Opinion
16-P-293
02-07-2017
COMMONWEALTH v. Josephine PENZA (and a companion case ).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the District Court, the defendants, Josephine Penza and John Penza, were each convicted of furnishing alcohol to a minor. On appeal, they challenge the denial of their prearraignment motion to dismiss and the jury instruction on wilful blindness. They also claim a violation of their due process rights in sentencing. We affirm.
Because the defendants share a surname, we shall refer to them by their first names for ease of reference.
1. Motion to dismiss . On August 20, 2013, Sergeant Shawn M. Flynn of the Saugus police department filed applications for criminal complaints as to each defendant. The applications, which were identical in facts as to each defendant, provide as follows. On August 18, 2013, near midnight, Saugus police responded to a complaint of a loud party at the defendants' home. At the scene, they found several intoxicated teenagers, including one highly intoxicated sixteen year old who was eventually transported to a local hospital. The defendants were present when the officers arrived, and John stated that "he has been here all along with his wife and a few other adults."
Following a show cause hearing on September 16, 2013, a clerk-magistrate found probable cause to issue the complaints, but agreed to hold their issuance for a "diversion-like resolution if possible." Approximately six months later, on February 20, 2014, the complaints issued at the request of the Saugus police. Prior to their arraignment, on April 23, 2014, the defendants filed a motion to dismiss the complaints, which was denied.
The defendants have not produced a transcript of the show cause hearing as part of the record on appeal.
The defendants now argue that the judge erred in denying their motion to dismiss, as the complaints should not have issued for two reasons: the defendants made good faith efforts to comply with the diversion-like resolution, and the complaints were not supported by probable cause.
In their motion to dismiss, the defendants state that they have engaged in counseling and regularly attend weekly Families Anonymous meetings, and that, despite their best efforts, the Saugus police have failed to communicate what would be required of them to avoid prosecution.
a. Diversion-like resolution . The "implicit purpose" of the statute governing clerk-magistrate proceedings, G. L. c. 218, § 35A, "is to enable the [clerk-magistrate] to screen a variety of minor criminal or potentially criminal matters out of the criminal justice system through a combination of counseling, discussion, or threat of prosecution—techniques which might be described as characteristic, in a general way, of the process of mediation." Eagle-Tribune Publishing Co . v. Clerk-Magistrate of the Lawrence Div. of the Dist. Ct. Dept ., 448 Mass. 647, 650 (2007) (quotation omitted). Such a process is not compulsory, however, and requires the consent of the prosecution, which holds the sole discretion in determining whether to go forward on a complaint once probable cause is established. See Commonwealth v. Clerk of the Boston Div. of the Juvenile Ct. Dept ., 432 Mass. 693, 699-700 (2000). Here, where the parties failed to reach a resolution and the clerk-magistrate had previously found probable cause, she had no other option but to issue the complaints when the Saugus police revoked their consent to the continued deferral.
We reject the defendants' contentions that their due process rights were violated because the Saugus police did not give them a comprehensive list of actions to be taken to avoid prosecution, and that they are entitled to a second hearing before the clerk-magistrate.
b. Probable cause . "To establish probable cause, the complaint application must set forth 'reasonably trustworthy information sufficient to warrant a reasonable or prudent person in believing that the defendant has committed the offense.' " Commonwealth v. Humberto H ., 466 Mass. 562, 565 (2013), quoting from Commonwealth v. Roman , 414 Mass. 642, 643 (1993). "Unless the Commonwealth consents, a motion to dismiss a criminal complaint for lack of probable cause is decided from the four corners of the complaint application, without evidentiary hearing." Commonwealth v. Bell , 83 Mass. App. Ct. 61, 62 (2013). See Commonwealth v. DiBennadetto , 436 Mass. 310, 313 (2002). On appeal, our review is de novo. Commonwealth v. Ilya I ., 470 Mass. 625, 627 (2015).
Here, the facts as set forth in the applications establish probable cause to believe that the defendants furnished alcohol to minors by intentionally providing alcohol to them or by knowingly allowing them to possess alcoholic beverages. See G. L. c. 138, § 34. There was no error in the denial of the defendants' motion to dismiss.
