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SJC-12593

COMMONWEALTH vs. ROBINSON TEJEDA.

Suffolk. December 4, 2018. - March 29, 2019.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, 

& Kafker, JJ.

Practice, Criminal, Sentence. Joint Enterprise.

Indictments found and returned in the Superior Court 

Department on April 27, 2012.

Following review by this court, 473 Mass. 269 (2015), a 

motion to revise and revoke the defendant's sentence was heard 

by Janet L. Sanders, J.

After review by the Appeals Court, the Supreme Judicial 

Court granted leave to obtain further appellate review.

Dana Alan Curhan for the defendant.

Helle Sachse, Assistant District Attorney, for the 

Commonwealth.

LOWY, J. The issue before us is whether a judge may allow 

a defendant's motion to revise and revoke a sentence under Mass. 

R. Crim. P. 29 (a) (2), as appearing in 474 Mass. 1503 (2016), 

based upon the disparity between the defendant's sentence and a 
2

coventurer's sentence subsequently imposed by a different judge.

Although generally motions to revise and revoke sentences must 

be based on facts as they existed at the time of sentencing, 

today we recognize a limited exception that allows judges to 

consider a coventurer's sentence for the same crime even if 

imposed subsequent to the defendant's sentence where it is 

reasonably apparent that the defendant was less or equally 

culpable than his subsequently-sentenced coventurer. Because we 

conclude that the circumstances of this case fit that narrow 

exception, we affirm the decision of the judge to grant the 

defendant's motion to revise and revoke his sentence to match 

that of his coventurer.

Background. After a jury trial, the defendant, Robinson 

Tejeda, was convicted of armed robbery and other charges.1 This 

court affirmed his convictions in Commonwealth v. Tejeda, 473 

Mass. 269, 281-282 (2015). The defendant's convictions stem 

from his involvement in the robbery of a man from whom the 

defendant and two friends had arranged to buy marijuana. Id. at 

270-271. The defendant remained in the vehicle while his two

coventurers, Christopher Pichardo and Stephane Etienne, entered 

 

1 The defendant also was convicted of possession of a class 

D controlled substance with intent to distribute, home invasion, 

and murder in the second degree. Commonwealth v. Tejeda, 473 

Mass. 269, 269-270 (2015). His motion for judgment 

notwithstanding the verdict was allowed as to the murder 

conviction and affirmed by this court. Id. at 281-282.
3

a residence with the intention of obtaining the marijuana 

through a ruse, rather than through payment. Id. at 270. Their 

robbery led to a gun fight, during which Pichardo was shot and 

killed. Id. On May 8, 2014, the defendant received a State 

prison sentence of from six to eight years on the armed robbery 

count.

After a separate trial before a different judge in April 

2015, Etienne received a State prison term of from five to seven

years for armed robbery. The defendant subsequently filed a 

motion to revise and revoke based on the disparity between those 

sentences. The judge agreed with the defendant and reduced his 

sentence to match the sentence of Etienne.2 The Commonwealth 

appealed, and in an unpublished memorandum and order pursuant to 

its rule 1:28, the Appeals Court reversed, concluding insofar as 

relevant here that the judge's decision was improperly based on 

an event that occurred after the defendant had already been 

 

2 In support of her decision, the judge stated:

"I think it's a fairly straightforward issue. You know, 

frankly I think there's a real value to treating like cases 

alike as much as possible. It's hard sometimes to decide 

if cases are exactly alike. There's differences in 

criminal records, there's different facts or different 

levels of involvement. When it comes down to it, however, 

if I had Mr. Tejeda here and was sentencing him at the same 

time as Mr. Etienne, if they had been tried together, then 

I would have imposed the same sentence. So I'm going to 

allow the motion and reduce the sentence to the sentence 

that Mr. Etienne received."
4

sentenced. Commonwealth v. Tejeda, 93 Mass. App. Ct. 1116 

(2018). We allowed the defendant's application for further 

appellate review.

Discussion. Rule 29 (a) (2) provides that "[t]he trial 

judge, upon the judge's own motion, or the written motion of a 

defendant, filed within sixty days after the imposition of a 

sentence or within sixty days after issuance of a rescript by an 

appellate court on direct review, may, upon such terms and 

conditions as the judge shall order, revise or revoke such 

sentence if it appears that justice may not have been done." 

