Commonwealth v. Baptista , 86 Mass. App. Ct. 28 ( 2014 )

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12-P-1407                                               Appeals Court
COMMONWEALTH   vs.   JOHN BAPTISTA.
No. 12-P-1407.
Bristol.      February 7, 2014. - July 16, 2014.
Present:   Sikora, Hines, & Maldonado, JJ.
Practice, Criminal, Sentence. Evidence, Prior misconduct.
Rape. Indecent Assault and Battery.
Indictments found and returned in the Superior Court
Department on February 14, 2007.
The cases were tried before Richard T. Moses, J., and a
proceeding to revise sentence was had by him.
Alan D. Campbell for the defendant.
Yul-mi Cho, Assistant District Attorney, for the
Commonwealth.
SIKORA, J.   In March of 2012, a Superior Court jury
convicted the defendant, John Baptista, of rape of a child by
force and indecent assault and battery on a child under the age
of fourteen years.   See G. L. c. 265, § 22A; G. L. c. 265,
§ 13B.   Two weeks after sentencing, the trial judge, pursuant to
2
Mass.R.Crim.P. 29(a),

378 Mass. 899

 (1979), sua sponte convened
a hearing and thereafter increased the defendant's sentence for
the conviction of rape of a child by force.        The defendant
appeals from his convictions and from the imposition of the
increased sentence.       For the following reasons, we affirm.
Background.    1.    Facts.    The jury heard the following
evidence.    In New Bedford, from approximately 1994 and into
1997, the victim, Michael, 1 lived with his mother, two older
sisters, and the defendant.        The defendant cared for Michael
when his mother was at work.        Michael, who was twenty-two years
old at the time of trial, testified that on multiple occasions
the defendant entered his bedroom, touched his penis and
buttocks, and manually penetrated his rectum.        He recounted that
the defendant had threatened to "chop [him] into little pieces"
if he disclosed the abuse. 2
2.    Sentencing.    At the time of sentencing, the defendant
was serving a term of fifteen to twenty-five years in State
prison for a conviction in 1999 of rape by force of one of
Michael's sisters.       On March 15, 2012, at the conclusion of a
subsequent offender bench trial, the judge sentenced the
defendant to seven to ten years in State prison on the
1
A pseudonym.
2
The defendant does not challenge the sufficiency of the
evidence supporting his convictions.
3
conviction of rape of a child by force, subsequent offense; and
five to seven years on the conviction of indecent assault and
battery on a person under the age of fourteen years, subsequent
offense.   The judge imposed those sentences to be served
concurrently with each other and with the sentence in progress
on the rape by force of Michael's sister.
Two weeks later, after the defendant had filed his notice
of appeal, the judge, pursuant to Mass.R.Crim.P. 29(a), sua
sponte conducted a hearing and increased the defendant's
sentence for the conviction of rape by force of Michael to
twelve to eighteen years.     He left the sentence for the
conviction of indecent assault and battery of Michael at five to
seven years.     The effect of the revision was to increase the
defendant's length of incarceration by approximately six to
seven years. 3
Discussion.    1.   Sentence increase under Mass.R.Crim.P.
29(a).   The defendant contends that the trial judge's exercise
of authority under rule 29(a) to increase a sentence after
submission of a defendant's notice of appeal exerts an
impermissible chilling effect on the right to appeal.     With
3
If the defendant serves time to the midpoint of each
sentence differential, the completion date of the 1999 sentence
of fifteen to twenty-five years would lie in the vicinity of
2019, and the completion date of the original 2012 sentence of
seven to ten years in this case would lie in 2021. In contrast,
the completion date of the revised 2012 sentence of twelve to
eighteen years would lie in the vicinity of 2027.
4
exclusive reliance on North Carolina v. Pearce,

395 U.S. 711

,
723-726 (1969), he proposes that the timing of such a
spontaneous revision creates a presumption of vindictiveness.
Rule 29(a), entitled "Revision or Revocation of Sentence,"
provides, in pertinent part, that a "trial judge upon his own
motion or the written motion of a defendant filed within sixty
days after the imposition of a sentence . . . may . . . revise
or revoke such sentence if it appears that justice may not have
been done."    The purpose of the rule "is to permit a judge to
reconsider the sentence [which] he has imposed and determine, in
light of the facts as they existed at the time of sentencing,
whether the sentence was just."    Commonwealth v. White,

436 Mass. 340

, 344 n.3 (2002), quoting from Commonwealth v. Layne,

386 Mass. 291

, 295 (1982).    See Commonwealth v. Vith Ly,

450 Mass. 16

, 20 n.5 (2007).    A judge may adjust a sentence upward
or downward.    See Commonwealth v. Jackson,

80 Mass. App. Ct. 528

, 532-533 (2011).    Compare Commonwealth v. McCulloch,

450 Mass. 483

, 487 (2008), quoting from District Attorney for the N.
Dist. v. Superior Ct.,

342 Mass. 119

, 128 (1961) ("Occasions
inevitably will occur where a conscientious judge, after
reflection or upon receipt of new probation reports or other
information, will feel that he has been too harsh or has failed
to give due weight to mitigating factors which properly he
should have taken into account.    In such cases the interests of
5
justice and sound judicial administration will be served by
permitting the trial judge to reduce the sentence within a
reasonable time"), with Commonwealth v. Derry,

