Opinion
17-P-1532
03-22-2019
COMMONWEALTH v. WILLIAM POWERS.
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
The defendant appeals from the denial of his 2017 motion for resentencing. He argues that the motion judge abused her discretion in denying his motion where the trial judge, who had sentenced him in 2003, relied upon improper considerations, including inaccurate information about the defendant. We affirm.
In 2003, the defendant was convicted after a jury trial of manslaughter, motor vehicle homicide, and two counts of operating a motor vehicle while under the influence of alcohol causing serious injury (OUI). He received a sentence of between seventeen and twenty years in State prison for the manslaughter charge; between five and eight years from and after the manslaughter sentence for the first OUI count; and between four and five years for the second OUI count, from and after the first OUI sentence -- for an aggregate sentence of from twenty-six to thirty-three years. The motor vehicle homicide charge was dismissed as duplicative. Shortly after sentencing, the trial judge filed a twelve-page sentencing memorandum. In 2004, the Appellate Division of the Superior Court denied the defendant's sentence appeal. The judgments and the trial judge's 2005 denial of the defendant's motion for a new trial were affirmed in this court, Commonwealth v. Powers, 67 Mass. App. Ct. 1105 (2006), and further appellate review was denied, Commonwealth v. Powers, 447 Mass. 1112 (2006). In 2017, the defendant filed a "motion for a resentencing hearing," citing Mass. R. Crim. P. 30 (a) & (b), as appearing in 435 Mass. 1501 (2001). A judge other than the trial judge denied that motion, and the defendant now appeals.
Later in 2003, the judge also denied the defendant's motion to revise and revoke sentence and his posttrial motion for a required finding of not guilty.
Background. Around 3 A.M. on August 12, 2001, the defendant, driving a Dodge Spirit, collided with a Nissan Altima at the intersection of Broadway and E Street in the South Boston neighborhood of Boston. The defendant was speeding and intoxicated. The Nissan was driven by Lily Paquette; Amber Seaton and Sean Waters were among the passengers, and all three were seriously injured. Waters died as a result of his injuries and Seaton's injuries were life-threatening. Paquette's injuries including a lanced carotid artery and she eventually required facial reconstruction surgery. Two other passengers suffered other injuries, including bone fractures.
We rely on the trial transcripts filed with the defendant's 2004 appeal.
There was evidence from eyewitnesses that the defendant was driving at least sixty-five miles per hour and had run through two stop signs. A Commonwealth expert in accident reconstruction determined that, at the moment of impact, the defendant's Dodge was traveling at a speed of seventy-one miles per hour, while the Nissan was traveling at thirty-seven miles per hour.
Friends of the defendant testified they had seen him consume alcohol that night; his blood alcohol content (BAC) was tested approximately one hour after the incident and measured at 0.24. Paquette registered a BAC of zero. The defendant also admitted to police officers that he was the driver of the Dodge at the time of the collision.
Discussion. The judge denied the defendant's motion for resentencing without a hearing, writing,
"Following review of the entire case file, motion denied. There is no evidence on this record that the trial judge sentenced the defendant for past conduct. I agree with the Commonwealth's analysis in its opposition that none of the alleged prior 'flaws' in this trial judge's 'sentencing procedures' occurred in this case. I do not find that the trial judge
'inferentially' relied on improper considerations. Trial counsel was a zealous advocate at sentencing and the sentence has already been reviewed multiple times. The defendant has received due process. [Commonwealth v.] Powers, 67 Mass. App. Ct. 1105 (2006); [Commonwealth v.] Goodwin, 414 Mass. 88, 92-93 (1993); [Commonwealth v.] Lykus, 406 Mass. 135, 145 (1989)."
We will assume, without deciding, that the defendant was permitted to bring this motion under rules 30 (a) and (b), which allow a defendant to challenge his incarceration on constitutional grounds or where justice has not been done. We review for error of law or other abuse of discretion. See Commonwealth v. DiCicco, 470 Mass. 720, 728 (2015).
We note a few procedural points. As mentioned above, the defendant filed a new trial motion in 2005; the motion was denied and this court affirmed. We bypass the question whether the defendant has waived his current arguments by not raising them in connection with his first rule 30 motion. Also, as the Commonwealth observes, if the 2017 motion is treated as a motion to revise and revoke, the motion is untimely, see Mass. R. Crim. P. 29 (a), as appearing in 474 Mass. 1503 (2016), and in any event the defendant already brought a motion to revise and revoke in 2003 and did not appeal from its denial.
