Opinion
11-P-1739
12-06-2012
COMMONWEALTH v. MARY K. LANE.
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 March 2, 2010, the defendant pleaded guilty in District Court to shoplifting and was sentenced to eighteen months in a house of correction, with 120 days committed, and the balance suspended. The sentence also contained the following conditions of probation: to remain drug and alcohol free; to submit to drug testing; to have no contact with the victim; and to participate in substance abuse evaluation and treatment. On March 24, 2011, the defendant was found in violation of probation and ordered to report to a treatment center and participate in all treatment and aftercare, with failure to report resulting in the sentence being imposed forthwith. On August 25, 2011, a District Court judge (sentencing judge) found the defendant in violation of probation for new criminal offenses and for failure to report after release from incarceration and imposed the balance of the original sentence: fourteen months committed in a house of correction. The defendant now appeals. 1. The docket shows that on March 2, 2010, the defendant entered a guilty plea to shoplifting, third offense, and that she was sentenced to eighteen months in a house of correction, 120 days to serve with the balance suspended. The docket also shows that she pleaded guilty to receiving stolen property and that the judge (plea judge) filed this conviction with her consent. On the docket sheet, in the 'disposition method' sections, there are checkmarks beside 'guilty plea' for both charges. However, in the 'finding' sections, the word 'guilty' is checked for receiving stolen property, but not for shoplifting. The defendant contends that she was improperly sentenced because no guilty 'finding' on the shoplifting charge was checked on the docket sheet. We disagree. It is clear that the lack of a checkmark does not evince that the defendant was improperly sentenced. Rather, the omission is no more than a clerical error. During the District Court proceedings, the defendant never challenged the contents of the docket. If she had done so, the plea judge could have easily corrected the omission. See Green v. of the Municipal Ct. of the Dorchester Dist. of Boston, 321 Mass. 487, 491 (1947); Mass.R.Crim.P. 42, 378 Mass. 919 (1979).
2. We are unpersuaded by the defendant's contention that the sentencing judge failed to consider all of the mitigating factors and to fashion an appropriate individualized sentence. After the defendant violated probation twice in two years, the sentencing judge had discretion to impose a sentence requiring incarceration, particularly where the defendant was charged with crimes similar to the underlying conviction that resulted in probation. See Commonwealth v. Pena, 462 Mass. 183, 187 (2012). Regarding the report of a treating physician, who opined that the defendant's mental health issues would not improve if she were incarcerated, the sentencing judge did not have to credit it or be bound by its recommendation. See Commonwealth v. Traylor, 29 Mass. App. Ct. 584, 588-589 (1990). The defendant committed new crimes that were similar to the original conviction during the same time period that she was seeing the physician. The sentencing judge did not abuse his discretion in revoking probation and in imposing a jail term for the balance of the underlying conviction. See Commonwealth v. Durling, 407 Mass. 108, 111 (1990); Commonwealth v. Christian, 46 Mass. App. Ct. 477, 482 (1999).
3. The sentence of fourteen months in a house of correction did not constitute cruel and unusual punishment. When a judge revokes probation, he must impose the original suspended sentence. See Commonwealth v. Holmgren, 421 Mass. 224, 228 (1995). The imposed sentence was within the limits set by the statute. Commonwealth v. Bibby, 35 Mass. App. Ct. 938, 941 (1993). The punishment was not 'so disproportionate to the crime that it shocks the conscience and offends fundamental notions of human dignity.' Cepulonis v. Commonwealth, 384 Mass. 495, 497 (1981).
Judgment affirmed.
Order revoking probation and imposing sentence affirmed.
By the Court (Cohen, Katzmann & Wolohojian, JJ.), Clerk