Opinion
13-P-1390
12-19-2014
COMMONWEALTH v. CHRISTOPHER FOOTMAN.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28.
On appeal from his convictions on five charges stemming from an incident of domestic violence the defendant argues error in his sentences. After a jury trial in the Boston Municipal Court, the defendant was sentenced to a total of five years in a house of correction and three years of probation after his release. The defendant asserts that in fashioning his sentences the judge improperly considered the facts of a criminal complaint of which he was acquitted.
The defendant was convicted of assault and battery by means of a dangerous weapon, two counts of assault and battery, malicious destruction of property and intimidation of a witness.
He also received two separate suspended sentences, one for two years, suspended for three years, and the other for two and one-half years, suspended for three years, each to run concurrent with his probationary period after release from the house of correction.
Background. After the jury returned their verdicts, the judge heard arguments from the Commonwealth and defense counsel, and thereupon pronounced sentence. In its sentencing argument, the Commonwealth described the long history of domestic violence between the defendant and the victim. Of particular importance, the defendant was charged in 1995 with assaulting the victim in this case, but was acquitted after a jury trial in which the victim testified on behalf of the defendant. The allegations underlying the charges of which the defendant was acquitted were particularly egregious and were recited twice in the Commonwealth's sentencing argument, the second time only after the judge posed a question about them to the prosecutor.
The Commonwealth alleged that the defendant "had kicked [the victim] in the face and body, hog-tied her with Christmas tree lights and set her house on fire."
Discussion. We review a challenge to a defendant's sentences for a substantial risk of a miscarriage of justice. Commonwealth v. Souza, 390 Mass. 813, 817 (1984). Judges have wide latitude in sentencing. Commonwealth v. Mills, 436 Mass. 387, 399-400 (2002). A judge may properly consider reliable evidence of a defendant's prior misconduct, but may not consider conduct for which the defendant was acquitted. Commonwealth v. Goodwin, 414 Mass. 88, 93 (1993). Indeed, it is improper for a prosecutor to make sentencing arguments to a judge based on facts underlying an acquittal. Id. at 91. Where, as here, the prosecutor presented information not properly before the judge, it was advisable for the judge to explain that she did not consider the conduct underlying the 1995 acquittal, or at least explain the basis for the sentences.
Here, the record of the sentencing hearing, taken as a whole, provides no assistance. Given the judge's interest in the conduct she could not properly consider and lack of any enumeration on the record of the factors she did consider, in the circumstances of this case we cannot say with certainty that she disregarded the improper argument in fashioning the sentence. "[S]entencing . . . must be free of any suggestion of impropriety on the part of the judge." Commonwealth v Banker, 21 Mass. App. Ct. 976, 978 (1986). We therefore vacate the sentences and remand the case for resentencing.
During the prosecutor's argument the judge was sufficiently interested in the conduct to interrupt the prosecutor to ask when that conduct occurred. This was the only point in either argument where the judge interjected.
"[A]n explanation of the reasons for a sentence helps in making its basis understood by the people directly involved in the case, as well as the public generally." Commonwealth v. Banker, 21 Mass. App. Ct. 976, 979 n.4 (1986). See Commonwealth v. Gresek, 390 Mass. 823, 830-831 (1984).
We do not reach the defendant's other arguments.
So ordered.
By the Court (Kafker, Grainger & Agnes, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: December 19, 2014.