Opinion
20-P-1154
01-06-2022
COMMONWEALTH v. Andrew W. LAIRD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the Boston Municipal Court, the defendant was convicted of negligent operation of a motor vehicle. The judge sentenced the defendant to two years in the house of correction, six months committed, and the balance suspended for three years. The defendant contends on appeal that the judge abused his discretion by relying on improper factors in fashioning the sentence. We affirm.
The defendant was found not guilty of operating a motor vehicle under the influence of intoxicating liquor.
Background. On July 23, 2016, around 2:30 A.M. , the defendant was driving westbound on the Massachusetts Turnpike. Another driver (second driver) observed the vehicle driven by the defendant "going in and out" of the far right lane and swerving in and out of the two right lanes. Concerned for his own safety, the second driver drove into the third lane "to avoid" the vehicle driven by the defendant. "The next thing [the second driver] saw" was the vehicle driven by the defendant "stop, full stop in front of [the second driver] on the highway." The second driver was moving at approximately forty to forty-five miles per hour and could not avoid colliding with the vehicle driven by the defendant. The second driver saw the defendant exit the vehicle, saw that the defendant could not stand up on his own and appeared to be intoxicated, and called the police.
A Massachusetts State Police trooper soon arrived, saw that the defendant could not maintain his balance, and smelled an odor of alcohol from the defendant. The trooper had the defendant recite the alphabet, which the defendant failed to do despite multiple attempts.
Following trial, the Commonwealth recommended a sentence of one year of probation. Defense counsel sought a fine or probation. He further requested that if the judge intended to impose jail time "that the sentence be suspended." The judge subsequently stated as follows:
"Look, counsel, what Mr. Laird was convicted of, we're all lucky that nobody was killed. It's an outrageous thing that happened on the Mass Pike. A person going at a high rate of speed and jamming on his brakes in front of another individual causing a massive accident in the middle of the Mass Pike at 2:30 in the morning."
The judge then sentenced the defendant as follows: "to two years in the house of correction, six months committed, balance suspended, probation for three years." The defendant then addressed the judge, acknowledged his prior mistakes and criminal history, and asked the judge to reconsider and impose a suspended sentence. The judge responded as follows:
"[Y]ou've had a lot of opportunities, a lot. You're lucky you're alive right now. You're lucky the person in your vehicle didn't get hurt or killed. You're lucky the person who hit you didn't get hurt or killed. This is serious business, very serious."
The judge then ruled that "[t]he sentence stands."
Discussion. The defendant argues that the judge relied on inappropriate considerations in sentencing the defendant. He claims, inter alia, that the judge interrupted defense counsel's remarks at sentencing, which shows that the judge predetermined the sentence; that the judge punished the defendant for the crime of which he was acquitted, operating under the influence of intoxicating liquor; and that the judge erroneously referenced hypothetical injuries and possible deaths that never occurred. The claims are unavailing.
"[J]udges are permitted great latitude in sentencing as long as the sentence imposed is within the limits provided by the statute under which the defendant is convicted." Commonwealth v. McIntyre, 436 Mass. 829, 833 (2002), quoting Commonwealth v. Power, 420 Mass. 410, 413-414 (1995), cert. denied, 516 U.S. 1042 (1996). "It is not within our power to review a lawful sentence." Commonwealth v. McCravy, 430 Mass. 758, 767 (2000). Rather, we review a sentence only to determine whether it is unconstitutional or otherwise illegal. See Commonwealth v. White, 48 Mass. App. Ct. 658, 664-665 (2000).
Here, the sentence imposed was neither illegal nor the product of inappropriate considerations. First, the sentence was within statutory limits. Second, contrary to the claim that the judge erred in referencing the prior "opportunities" given to the defendant, the judge properly considered the defendant's significant criminal history -- including his prior convictions, prior sentences of incarceration, prior violations of probation, and prior violations of the conditions of his continuations without a finding -- in crafting the defendant's sentence. Third, the judge properly considered the seriousness of the offense and the defendant's conduct at issue in the present case. There is nothing in the record to support the contention that the judge punished the defendant for uncharged behavior or conduct for which he was acquitted. See Commonwealth v. Goodwin, 414 Mass. 88, 92-93 (1993), and cases cited. See also McIntyre, 436 Mass. at 833. Rather, the record supported the sentence imposed by the judge as well as the judge's brief comments. Contrast Commonwealth v. Henriquez, 56 Mass. App. Ct. 775, 782 (2002), S.C., 440 Mass. 1015 (2003). There was no error or abuse of discretion.
Judgment affirmed.