"General Laws c. 138, § 34..., makes it illegal to provide alcohol to a person under twenty-one years of age, on any one of three separate theories of liability: (1) the sale or delivery of any alcoholic beverage to any person under twenty-one years of age for his own use or the use of a parent or other person ('delivering'); (2) procurement of an alcoholic beverage for a person under twenty-one years of age in an establishment licensed to sell alcohol ('procuring'); and (3) furnishment of an alcoholic beverage to a person under twenty-one years of age ('furnishing')." Commonwealth v. Parent , 465 Mass. 395, 407 (2013). Section 34, as appearing in St. 2000, c. 175, defines the word "furnish" to mean "to knowingly or intentionally supply, give, or provide to or allow a person under 21 years of age except for the children and grandchildren of the person being charged to possess alcoholic beverages on premises or property owned or controlled by the person charged."
Because we conclude that the complaints were supported by probable cause, we need not address the defendants' argument concerning the authority of a judge, outside the context of the Juvenile Court, see, e.g., Commonwealth v. Humberto H ., 466 Mass. at 574-576, to dismiss complaints prior to a defendant's arraignment.
2. Wilful blindness instruction . "A willful blindness instruction is appropriate when (1) a defendant claims a lack of knowledge, (2) the facts suggest a conscious course of deliberate ignorance, and (3) the instruction, taken as a whole, cannot be misunderstood [by a juror] as mandating an inference of knowledge." Commonwealth v. Mimless , 53 Mass. App. Ct. 534, 544 (2002) (quotation omitted). Contrary to the defendants' claim, there plainly was a sufficient evidentiary basis here for the jury to conclude that the defendants "intentionally closed [their] eyes to what would have been obvious to [them]." Commonwealth v. Hyde , 88 Mass. App. Ct. 761, 769 n.9 (2015). The instruction was proper.
One party-goer testified that about forty to fifty teenagers were at the defendants' house drinking alcohol and playing beer pong, a drinking game, all while the defendants were present. Moreover, Josephine suggested to the sixteen year old that she explain to the police that she had had a bad meatball.
3. Sentencing . Following their convictions, the judge sentenced each of the defendants to nine months in a house of correction, thirty days to serve, with the balance suspended for two years, and fifty hours of community service. The defendants now claim that, based on the committed portion of their sentences and a certain remark made by the judge prior to sentencing, they were punished for going to trial. We perceive no abuse of discretion.
John began serving his sentence immediately. Josephine's sentence was stayed by a single justice of this court.
A judge is permitted great latitude in sentencing, provided that the decision is rooted in appropriate considerations. Commonwealth v. Jones , 71 Mass. App. Ct. 568, 572 (2008). A sentencing judge may not, however, enhance a defendant's punishment for exercising a constitutional right, such as pleading not guilty. Commonwealth v. Mills , 436 Mass. 387, 400 & n.9 (2002). Here, the judge's remark at sentencing—"a good plea is always better than a bad trial"—reflects the seriousness of the crime as it played out at trial and the egregious behavior of the defendants. Read in context, it also appears to reflect the judge's view that the facts as developed at trial were more egregious than he might have anticipated based on the summary contained in the police report. When considered against this backdrop, the judge's remark does not reflect a punishment of the defendants for exercising their right to a trial. Rather, the judge expressed his understanding that the defendants wanted a trial, notwithstanding the Commonwealth's offer of a continuation without a finding prior to trial. Contrast Commonwealth v. Banker , 21 Mass. App. Ct. 976, 978 (1986).
Finally, although the judge in fact entered sentences exceeding that recommended by the Commonwealth, the sentences were well within that permitted by statute. See G. L. c. 138, § 34. We are satisfied that the defendants' sentences were rooted in appropriate factors, the most prominent being the circumstances attending the crime's commission. There was no error.
Conclusion . The judgments are affirmed, and the stay of execution of Josephine Penza's sentence is vacated.
So ordered .
Judgments affirmed; stay of execution vacated.