particular period of month
to hear all the cases from the counties
that have arisen since it last met.
It hears them, it decides them, and then it moves on.
Now, that's sort of an old time relic
of the way courts used to operate
and older cases have held
that once it's no longer within its present sitting,
it has no authority to act.
So, that is an alternative.
Although, I would suggest,
the concept of reasonable time is simply too-
-: I'm sorry, when you say that is an alternative,
you mean a year?
-: No. Well, no, I meant you have your hearing,
you have your new sentence,
and the court finishes its business
and then that would be another break on the process.
They couldn't revisit it,
because it would no longer be its current sitting.
It will be the next.
And the next sitting would be too late
under the older ways
that the court used to consider sittings.
So I've argued that,
but if that seems to be a little too constrained,
then the 60 day period at least has the-
-: I'm sorry.
So just to put a fine point on it,
you're speaking so quickly that I can't hear that fast.
Attorney Stiles: I'm sorry.
-: So you're saying that the Appellate Division
could correct during the sitting?
-: Yes.
-: Okay.
-: Now, the sittings tend to be about 10 to 15 days
so the time period is fairly short,
at least my understanding of the practice,
having been there a couple of times.
But when I talk about that particular period of time,
say, 15 days or thereabouts,
this is not a unique circumstance.
For example, as I was about to say,
that federal Rule of criminal procedure 35a says,
that for correcting clear error
within 14 days of sentencing,
the court may correct a sentence that resulted
from an arithmetical, technical, or other clear error.
So it's not like Massachusetts is unique in this regard
in having a short period of time to correct sentences
if it may be disadvantageous to the defendant.
-: How do we weigh the double jeopardy issue
compared to your case versus Selavka where,
in one case, the sentence was already served
and in this case, your client was still
within the incarcerated period of the sentence?
How do we weigh that?
-: Well, I think we look at it
in a little different light, Justice Gaziano,
because he had the sentencing by the trial judge,
he filed his notice of appeal of sentence,
he waited for a particular period of time
and then he had another sentencing
by the Appellate Division.
And after that, he got a lower sentence
and obviously he was pleased, as you might expect,
and things were good.
And then about six months later,
he gets something else that says,
"Oh, we gotta re-sentence you, we made a mistake."
So there, between the two sentences
of the Appellate Division,
there's the double jeopardy issue.
He has to come back
and they ultimately imposed a higher sentence.
-: But he's still in jail the whole time.
-: Yes, that is correct.
But he's received a sentence,
and we suggest that either it's too long
or the sentence was illegally imposed.
Which, I believe the case law
that this court has developed
over the past 20 or 30 years,
suggests there is no substantive difference
between an illegal and illegally imposed sentence.
And we talk about an illegal in the sense
that it was above the statutory maximum
and illegally imposed,
is that there were inappropriate considerations
in the sentence,
but still it remains that there is some troubling issue
with the imposition of the sentence.
-: You make a point that a ruling contrary to your position
might chill defendant's interest
in going to the Appellate Division
to pursue a lower sentence
in the sense that well, it's a unilateral decision
and if the results could be
that a sentence could be changed
in a way that it couldn't be changed
if you didn't go to the Appellate Division,
that that might chill going to the Appellate Division.
Do you wanna elaborate on that?
-: Well, if I understand your question, Justice Lowy,
obviously defendants know
that there is an inherent risk
to go to the Appellate Division.
-: Sentence can be increased.
-: Yeah, sentence can be increased.
But the risk they just take
is that once they get their hearing
and they get their new sentence, that's it.
The proceedings are over,
they don't expect to have to come back
six months later or a year later
or whenever this nebulous reasonable time is
to have to fight it again.
-: I thought your point was if he hadn't gone
there wouldn't have been the issue.
-: That's correct, but in a sense will be-
-: You're aware that DOC corrects these things
all the time?
That that DOC will every now and then say,
hey, legal counsel from DOC will say,
this was wrong. You can't do this by statute.
And sentences get corrected all the time
as a result of that.
-: Well they can, well the mittimus from the trial court,
governs what the sentence is going to be.
And even if that mittimus is incorrect,
then the DOC must follow it or must try
to take some kind of alternate procedure.
Now this court has, in prior instances,
has permitted sentences that are clearly illegal
under the statute, to be the sentence
because of a failure to act in a reasonable
within the 60 day period for example.