Although a trial judge's power under rule 29 (a) "to revise or 

revoke a criminal disposition is severely limited," Commonwealth

v. Goodwin, 458 Mass. 11, 16 (2010), the rule's purpose 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." Commonwealth v. McCulloch, 450 Mass. 483, 487 

(2008), quoting Commonwealth v. DeJesus, 440 Mass. 147, 152 

(2003). "In considering whether to allow a motion to revise or 

revoke, 'we have repeatedly and unequivocally held that a judge 

may not take into account conduct of the defendant that occurs 

subsequent to the original sentencing.'" DeJesus, supra, 

quoting Commonwealth v. Barclay, 424 Mass. 377, 380 (1997).

However, a judge may take into account a disparity among the 
5

sentences of codefendants. Commonwealth v. Derry, 26 Mass. App. 

Ct. 10, 13 (1988).

The Commonwealth contends that the judge abused her 

discretion in allowing the defendant's motion for two reasons. 

First, the Commonwealth asserts that the defendant's motion was 

inadequate because it was not accompanied by an affidavit and 

therefore should have been denied on procedural grounds. See 

Mass. R. Crim. P. 29 (b) (party who files "motion pursuant to 

this rule . . . shall file and serve" affidavit in support of 

his or her position). In DeJesus, 440 Mass. at 152, we 

considered the affidavit requirement and concluded that "to be 

properly filed, a motion to revise or revoke must be accompanied 

by an affidavit, or otherwise indicate the grounds on which it 

is based." However, where, as here, the factual basis for a 

motion is clear despite the lack of an affidavit, rule 29 (b) is 

not so stringent as to preclude a judge from considering the 

motion.

The Commonwealth further argues that the judge abused her 

discretion in considering Etienne's sentence because Etienne was 

tried separately and sentenced after the defendant. Therefore, 

the Commonwealth asserts, the reduction of the defendant's 

sentence was erroneously based on facts other than those 

available at sentencing. Using our superintendence power, we 

now recognize a limited exception to the requirement that 
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motions to revise and revoke be based solely on facts as they 

existed at the time of sentencing: a judge may consider a 

disparate sentence of a coventurer, tried separately and 

subsequently, who was convicted of the same crime where, at the 

time of sentencing, it is reasonably apparent that the defendant 

was less culpable than or equally culpable to his or her yet

untried coventurer.

The underlying principles governing rule 29 motions are 

fairness and justice. In keeping with these principles, our 

cases emphasizing that facts not in existence at the time of 

sentencing cannot serve as the basis for an altered sentence 

have focused on the conduct of the defendant or a denial of 

parole. See, e.g., McCulloch, 450 Mass. at 487 (subsequent 

payment of restitution improper consideration in rule 29 

motion); Barclay, 424 Mass. at 380 (positive conduct by 

defendant while incarcerated cannot be considered in rule 29 

motion); Commonwealth v. Amirault, 415 Mass. 112, 115-117 (1993) 

(judge cannot revise and revoke sentence because parole board 

acted contrary to judge's expectations). We do not depart from 

this well-settled law; a defendant's actions postsentencing are 

best considered by a parole board.3 See Commonwealth v. 

 

3 It remains within a judge's discretion to consider a 

defendant's behavior while on probation in determining whether 

to modify probation conditions. Goodwin, 458 Mass. at 15-23 

(judge has discretion to add, eliminate, or modify defendant's 
7

McGuinness, 421 Mass. 472, 476 n.4 (1995) ("A judge may not 

interfere with the executive function of the parole board by 

using postconviction evidence in an order to revise and 

revoke").

However, in the circumstances of this case, it would be 

arbitrary to say the judge could have considered the 

coventurer's sentence if it had been imposed before the 

defendant's sentence, but find error in her consideration of the 

sentence solely because it was issued after the defendant's

sentence. See Derry, 26 Mass. App. Ct. at 13. The facts that 

formed the grounds for each sentence were known at trial. The 

defendant remained in the vehicle while his two coventurers 

entered a residence with the intention of stealing drugs while 

armed with a firearm. One of the coventurers was killed in a 

shootout. Certainly, the defendant was culpable; he was 

convicted and sentenced to State prison. The defendant's 

culpability, however, was not commensurate with that of his 

surviving coventurer who entered the residence and engaged in a 

robbery that devolved into a shootout while the defendant waited 

outside in the vehicle. The difference between the defendant's 

culpability and that of his coventurer, Etienne, was reasonably 

apparent at the time of the defendant's original sentencing.

 

probation conditions based on defendant's performance while on 

probation, be it positive or negative).
8

 In the circumstances of this case, the judge did not 

abuse her discretion in considering the coventurer's laterimposed sentence where the coventurer was more culpable and 

received a more lenient sentence. The allowance of the 

defendant's motion to revise and revoke his sentence is 

affirmed.

So ordered.