Opinion
10-P-206
12-06-2011
COMMONWEALTH v. STEPHEN D. RICHARD.
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
This appeal from the denial of two posttrial motions brings two issues before the court: whether the trial judge erred (1) in denying the defendant's motion to vacate the sentence and grant him a new sentencing hearing, and (2) in denying his motion for resentencing before a different judge. We affirm the orders denying the motions.
1. Defendant's motion for a new sentencing hearing. In 2005, following his conviction of the rape of a child, G. L. c. 265, § 23, the defendant was sentenced to a term of incarceration in State prison followed by a period of probation and imposition of community parole supervision for life (CPSL) based on acts which occurred between 1988 and 1994 while the victim was between eight and fifteen years of age. Following the issuance of the decision in Commonwealth v. Pagan, 445 Mass. 161, 162, 171, 174 (2005) (Pagan), the defendant moved to vacate that portion of his sentence that included the CPSL and for a new sentencing hearing. The trial judge vacated the CPSL portion of the sentence and denied the remaining request of the defendant. The defendant contends that, in light of the order of remand in Pagan, 445 Mass. at 174, and like cases, he was entitled to a new sentencing hearing at which he would have the right to argue for a lesser sentence. However, the reason for the remand order in Pagan was not to remedy any prejudice suffered by the defendant as a result of the elimination of the CPSL component of the original sentence, but to give the sentencing judge an opportunity to reassess her sentence, if she wished, because without the availability of the CPSL component, the judge might have made other sentencing choices.
The defendant's conviction and the denial of his first motion for a new trial were affirmed by this court in an unpublished opinion. See Commonwealth v. Richard, 74 Mass. App. Ct. 1107 (2009).
This view is confirmed by Commonwealth v. Renderos, 440 Mass. 422, 435 (2003), in which the Supreme Judicial Court explained, 'We reject the defendant's request that we vacate only that portion of his sentence that was unlawful, that is, only the sentence to lifetime community parole supervision. The [sentencing] judge's belief that lifetime community parole supervision could be imposed influenced his decision as to the appropriate punishment for the defendant's two convictions. The sentences imposed constituted an integrated package, each piece dependent on the other, which cannot be separated.' Thus, a sentencing judge who included CPSL as a component of a sentence could, upon further reflection in light of the elimination of CPSL, resentence the defendant and increase the length of any period of incarceration or probation.
In the present case, the original sentencing judge vacated, at the defendant's request, the CPSL component of his sentence. The judge, who had presided at the defendant's trial and previously filed a thoughtful sentencing memorandum, did not see fit to exercise her sentencing discretion to change the term of incarceration. In these circumstances, the defendant received the full benefit of the ruling in Pagan. He has no right to a new sentencing hearing.
There is nothing in the record to indicate that between the date of the defendant's original sentence (June 16, 2005) and the allowance of his motion to vacate the CPSL component (February 28, 2008), there was any evidence favorable to the defendant that could have been offered at a sentencing hearing, or that might have led the sentencing judge to impose a lesser period of incarceration. See Commonwealth v. White, 436 Mass. 340, 343-344 (2002).
2. Defendant's motion for the recusal of the sentencing judge . The defendant's claim that the trial judge was biased and should not have sentenced him or acted on his motion to vacate the original sentence lacks any basis in the record. In her sentencing memorandum, the judge noted that the defendant was originally charged with five additional counts in addition to the rape (three charges of indecent assault and battery on a child under the age of fourteen, one charge of assault and battery, and one charge of unlawful dissemination of matter harmful to a minor) which were dismissed prior to trial. At trial, the defendant admitted to all of the acts charged in five other counts that were dismissed before trial, but denied any digital penetration of the victim, which was the gravamen of the remaining count of rape on which he was convicted. The victim testified that she had been raped by the defendant. In these circumstances, it was entirely appropriate for the trial judge to consider the defendant's trial testimony admitting that he committed the acts that were the subject of the dismissed charges, not for the purpose of punishing him for such acts, but as evidence of his character in determining the punishment for the conduct for which he was convicted. See sentencing memorandum (R.A. at 30). See also Commonwealth v. Coleman, 390 Mass. 797, 805 (1984). Contrast Commonwealth v. Wallace, 76 Mass. App. Ct. 411, 419-420 (2010).
Orders denying motions for resentencing and for recusal affirmed.
By the Court (Rapoza, C.J., Cohen & Agnes, JJ.),