Opinion
16-P-685
04-12-2017
COMMONWEALTH v. Peter HRYCENKO, Sr.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from the order denying his motion to revise and revoke his sentence pursuant to Mass.R.Crim.P. 29(a), 378 Mass. 899 (1979), and the order denying his motion for reconsideration. We discern no error or abuse of discretion on the part of the judge and, therefore, we affirm.
Background. We summarize the lengthy procedural history of this prosecution to provide context for our decision. Following a jury trial in the Superior Court, the defendant was convicted of intimidating a judge and sentenced to serve three to seven years in State prison. The charge stemmed from a seven-page, handwritten letter the defendant sent to a judge of the West Roxbury Division of the Boston Municipal Court Department who, on December 20, 2007, had sentenced him to a two-year split sentence following his plea of guilty to operating a motor vehicle with a suspended license.
After his intimidation conviction, the defendant filed a motion to revise and revoke his sentence, which the trial judge did not act upon. The defendant also filed a motion for a new trial on the ground of ineffective assistance of trial counsel. Specifically, he claimed that his counsel was ineffective "for not pursuing a defense that he lacked criminal responsibility or had diminished mental capacity" because he was suffering from "serotonin withdrawal syndrome." The motion was denied after an evidentiary hearing. The defendant's appeal from the judgment and the order denying his new trial motion were consolidated. A different panel of this court affirmed the judgment and the order in an unpublished memorandum and order issued pursuant to our rule 1:28. See Commonwealth v. Hrycenko, 87 Mass. App. Ct. 1121 (2015).
It was undisputed that the defendant had been prescribed the antidepressant Effexor and that he did not take it after he initially was incarcerated. The defendant wrote the letter three days after he was placed in custody.
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As relevant here, in affirming, the panel rejected the defendant's claim that the trial judge considered improper factors in determining the appropriate sentence. Specifically, the defendant argued that the judge improperly invited the defendant to file a motion to revise and revoke the sentence in the event the parole board denied him parole after three years. During the sentencing hearing, the judge stated that he was "imposing a range of from three to seven years because ... considering all the evidence in th[e] case, it seem[ed] to [him] a three-year period of incarceration before parole consideration is a just punishment." Moreover, the judge stated that he expected the defendant to be "eligible and hopefully released [on parole] at a three-year period of time" and that the judge was "telling the Department of Corrections and the Parole Board ... that [the judge thought the defendant] ought to start out doing three years." The panel acknowledged that the judge's comments were "ill advised" but held that the challenged remarks did not render the sentence illegal.
The defendant then renewed his motion to revise and revoke in which he claimed (1) the fact that he suffered from serotonin withdrawal syndrome was a mitigating factor that the judge should have considered when fashioning an appropriate sentence; and (2) the judge should not have considered issues relating to parole eligibility because parole decisions are based on conduct that occurs postsentencing.
A hearing on the motion was held on December 3, 2015. At the conclusion of the hearing, the judge denied the motion, stating:
"I am not persuaded that Serotonin withdraw[al] syndrome motivated the defendant's conduct or mitigates his crime in this instance on the facts ... both at trial and on a motion for new trial.... [T]o allow this motion, to revise this sentence, would be based on the outcome of the initial parole determination. I won't do that in light of the Appeals Court admonition that I must not."
Thereafter, the defendant filed a motion for reconsideration in which he essentially alleged that the judge had acted vindictively. According to the defendant, the judge denied his motion to revise and revoke only because he had challenged the lawfulness of the judge's sentence on direct appeal. The motion for reconsideration also was denied. In a margin endorsement, the judge wrote: "[T]o impose a probationary term at this stage would only be based on the fact that parole was denied and would violate separation of powers principles and Rule 29. This is not an act of 'judicial vindictiveness' ... rather it is a ruling mandated by law."
Discussion. A decision denying a motion to revise and revoke is reviewed for an abuse of discretion. Commonwealth v. Malick, 86 Mass. App. Ct. 174, 185 (2014), citing Commonwealth v. Derry, 26 Mass. App. Ct. 10, 13 (1988). A judge may revise and revoke a sentence if it appears that justice may not have been done. Mass.R.Crim.P. 29(a). However, as the Commonwealth properly notes, "the power of a trial judge to revise or revoke a criminal disposition is severely limited." Commonwealth v. Jackson, 80 Mass. App. Ct. 528, 533 (2011), quoting from Commonwealth v. Goodwin, 458 Mass. 11, 16 (2010). "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.’ " Commonwealth v. DeJesus, 440 Mass. 147, 152 (2003), quoting from Commonwealth v. Barclay, 424 Mass. 377, 380 (1997).
No abuse of discretion occurred here. We have reviewed the record carefully and conclude that the judge properly understood that any decision regarding the defendant's parole would be made by the parole board and not by him. More importantly, it is clear that the judge continued to believe that the sentence he originally imposed was appropriate despite the actions of the parole board and the possible effects of serotonin withdrawal. Lastly, there is no basis for the defendant's claim that the judge acted in a vindictive manner.
Order denying motion to revise and revoke sentence affirmed.
Order denying motion for reconsideration affirmed.