Commonwealth v. Tredane Purdy.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-1072

COMMONWEALTH

vs.

TREDANE PURDY.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Tredane Purdy, appeals from the denial by a

Superior Court judge of his motion to revise and revoke his

sentence, or in the alternative for release from unlawful

restraint. The defendant argues that the sentence was based on

inaccurate information because at sentencing defense counsel

gave the judge an incorrect calculation of the defendant's

credits for "good time," which was ineffective assistance of

counsel, and the prosecutor improperly told the judge that the

defendant's criminal record qualified him for a level three

sentencing enhancement under the armed career criminal act

(ACCA), G. L. c. 269, § 10G (c). Because the judge made clear
that she sentenced the defendant on proper considerations, we

affirm.

Background. On November 14, 2014, the defendant pleaded

guilty to numerous charges arising out of an armed home

invasion. In accordance with the parties' plea agreement, the

plea judge imposed a level two sentencing enhancement under the

ACCA, G. L. c. 269, § 10G (b), sentencing the defendant to ten

to twelve years in State prison, with three years' probation

thereafter.

The defendant filed a motion to vacate and correct his

sentence, which a Superior Court judge denied. On appeal, a

panel of this court vacated the denial, ruling that one of the

predicate offenses on which the plea judge based the level two

sentencing enhancement was assault and battery by means of a

dangerous weapon, which is not categorically a crime of violence

as defined in the ACCA, see Commonwealth v. Ashford, 486 Mass.

450, 466-468 (2020), and the Commonwealth failed to prove that

it was one in this case. Commonwealth v. Purdy, 99 Mass. App.

Ct. 1125 (2021). The panel remanded for the defendant to be

resentenced with a level one ACCA sentencing enhancement. Id.

On remand, another Superior Court judge conducted two

hearings on the defendant's resentencing. At the first hearing,

the defendant's counsel told the judge that in calculating his

wrap-up date, the defendant would receive credit for "about 54

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days off every year is my understanding." The judge commented

that if that were the case, on a sentence with a higher number

of twelve years, the defendant's wrap-up date would be at ten

years. The judge continued the matter, saying that she wanted

to review the record including the transcript of the plea

hearing.

At the second hearing about a week later, the judge said

she had considered the parties' arguments and recommendations, a

supplemental sentencing memorandum from the defendant, and the

plea colloquy. Applying an ACCA level one sentencing

enhancement, the judge resentenced the defendant to nine to

twelve years in State prison, nunc pro tunc to November 14,

2014, with 744 days' jail credit. Both the judge and clerk

informed the parties that the Department of Correction would

calculate any credits due for good time.

About thirteen months later, the defendant moved to revise

and revoke his sentence, Mass. R. Crim. P. 29 (a) (2), as

appearing in 489 Mass. 1503 (2022), or in the alternative for

release from unlawful restraint, Mass. R. Crim. P. 30 (a), as

appearing in 435 Mass. 1501 (2001). Represented by new counsel,

the defendant argued that the lawyer who had represented him at

resentencing gave the judge an inaccurate calculation of the

defendant's good time and wrap-up date, and that the judge must

have relied on those calculations because the judge had said,

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"[I]f you get the numbers and they're not right come back to me

and we'll fix it." The same judge who had resentenced the

defendant denied the motion, stating explicitly that she had

based the sentences on the "egregious nature of the facts," not

on the defendant's parole eligibility or his counsel's wrap-up

date calculations, and her reference to correcting the "numbers"

pertained to the 744 days' jail credit, "not good time credit."

The defendant filed a motion to reconsider, which the judge

denied.

Discussion. 1. Motion to revise and revoke or for release

from unlawful restraint. The defendant contends that the judge

abused her discretion in denying his motion to revise and revoke

or for release from unlawful restraint, because at his

resentencing the judge was "misled" about the length of the

sentence he would serve.

We review the denial of a motion to revise and revoke,

Mass. R. Crim. P. 29 (a) (2), or for release from unlawful

restraint, Mass. R. Crim. P. 30 (a), for an abuse of discretion

or error of law.1 See Commonwealth v. Tejeda, 481 Mass. 794,

795-796 (2019) (motion to revise and revoke under rule 29 [a]);

1 We note that the record before us states that the
defendant's wrap-up date on the committed portion of his
sentence was April 28, 2024. Because the defendant is
presumably now serving the from-and-after probationary term
imposed by the plea judge, the issues are not moot.

4
Commonwealth v. Plasse, 481 Mass. 199, 204 (2019) (motion for

release from unlawful restraint under rule 30 [a]). This court

is not empowered to modify or adjust a lawful criminal sentence;

we vacate a trial court's sentencing order and remand only if a

sentence is unlawful,2 see Commonwealth v. Woodward, 427 Mass.

659, 683 (1998), or in the rare circumstance, not present here,

"where there is reason to think a sentencing judge may have

considered uncharged conduct for an improper purpose."

Commonwealth v. Suarez, 95 Mass. App. Ct. 562, 577 (2019).

The purpose of rule 29 (a) (2) is to allow a judge to

consider "whether the sentence imposed was just 'in light of the

facts as they existed at the time of sentencing'" (emphasis and

citation omitted). Tejeda, 481 Mass. at 796. The purpose of

rule 30 (a) is to permit a defendant to seek the correction of

an "illegal" sentence, which is a sentence that is "in excess of

the punishment prescribed by the relevant statutory provision or

in some way contrary to the applicable statute." Commonwealth

v. Layne, 21 Mass. App. Ct. 17, 19 (1985).

