Opinion
13-P-990
11-07-2014
COMMONWEALTH v. PAUL HAWKSLEY.
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
The defendant, Paul Hawksley, appeals his convictions for forcible rape of a child, two counts of rape of a child, and indecent assault and battery on a child under fourteen, and in the alternative, he appeals his sentence for the forcible rape of a child conviction. The defendant argues that his trial counsel was ineffective and that the life sentence imposed was based upon uncharged conduct. We affirm.
Discussion. Ineffective assistance. The defendant argues that his trial counsel's decision to call the defendant's ex-wife to testify was ineffective assistance of counsel because the defendant's ex-wife could, and did, authenticate an apology note the defendant wrote. No motion for new trial was filed, and as a result, the defendant is relying entirely upon the trial record to support his argument. "[A]n ineffective assistance of counsel challenge made on the trial record alone is the weakest form of such a challenge because it is bereft of any explanation by trial counsel for his actions and [is] suggestive of strategy contrived by a defendant viewing the case with hindsight." Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002). "[A] 'claim of ineffective assistance may be resolved on direct appeal of the defendant's conviction [only] when the factual basis of the claim appears indisputably on the trial record.'" See Commonwealth v. Zinser, 446 Mass. 807, 811 (2006) (citation omitted).
The defendant and his ex-wife were married at the time the victim was raped by the defendant. The defendant's ex-wife arranged to send flowers and the note from the defendant as well as a note from herself to the victim's family.
The decision to call the defendant's ex-wife to testify was a trial tactic. We cannot conclude based on the trial record alone that trial counsel was ineffective because he could have had a strategic reason that was not manifestly unreasonable for calling the defendant's ex-wife, even though calling her would result in the apology note being authenticated through her testimony. See Commonwealth v. Haley, 413 Mass. 770, 777-778 (1992) (citation omitted) ("Trial tactics which may appear questionable from the vantage point of hindsight, do not amount to ineffective assistance unless 'manifestly unreasonable' when undertaken"); Commonwealth v. Smith, 459 Mass. 538, 554 (2011), quoting from Commonwealth v. Adams, 374 Mass. 722, 728 (1978) ("[W]e consider whether trial counsel's decision not to call [a witness] was 'so manifestly unreasonable as to be unprotected by the labels of "trial strategy" or "trial tactics"'").
The prosecutor indicated that if trial counsel did not call the defendant's ex-wife, the prosecutor would still be able to authenticate the note. In that context, trial counsel had to decide whether or not to call the ex-wife. During his direct examination, trial counsel attempted to have the ex-wife explain why the note was sent and to elicit testimony that contradicted the victim's account of the events on the day the victim testified the forcible rape occurred.
Sentencing. The defendant argues that the judge sentenced him to life in prison based upon uncharged conduct. To the contrary, the judge explicitly noted that he was considering the defendant's past convictions., It was appropriate for the judge to "us[e the] defendant's criminal record to inform as to a number of relevant sentencing factors such as his character, dangerousness, and amenability to rehabilitation." See Commonwealth v. White, 48 Mass. App. Ct. 658, 663 (2000). Commonwealth v. Sanchez, 405 Mass. 369, 381 (1989) ("The judge properly could consider the defendant's prior convictions in deciding what sentence to impose"). There was no error.
The judge stated: "I've reviewed the defendant's record. Regardless of how you categorize this [(]as a subsequent offense or not [)], by my count he's been convicted for four counts of rape of a child and eight counts of indecent assault and battery on a child under 14. It seems to me that the defendant is a pedophile and a predator and he needs to be removed from society."
During the prosecutor's sentencing argument, she mentioned conduct toward three other victims. The defendant had been convicted of the conduct toward two of the victims at the time of sentencing but the conduct toward the alleged third victim was uncharged conduct. The judge never mentioned the alleged third victim in sentencing.
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Judgments affirmed.
By the Court (Kafker, Trainor & Milkey, JJ.), Clerk Entered: November 7, 2014.