Opinion
11-P-1119
03-19-2012
COMMONWEALTH v. MICHAEL S. GOMES.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from the order denying his motion for resentencing. We affirm.
Background. On August 9, 2001, after being convicted by a jury, the defendant was sentenced to fifteen to twenty years in prison for the crime of rape. He was also sentenced to five years probation, on and after the predicate sentence, for the crime of indecent assault and battery. Before the sentence was announced, the trial judge indicated that she wanted to explain some of the reasons for the sentence. Among other things, the judge stated, 'I'm also affected by the testimony of the defendant himself who told a story that was really not believable at all . . . .' The defendant now claims, for the first time, that the judge improperly considered his alleged perjury when she imposed the sentence.
The defendant was also sentenced to five years probation for a violation of probation from previous offenses. This sentence was ordered to be served concurrently with the probation term imposed for his conviction of indecent assault and battery.
Discussion. In 2004, the defendant's conviction was affirmed by this court in an unpublished memorandum and order pursuant to our rule 1:28. See Commonwealth v. Gomes, 66 Mass. App. Ct. 1111 (2006). The defendant did not raise the issue of the judge's improper statement in his direct appeal. Although the issue is therefore waived, Commonwealth v. Mahar, 442 Mass. 11, 13 n.4 (2004), we must assess the error to determine whether there exists a substantial risk of a miscarriage of justice. Commonwealth v. Simmons 448 Mass. 687, 690-691 (2007).
It is undisputed that a trial judge may not consider a defendant's alleged perjury in determining a sentence. Commonwealth v. Coleman, 390 Mass. 797, 808-810 (1984). The judge's improper statement, however, must be viewed in the context of her entire remarks. After the defendant was convicted of an extremely serious offense, which had a profound effect on the victim, the judge held a comprehensive hearing on the issue of sentencing. At the hearing, the judge articulated several reasons for the sentence that was imposed. The judge considered the defendant's prior record, the very serious nature of the offenses, the breach of trust that facilitated the accomplishment of the defendant's perpetration of the crimes, and the particular vulnerability of the victim. The judge also concluded, after reviewing the defendant's record and the nature of the offenses for which the defendant was convicted, that the defendant was unable or unwilling to conform his behavior to the expectations of society. Finally, the judge considered the enormous impact that the defendant's crimes had on the victim and her family. These considerations articulated by the judge are appropriate considerations in sentencing. See Commonwealth v. Rodriguez, 461 Mass. 256, 259 (2012).
The sentencing hearing consists of thirty-one pages of transcript.
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In its brief, the Commonwealth concedes that the judge's statement was error and agrees that the case should be remanded for resentencing. Though the Commonwealth concedes error, we are not thereby relieved 'of our appellate function of determining whether error was committed.' Commonwealth v. McClary, 33 Mass. App. Ct. 678, 686 n.6 ((1992). After considering the sentencing hearing in its entirety, we conclude that the judge's improper comment, though error, did not constitute a substantial risk of a miscarriage of justice.
Order denying motion for resentencing affirmed.
By the Court (Vuono, Smith & Carhart, JJ.),