2 If a sentence is lawful, the power to review or modify it
is delegated to the Appellate Division of the Superior Court
under G. L. c. 278, §§ 28A - 28C. See Commonwealth v. Coleman,
390 Mass. 797, 804 (1984). The defendant did not pursue such a
sentencing appeal.

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Setting aside the question whether the defendant's motion

to revise and revoke was timely,3 we conclude that the defendant

failed to meet his burdens to show that at resentencing "justice

may not have been done," Mass. R. Crim. P. 29 (a) (2), or that

his sentence was unconstitutional or illegal, Mass. R. Crim. P.

30 (a). The defendant primarily argues that his resentencing

was unjust because the judge relied on defense counsel's

incorrect calculations of his wrap-up date. But the judge made

clear that she did not rely on that information at sentencing.

At the hearing on the motion for relief under rule 29 (a) or

rule 30 (a), the judge stated, "[M]y decision is not based on

parole eligibility . . . or on good time. I wasn't [e]ffecting

a sentence by which [the defendant] would be released in 10

[years]." She explained that, instead, "I based my sentence at

that time on the egregious nature of the facts, very egregious

case, and on the egregious prior record of this defendant, both

3 The judge resentenced the defendant on September 23, 2021;
he filed his motion to revise and revoke on October 25, 2022,
more than thirteen months later. The defendant was required to
file any motion to revise or revoke within sixty days of
sentencing. See Mass. R. Crim. P. 29 (a) (2); Commonwealth v.
Fenton F., 442 Mass. 31, 36 (2004) ("a judge cannot consider a
motion filed after [sixty-day] time frame"). In the trial
court, the defendant argued that his motion should be deemed
timely because his counsel was ineffective at resentencing. The
judge denied the motion without addressing its timeliness or
making a finding whether resentencing counsel was ineffective.

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of which factored into my decision, as they should, in

sentencing."

Nor was the defendant's sentence illegal. The defendant

was subject to a level one ACCA sentencing enhancement, G. L.

c. 269, § 10G (a), which made him punishable in State prison by

a term of three to fifteen years. The nine to twelve year

sentence that the judge imposed at resentencing fell squarely

within that statutory range. Because the defendant's sentence

was not "illegal," or "in excess of or contrary to the

applicable statutory provision," the defendant was not entitled

to relief under either rule 29 (a) (2) or rule 30 (a). Layne,

21 Mass. App. Ct. at 19. We discern no abuse of discretion in

the judge's denial of the motion.

2. Ineffective assistance of counsel. The defendant

claims that at resentencing his lawyer inaccurately computed his

wrap-up date, and in doing so provided him with ineffective

assistance of counsel. We need not pause to consider whether

counsel's performance at resentencing fell "measurably below

that which might be expected from an ordinary fallible lawyer,"

because we conclude that in any event it did not "likely

deprive[] the defendant of an otherwise available, substantial

ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96

(1974). As discussed above, the judge made clear that in

resentencing the defendant, she did not base the sentence on any

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calculations of his good time or projections of his wrap-up

date. In those circumstances, the defendant has not met his

burden to show that he would have received a lighter sentence

had his counsel acted any differently (quotation and citation

omitted). Commonwealth v. Gilbert, 94 Mass. App. Ct. 168, 175

(2018).

3. Prosecutor's reference to defendant's criminal record

as consistent with level three sentencing enhancement. At

resentencing, the prosecutor argued that the defendant's

criminal record was serious enough that it would have qualified

him for an ACCA level three sentencing enhancement, although the

judge was "bound by" the decision of this court that at the

plea, the Commonwealth had presented facts to support only a

level one sentencing enhancement. At the hearing on the rule 29

and rule 30 motion, the prosecutor reiterated that the

defendant's criminal record was serious enough to warrant a

level three sentencing enhancement, and the judge commented,

"It's actually a [four], isn't it? . . . . If there were such a

thing."4 The defendant argues that those comments show that the

4 The ACCA provides for sentencing enhancements at levels
one, two, and three, depending on whether a defendant has been
previously convicted of one, two, or three violent crimes or
serious drug offenses. See G. L. c. 269, § 10G (a)-(c). The
statute contains no provision for an enhancement for someone
with four or more such prior convictions.

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judge and the prosecutor impermissibly treated him as subject to

a level three sentencing enhancement, despite the holding of a

panel of this court that he was subject only to a level one

sentencing enhancement. We are not persuaded.

Passing over the question whether the defendant waived this

claim by not raising it before the judge at resentencing or in

his motion for relief under rules 29 and 30,5 the claim is

without merit. The judge repeatedly made plain at resentencing

that she understood that the defendant was subject to a level

one sentencing enhancement. In imposing the nine to twelve year

sentence, the clerk recited that it was "as an armed career

criminal Level 1." See G. L. c. 269, § 10G (a). If the judge

had in fact treated the defendant as subject to a level three

sentencing enhancement, that would have required imposition of a

minimum mandatory sentence of fifteen years. See G. L. c. 269,

§ 10G (c).

Conclusion. The judge did not abuse her discretion in

denying the motion to revise and revoke or in the alternative

for release from unlawful restraint. Accordingly, the order

5 In his reply brief, the defendant argues that he raised
the claim in his motion to reconsider which argued that
resentencing was unjust because of "the appearance that the
Court did not fully consider proper sentencing factors, and/or
considered legally incorrect information" and the judge's
"stated reasons on the record."

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dated July 31, 2023, denying the motion to revise and revoke or

in the alternative for release from unlawful restraint, is

affirmed. Further, the order dated September 1, 2023, denying

the motion to reconsider, is affirmed.

So ordered.

By the Court (Sacks,
Englander & Grant, JJ.6),

Clerk

Entered: October 24, 2024.

6 The panelists are listed in order of seniority.

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