But this particular case,
I argue that the statute in this case,
the sentence in this case,
the Appellate Division sentence,
the four to six years, is a legal sentence.
And that is because the second sentence permits the-
-: Let's say we don't agree with you on that point,
but your position is
there's a hard and fast 60 day time limit
to correct an illegal sentence
if we think it's illegal.
-: Either there should be the hard and fast 60 days
or there is the end of the term as-
-: Oh, okay.
-: And neither those were met in this case.
But when we look at the second sentence
of this statute, we must understand
that it does permit a wider range
of sentencing than the first sentence suggests.
Because first of all, this is a first offense
and second it talks about probation or parole
and it permits probation,
it would permit a sentence of straight probation.
It would per [Inaudible] 1993 permitted a sentence
of a suspended sentence or a split sentence.
But we don't have that anymore.
But we still have-
-: It wouldn't allow a suspended or split,
you can't have those on state prison sentences.
-: Prior to 19.. After 1993 yes.
-: You have to have the truth in sentencing.
-: But this statute was written in 1974, so-
-: Yeah, I'm just saying there couldn't be
a suspended or a split.
-: Not anymore.
So, but we do have something that
is less than the five year minimum,
which is the ability to set a lower minimum term
to permit parole eligibility
before the five year period.
And that is what the Appellate Division did in this case.
And there's nothing wrong with that
under this particular statute.
And this statute is essentially equivalent
to the statute that the Court considered
in Commonwealth versus Lightfoot
and Commonwealth versus Rodriguez.
And even in Rossetti the court said
that those types of statutes,
they stand on their own merits
because they have distinct language
that permits this kind of sentencing arrangement.
Whereas the statute that was considering in Rossetti
that did not, that did not, it was much much more strict.
-: How was it much more strict again?
-: Well in Rossetti the statute
which was a failure to register subsequent
it was being considered,
what did have language that said,
no probation, no parole until the min...
No good time or else words to that effect
until the minimum had been served.
-: And this one has all sorts of options
other than a sentence?
-: That's that's correct.
-: But if there is a sentence,
doesn't it still have to be correct.
-: Not less than five.
-: And it is and I believe that this sentence
is a correct one.
-: It doesn't fit within those parameters
of not less than and more than.
-: Well not less than, and not more than does apply,
But essentially if you look at the actual interplay
of the statute,
the only not less than really applies
for second and subsequent offense if so charged,
because that's the way it reads.
I mean obviously the court has to work
with what it's given by the legislature,
even if that language may not
quite reflect contemporary values,
it still may consider if it's permissible.
And I would suggest that under this statute,
any sentence from the one year, 10 year,
as long as there's at least a five,
somewhere inside of that range,
that is a permissible sentence.
-: So, can you just tell me in your last 35 seconds,
what moment did jeopardy terminate?
-: Jeopardy terminated with the November
Appellate Division sentence.
Once he had been sentenced by that court
back in November and given his lower sentence,
that's when his jeopardy became final.
-: Well it terminates in your position
after the 60 days runs
and or the decision of the Appellate Division.
-: Yes. That's-
-: It attaches, but it terminates.
-: Yes, the attachment terminates.
So that's when it starts,
and within 60 days at the max, that's when it ended.
-: His finality expectation is after that 60 days, right?
-: That's correct.
-: Or the sitting?
-: Or the sitting, which is a shorter period of time.
-: Okay.
-: If there are no further questions from from the Court,
I'll be happy to rest on my brief.
-: Thank you.
-: Thank you very much.
-: Okay, attorney Campbell.
-: Good morning. May it please the court.
Julianne Campbell on behalf of the Commonwealth.
I'm here asking that this court
affirm the single Justice's denial
of the defendant's 2-11-3 petition.
-: When does Jeopardy terminate?
-: Certainly and Your Honor,
if I could first just acknowledge
the victim's family I do believe
was trying to be present today
and I'm not sure if they've made it yet, but if not,
I'm sure they're watching online.
With respect to when jeopardy terminates,
respectfully, that is a fact intensive question
for each case.
And I would point this Court's attention
to Commonwealth v Ellsworth most recently in 2020
and Commonwealth v Selavka.
And in both those cases-
-: In Selavka we said that there's a rule, right?
that even an illegal sentence
will become final after 60 days, no ifs, ands, or buts.
It's not a fact dependent inquiry, is it?
-: It is, your Honor. And-
-: Does Selavka say that?
