In Commonwealth v. Sitko, supra, we concluded that a trial judge may have prejudiced a defendant's rights by considering, in revising the penalty for the substantive crime, the defendant's failure to appear to commence service of his sentence, a separate offense under G.L.c. 276, § 82A. In Commonwealth v. Murray, 4 Mass. App. Ct. 493, 496-497 (1976), the trial judge had stated, during the sentencing hearing, that the penalty to be imposed for an unarmed robbery conviction was based in part on the defendant's perjury on the witness stand. Although the judge imposed a statutorily permissible term which was recommended by the prosecutor, the Appeals Court vacated the sentence.

We presume from the record that the defendant was not so found because when the evaluation process was concluded, the judge imposed a sentence to State prison. Citing Commonwealth v. Murray, 4 Mass. App. Ct. 493 (1976), the defendant contends that the judge's remark reflects that the sentencing proceedings were tainted with improper considerations. The Commonwealth, on the other hand, relying principally on United States v. Grayson, 438 U.S. 41 (1978), argues that the judge acted properly.

In view of that holding, and despite any other sentencing concepts to which we might otherwise be attracted, we are controlled here by the principles announced in, and the holding of, the Poteet decision. We are aware of differing views as to what might, or might not, constitute appropriate considerations and standards for sentencing in this context, see, e. g., United States v. Nunn, 525 F.2d 958, 960-61 (5th Cir. 1976); United States v. Hendrix, 505 F.2d 1233, 1234-37 (2d Cir. 1974), cert. denied, 423 U.S. 897, 96 S.Ct. 199, 46 L.Ed.2d 130 (1975); Commonwealth v. Murray, Mass. App., 351 N.E.2d 555 (1976). See also the opinions of Judge Adams, concurring, and Judge Rosenn, dissenting, infra.

Furthermore, a judge may not punish a defendant for refusing to confess before sentencing. See Commonwealth v. Murray, 4 Mass. App. Ct. 493, 497 (1976) (imposing greater sentence because defendant refused to confess burdens defendant's appellate and other postconviction rights). See also Mitchell v. United States, 526 U.S. 314, 321 (1999) (privilege against compelled self-incrimination retained at sentencing hearing); LeBlanc v. United States, 391 F.2d 916, 917-918 (1st Cir. 1968).

Commonwealth v. Coleman, supra at 799-800. Commonwealth v. Murray, 4 Mass. App. Ct. 493, 495-496 (1976). In the Souza case, the judge stated that he was punishing the defendant, in part, for "the bold lie" that he told on the witness stand.

The Appeals Court agreed with the defendant, reasoning that the judge's conduct contravened the law of this Commonwealth. Commonwealth v. Souza, supra at 746-747. See Commonwealth v. Murray, 4 Mass. App. Ct. 493, 496-497 (1976). The court reasoned that, by taking note of the defendant's allegedly false testimony in determining a sentence, a judge not only endeavors to punish a defendant for conduct other than that for which he stands convicted, but sanctions the accused for going to trial and testifying in his own behalf.

Here, the judge's comment did not indicate consideration of an improper factor in sentencing, and it did not represent an inclination to punish the defendant because he had lied or committed other offenses. Contrast Commonwealth v. Gresek, 390 Mass. 823, 830–831 (1984); Commonwealth v. Murray, 4 Mass.App.Ct. 493, 495 n. 3 (1976). While perhaps better left unsaid, the judge's comment was a record-based assessment of the defendant's character and not a prohibited “personal philosophical message.”

The remark here is considerably less blatant than the statements in cases holding that remand was necessary. Compare Commonwealth v.Coleman, 390 Mass. at 809-810 (judge cross-examined defendant, repeatedly expressed disbelief in defendant's testimony, and stated he was offended by the defendant's attempt to "kid" him); Commonwealth v. Gresek, 390 Mass. at 830-831 (judge accused defendant of "lying like hell . . . no doubt [in judge's] mind . . . [defendant] lying"); Commonwealth v.Murray, 4 Mass. App. Ct. 493, 495 n. 3 (1976) (judge "punishing [defendant] for coming up here and lying and for his whole attitude");Commonwealth v. Juzba, 46 Mass. App. Ct. 319, 325 (1999) (judge explained he was "imposing . . . sentence [because he] found [defendant's] testimony to be absolutely preposterous. . . . [Defendant] has absolutely no concern for the truth"). Given the ambiguity of the statement, which was neither emphasized nor repeated, the likely meaning in context (there can be no dispute that the defendant gave two conflicting accounts), the defendant's prior unsuccessful attempts at sentencing relief, and the fact that the sentence was less than the prosecutor recommended (nine to twelve rather than ten to fifteen), but see Commonwealth v. Coleman, 390 Mass. at 810 (accepting Commonwealth's recommendation "does not vitiate . . . improper consideration of the defendant's perjury"), we conclude that resentencing before another judge is not warranted.

Although willingness to admit guilt may be a proper factor justifying more lenient sentencing, Commonwealth v. Johnson, 27 Mass. App. Ct. 746, 751 (1989), punishing a defendant for exercising a constitutional right is not a proper exercise of sentencing discretion. Commonwealth v. Murray, 4 Mass. App. Ct. 493, 497 (1976) (increasing a sentence because of the defendant's failure to confess burdens a defendant's rights against compelled self-incrimination). SeeEstelle v. Smith, 451 U.S. 454, 462 (1981) (rejecting proposition that incrimination is complete once guilt is adjudicated); Mitchell v. United States, 526 U.S. 314, 321 (1999) (privilege of silence retained at sentencing).

"[A] trial judge may not consider a defendant's alleged perjury on the witness stand in determining the punishment to impose for a criminal conviction." Commonwealth v. Coleman, 390 Mass. 797, 806 (1984), citingCommonwealth v. Murray, 4 Mass. App. Ct. 493, 496-497 (1976). Here, the judge did not expressly state that one of the factors he considered in determining the length of the sentences he imposed on the defendant was his belief that the defendant committed perjury.