Opinion
15-P-408
07-29-2016
COMMONWEALTH v. MIKOLAJ K. LETKOWSKI.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A jury convicted the defendant, Mikolaj K. Letkowski, of aggravated kidnapping (indictment 1), armed robbery (indictment 2), aggravated rape (indictments 3 and 4), assault and battery by means of a dangerous weapon (indictment 5), and witness intimidation (indictment 6). The trial judge sentenced the defendant to a term of twenty-five to thirty years on indictment 1; concurrent terms of twenty-five to thirty years on indictments 2, 3 and 4; and concurrent terms of five to six years on indictments 5 and 6. The sentences on indictments 2 through 6 were ordered to run concurrently with the sentence on indictment 1. The defendant appealed and this court concluded "that the conviction of aggravated kidnapping and one of the convictions of aggravated rape [were] duplicative and that the conviction of assault and battery by means of a dangerous weapon [was] duplicative of one of the convictions of aggravated rape." Commonwealth v. Letkowski, 83 Mass. App. Ct. 847, 858-859 (2013). We determined that the judgment on the indictment for assault and battery by means of a dangerous weapon should be vacated, the verdict set aside, and the indictment dismissed, but we left for the trial judge the question of which charge, the aggravated kidnapping or the aggravated rape, should be dismissed as duplicative, "having in mind the offenses charged in the indictments and the respective punishments." Ibid.
The Supreme Judicial Court granted the defendant's application for further appellate review on an issue regarding the defendant's invocation of his rights under Miranda v. Arizona at trial. 384 U.S. 436 (1966). After review, the Supreme Judicial Court affirmed the convictions and remanded the case, for the reasons stated by the Appeals Court, for further proceedings. Commonwealth v. Letkowski, 469 Mass. 603, 620 (2014).
On remand, after a hearing, the trial judge dismissed the aggravated kidnapping indictment. As a result, the lead sentence upon which all other sentences were to run concurrently was vacated. After hearing argument on resentencing, the judge sentenced the defendant to a term of twenty-five to thirty years on the armed robbery conviction and imposed concurrent sentences on the remaining charges. In this appeal, the defendant argues that in light of the dismissal of the duplicative conviction, he was entitled to a new sentencing hearing and that to the extent the judge conducted one, it was not meaningful.
In determining an appropriate sentence, the trial judge is granted wide discretion, provided it is within the limits established by the Legislature. Commonwealth v. Leggett, 82 Mass. App. Ct. 730, 736-738 (2012). The defendant argued at the hearing that the original sentence was based on the judge's focus on the kidnapping charge, but the judge stated that "I think the reason why I imposed the sentence that I imposed is because it was one of the worst crimes I have ever seen in my life. It was a horrible crime, horrible crime." After hearing and considering the arguments on resentencing, the judge stated:
"My [original] sentence was driven not so much by the legislative mandate as it was by my view of the appalling facts of the case, and I'm not going to change it. I'm going to impose the lead sentence on count two, Mr. Clerk, the armed robbery count, 25 to 30 years at MCI Cedar Junction, concurrent sentences of 25 to 30 years on counts three and four. And on count six . . . [i]ntimidation of a witness, there was a five-to-six-year sentence, concurrent, which will stand."
The defendant was able to make all available arguments regarding resentencing, including pointing out mitigating factors that the judge had considered during the original sentencing proceeding. The defendant also argued that he had been successfully using medication to control his mental condition while incarcerated. All of these factors were matters for the judge to weigh. Commonwealth v. Jones, 71 Mass. App. Ct. 568, 572-573 (2008). We see nothing in the record that indicates that the judge imposed an illegal sentence, considered improper facts such as untried crimes or uncharged conduct, desired to send a message to the defendant, relied on misleading or inaccurate information, or punished the defendant for not confessing. See the authorities cited in the Commonwealth's brief at pages 19 through 20.
The defendant argues that the judge did not exercise his discretion to fashion a new sentence and that we should not conclude that he did by reading into "virtual silence an exercise of discretion as essential as that granted to the trial judge . . ." The defendant's characterization of the judge's participation in the hearing is not supported by the record. The term of years the defendant is serving was not altered by the resentencing but there is no requirement that the term of years to be served be altered. As the judge noted, the original concurrent sentences were driven by the facts of the case rather than by the number of or similarity of charges. Although two of the charges have been dismissed, the facts of the case did not change. There was no error.
Judgments affirmed.
By the Court (Cypher, Blake & Henry, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: July 29, 2016.