-: Sure. So what Selavka says,
and the issue in Selavka is the long delayed correction
of the illegal sentence.
What Ellsworth-
-: With Selavka, the defendant was notified seven months
after he started serving the sentence.
And here the defendant was notified six months
after the correction by the Appellate Division.
Why is 60 days good enough for the defendant
in Selavka but not here?
-: Sure. So, I disagree that it's a 60 day timeline.
I recognize what Selavka says,
but if I could respond to the factors
that are outlined in Ellsworth and assess-
-: But Ellsworth was before the 60 days, right?
So I think, let's deal with Selavka statement
that after 60 days the interest and finality
has "crystallized."
-: Sure.
So what Selavka says,
is that it's within the Rule 29 time period
and my position is relying on Callahan,
which is cited in my brief,
although I'm not sure I gave the correct citation.
I have it if the court needs it.
It's 419 mass 306.
But the specific language is that the time expired
by the Rule 29 period.
And in that case this court cautioned the Commonwealth
that the Commonwealth should move within the 60 days.
The Commonwealth's position is relying on Callahan,
Rule 29 explicitly does not apply to the Appellate Division
and the Appellate Division instead, I would suggest,
has the inherent authority to correct
an illegal sentence and specifically-
-: Event tough the statute says the Appellate Division's
re-sentencing shall be final.
There's no revise and revoke from the Appellate Division.
-: That's correct.
But this court has heard appeals
from an Appellate Division sentence.
-: But don't they go through the single Justice.
-: That's correct, via a 211-3 petition as was done here.
And specifically, if I could just return to Callahan,
the language that I'm relying on is,
furthermore, had the motion been timely,
the judge would not have had the authority
to revise the sentence imposed by the Appellate Division.
The order of the Appellate Division is final.
Any appeal from the sentence
is analogous to an appeal from any judgment or order
in that once a party enters appeal,
the judge issuing the order
from which an appeal is taken is divested of jurisdiction.
Rule 29 I would suggest simply by this Court's rulings,
does not apply.
And so the Rule 29 timeline
should not limit the correction of an illegal sentence.
-: Let suppose the Appellate Division three years later
said, oops, we made a mistake.
We were looking at our records
and we think that the sentence was illegal
and it should be five years.
Can they do this?
-: No.
And it's not my position
that the Appellate Division can do that.
-: So I guess it's Justice Wendlandt's question,
So then when does it crystallize?
If Rule 29 doesn't apply
to Appellate Division or judges, only parties,
when is the magic date?
-: And that is why my response is
that it is fact intensive,
because what this court has outlined in Ellsworth
is that the factors that are to be considered are
whether the sentence was illegal.
Here it was.
Whether the sentence was fully served.
Here it was not.
The timeliness of a motion to revoke.
One was not filed,
this was sua sponte by the court's recognition
of its own error.
And whether a motion to stay the execution
of the sentence had been filed.
And obviously none was filed here,
as the defendant had already began
serving his sentence.
And it's my position that under
the double jeopardy considerations
outlined by this Court,
that here, where the correction was made,
I acknowledge it's six months,
but bearing in mind how the Appellate Division meets,
it was at the immediate next sitting.
-: How do we assess timeliness in this instance?
So I assume your position wouldn't be
if someone was serving a 20 year sentence
and they think they're going to get outta jail
and on year 19 a judge says, oops, I made a mistake,
or some successor judge and then and they say,
you got another three years left.
-: That would certainly not be timely.
-: Okay. So then how we're supposed to write a rule
that says what this is supposed to say?
-: Sure.
-: Other than Rule 29 strictures.
-: Sure.
So what I would say is first
that I'm not asking this court to adopt a bright line rule,
though I know this court is...
I think that would be helpful to most practitioners.
I'll say that.
I'm not asking for that.
-: Well, it's easy for practitioners
because you got Rule 29.
This is for Judges and Courts.
-: But had the Commonwealth,
had the Commonwealth been aware of the error then,
could not file, I would suggest,
could not file a motion to revoke,
because the Commonwealth's authority to do so
is via Rule 29, which does not apply
to the Appellate Division.
-: I appreciate that Rule 29 doesn't apply,
but we're dealing with expectation.
-: Certainly.
-: And so if it's not 60 days,
60 days still is out there, it's palpable,
It's implicit in expectation.
How do we address that?