In the defendant's view, he was deprived of due process because the trial judge sentenced him in part for past conduct and because the judge referred to certain facts that the defendant contends were not accurate. The defendant also contends that the judge had made up his mind about the sentence before the sentencing hearing, as he rejected defense counsel's request for a presentencing investigation, saying that he already had a good idea of the defendant's criminal record, and had described the case as "overwhelmingly sad." Although there was no objection at the time, the defendant now argues that the judge's comments created a substantial risk of a miscarriage of justice. In addition, the defendant notes that the sentence imposed greatly exceeded the Trial Court sentencing guidelines.
"A sentencing judge has great discretion within the statutorily prescribed range 'to fashion an appropriate[,] individualized sentence.' Commonwealth v. Mills, 436 Mass. 387, 399 (2002)." Commonwealth v. Cole, 468 Mass. 294, 302 (2014). So long as the decision on the sentence is based on appropriate considerations, a trial judge is granted "great latitude" in sentencing. Commonwealth v. Jones, 71 Mass. App. Ct. 568, 572 (2008), quoting Commonwealth v. Derouin, 31 Mass. App. Ct. 968, 970 (1992). A trial judge may consider evidence pertaining to a defendant's behavior, character, employment, and family life; the nature of the offense; and the circumstances surrounding the commission of the crime. See Derouin, 31 Mass. App. Ct. at 970. Proper goals in fashioning an appropriate individualized sentence include punishment, deterrence, incapacitation, and rehabilitation. Commonwealth v. McIntyre, 436 Mass. 829, 833 (2002). The defendant may not be punished for his prior criminal record, but it may be used "to inform as to a number of relevant sentencing factors such as his character, dangerousness, and amenability to rehabilitation." Commonwealth v. White, 48 Mass. App. Ct. 658, 663 (2000).
In the case before us, the judge's sentencing memorandum carefully enunciated his considerations in imposing the sentence. He wrote, "the sentence should reflect the judge's careful assessment of several goals: punishment, deterrence, protection of the public and rehabilitation." He took into account considerations of "general deterrence and specific deterrence," the "nature and seriousness of the present criminal offenses," and "any prior criminal record." The judge summarized the facts heard by the jury, the defendant's prior convictions, and the applicable law. He explicitly denied any reliance on the prosecutor's argument that the defendant had not shown remorse for his actions, and the judge pointed out that he had interrupted the prosecutor when he made the improper argument. There were minor inaccuracies -- among other things, the defendant had thirty-five prior convictions rather than the thirty-six referenced by the judge, and, apparently, there was no evidence on the record that the defendant had never been employed full-time. These are not consequential matters.
A careful review of the entire record makes it clear that the judge sentenced the defendant for his behavior on the night of the collision -- behavior that resulted in a death and terrible injuries to four more people. Furthermore, the defendant, in fact, had a serious criminal record, with convictions of crimes of violence (armed robbery, assault and battery by means of a dangerous weapon, and assault by means of a dangerous weapon), breaking and entering, receiving stolen property, malicious destruction, operating a motor vehicle while under the influence of alcohol, leaving the scene of an accident after causing property damage, operating to endanger, and a firearms violation. He had served sentences in houses of correction and in State prison.
That prior criminal record was a proper consideration in sentencing. "[I]n order 'to impose a just sentence, a judge requires not only sound judgment' but also information concerning, among other factors, the defendant's 'criminal and personal history'" (citation omitted). Commonwealth v. Plasse, 481 Mass. 199, 205 (2019). "In fashioning an appropriate and individualized sentence that takes account of a defendant's personal history, a judge has discretion to weigh 'many factors which would not be relevant at trial,' including the defendant's behavior, background, family life, character, history, and employment" (citation omitted). Id.
The sentence was severe and another judge at a different time might have decided differently. However, our role is limited and we see no error of law or abuse of discretion in the denial of the defendant's motion for resentencing.
Order denying motion for resentencing affirmed.
By the Court (Hanlon, Sullivan & Desmond, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: March 22, 2019.