-: So what I would suggest is,
I think frankly this case probably poses the limits
of what would be appropriate.
Here he was sentenced to say the four to five,
four to six year sentence.
He had not even completed 25% of that sentence
and it was corrected at the very next sitting.
It would be a different position,
certainly, if the defendant had a six month sentence,
was nearing the end
and then the Appellate Division corrected it.
I think double jeopardy would apply.
But in this context,
given that he was sentenced to an illegal sentence,
which he has no expectation of finality in,
and given that it was corrected six months
into what was a four to six year sentence,
I'd suggest that this does not offend principles
of double jeopardy in this case.
-: So if you don't appeal to the Appellate Division,
you get 60 days and then your interest in finality
crystallizes under Selavka.
But if you go to the Appellate Division and win,
it's longer, And it depends on the facts,
the totality of the circumstances.
-: I disagree. I think if you have-
-: I thought that was your position.
-: No, my position is an illegal sentence
is what suggested.
I don't assume that the Appellate Division sentence-
-: Yeah, Let's change the hypothetical
that after an illegal sentence is imposed
and 60 days have passed under Selavka,
you have an interest in finality.
But if you've appealed to the Appellate Division,
and also get the illegal sentence,
your interest in finality is a function
of the totality of the circumstances.
That's the Commonwealth's position.
-: I think so.
As the case law has been decided thus far.
Yes, that is my position.
-: You could get a higher sentence.
-: Yes.
-: You've put your sentence in play
when you go at the Appellate Division,
you could get a higher sentence-
-: That's correct.
-: At the Appellate Division.
-: That's correct.
Unless the court has further questions
on the Rule 30 issue that my brother briefed
or the legality of the sentence itself,
I'm happy to rely on my brief.
-: Can I just ask what the reasoning is behind saying,
it depends on how much of the sentence you've served.
-: Sure. So again, I'm turning
to the factors of Ellsworth.
I think where the considerations by this court
have been outlined as to whether the sentence
has been fully served
and the timeliness of a motion to revoke,
But in this case, I would suggest
that the sua sponte decision of the court
to correct the illegal sentence,
I think, it is in play,
because just to take the obvious hypothetical
of 19 years into a 20 year sentence,
I can't deny that someone would have an expectation
that they would be getting out in 20 years.
-: Yeah, but wouldn't that person have
the same expectation at the beginning of their sentence,
anticipating that they would be out
when they were told they'd be out
when they were sentenced?
-: That is certainly true.
However, that's also true with the interplay of Rule 29,
the 60 day limit in the trial court.
And yet this Court has extended it to the 60 days.
Here I'm asking this court to consider
the timeliness in conjunction of the sentence as a whole,
which is an appropriate factor.
And with respect to that it's only six months
into a longer sentence,
I do think that that expectation of finality
is reduced in that circumstance.
Given that he sought an Appellate Division sentence
at the time it was an illegal sentence,
and you have no expectation of finality
in an illegal sentence.
However, this court's language has put the 60 day time limit
that's not from the Federal considerations
of double jeopardy.
And I acknowledge that that Rule 29 60 day limit
applies to the trial court.
I'm just asking that in this case
where there has been no prior application
of Rule 29 time limit to the Appellate Division,
that this court find that it doesn't violate
principles of double jeopardy.
-: And again, this is just about what the single Justice
here in this court decides. Right?
Th Rule that you're proposing for us, is the Rule that...
-: Candidly, I'm not asking the Court
to adopt a bright line Rule on this topic-
-: No, you're... Yeah, you're wide ranging.
Oh, look at that.
-: But I do think that should the Court
look to find one, I think this case
sets appropriate parameters in that,
like I said, it was the next sitting,
it wasn't three years into his sentence
that they caught this error.
-: Okay.
-: I'm sorry if Justice Cypher had a question.
-: Oh yeah, I do have a question.
And that is that, assuming we agree with you,
what sentence, what's the last line of the opinion?
-: I'd suggest that the appellate...
Well, I'd ask this court to affirm
the single Justice's denial,
but the sentence of five to six years
is wholly appropriate
when the Appellate Division corrected.
-: All right.
-: The four to six years sentence.
-: If we agree with your opposing counsel,
what's the last line of the opinion?
-: I believe he's asking for the four to six year sentence.
And so if you agree with him,
I suspect that's what-
-: We would be imposing in an illegal sentence.
-: It does seem that way.