26 Mass. App. Ct. 10

, 12 (1988) (Smith, J.) ("It is well settled that a sentencing
judge has the authority under rule 29[a] to increase a sentence
previously imposed, provided that the revision takes place
within sixty days of the imposition of the original sentence"),
and Commonwealth v. Carver,

33 Mass. App. Ct. 378

, 390 (1992)
(judge can increase severity of sentence if it appears justice
may not have been done), and cases cited.   The authority of a
sentencing judge under rule 29(a) "is consistent with the
general responsibility of a judge to safeguard both the rights
of the accused and the interest of the public in the due
administration of the law."   Aldoupolis v. Commonwealth,

386 Mass. 260

, 269 (1982). 4
The defendant's reliance on Pearce as authority for a
presumption of vindictiveness is misplaced.   In each of the two
cases comprising the Pearce appeal, the chronology of events
consisted of a conviction, a successful appeal, a retrial, a
reconviction, and a resulting harsher sentence without
4
In Aldoupolis, supra, the court noted that the Reporter's
Notes to rule 29 errantly state, "[T]hat an increase in the
sentence once execution has commenced is not permitted has,
however, long been settled." We take this opportunity to repeat
that this language, still in the Notes, remains inaccurate. The
only time limit on the judge's authority is the sixty-day period
set by the rule.
6
explanation.

395 U.S. at 713-715

.   The Court concluded that the
due process clause of the Fourteenth Amendment to the United
States Constitution prohibited retaliatory sentencing as an
inhibition of the right to appeal and, as a remedy in cases of
increased sentencing, ordered that a statement of reasons "must
affirmatively appear[,] . . . based upon objective information
concerning identifiable conduct on the part of the defendant
occurring after the time of the original sentencing proceeding."

Id. at 726

.
This case obviously differs from the categorical
circumstances of the Pearce prosecutions.   We do not have a
successful appeal, a retrial, and a new conviction, as the
suspected origin and motivation creating a more severe sentence.
A defendant receiving an upwardly revised sentence outside the
Pearce circumstances still may pursue an argument of
vindictiveness on the part of the judge.    See Alabama v. Smith,

490 U.S. 794

, 799-800 (1989) (Pearce presumption extends to
circumstances of "reasonable likelihood" of vindictiveness).
See also Wasman v. United States,

468 U.S. 559

, 569 (1984)
(where prophylactic rule of Pearce does not apply, defendant
still may obtain relief if he can show "actual vindictiveness");
Mann v. Commonwealth,

359 Mass. 661

, 665 (1971) ("Irrespective
of the holdings in the Pearce case, allegation and proof of
vindictiveness on the part of a judge may be a violation of due
7
process in any case").    The defendant here does not develop the
details of such an argument.
If we were to infer a contention of likely or actual
vindictiveness, the record would not furnish any basis for it.
Under rule 29, a judge "must give adequate notice and an
opportunity to be heard to the criminal defendant.    He should
also state clearly on the record why it appears that 'justice
may not have been done' by the terms of the original sentence."
Aldoupolis v. Commonwealth, supra at 276.    Where, as here, the
judge increases a sentence, "findings and a statement of
supporting reasons are important to demonstrate that improper
considerations did not motivate the judge's action."      Ibid.,
quoting from Commonwealth v. Sitko,

372 Mass. 305

, 314 (1977).
The judge here complied with this procedure.    He gave notice of
the resentencing hearing, provided the defendant with an
opportunity to be heard, and delivered the reasons for his
revision. 5   The record is devoid of any indication of
5
The judge reasoned (1) that, if the charges of the abuse
of Michael had gone to trial with those of the abuse of his
sister in 1999, an enhanced sentence would have been appropriate
at that time; (2) that the delayed revelation of the abuse of
Michael and the later trial in 2012 had resulted from the
defendant's intimidation of Michael; and (3) that the increased
sentence fell within the range recommended by the guidelines of
the Massachusetts sentencing commission, see G. L. c. 211E, § 3.
We observe that the sentence fell within the statutory bounds.
G. L. c. 265, § 22A, as appearing in St. 2008, c. 205, § 2
(person convicted of rape of child by force "shall be punished
8
vindictiveness or retaliation against the notice of appeal.    See
Commonwealth v. Thibeau,

11 Mass. App. Ct. 677

, 680 (1981).
2.   Witness's reference to prior offense.   Before trial,
the judge excluded from evidence any reference to the case of
Michael's sister.   In the course of her direct examination as a
witness for the Commonwealth, Michael's social worker remarked
that he once had told her of "other events that took place
regarding [the defendant] and his sister and . . . ."    An
immediate objection cut off her testimony.   The judge sustained
the objection and gave a prompt, forceful, curative instruction. 6
The defendant argues that the judge wrongly denied his
subsequent motion for a mistrial.
The standard of review of such a denial is abuse of
discretion.   See Commonwealth v. Lao,

460 Mass. 12

, 19 (2011).
In the circumstances, no abuse is visible.   The reference was
fleeting and vague; it did not apprise the jury of the
defendant's prior bad acts.   See Commonwealth v. Smallwood,

379 Mass. 878

, 892 (1980); Commonwealth v. Cunneen,

389 Mass. 216

,
223-224 (1983); Commonwealth v. Valentin,

420 Mass. 263

, 272
(1995).   The responsive instruction was immediate and strong.
by imprisonment in the state prison for life or for any term of
years").
6
The judge stated, "We're not talking about any
relationship with anyone else in this case. . . . The jury is
to disregard that remark. If there is any inference that might
be drawn, it should not. It's not part of this case. The jury
is totally to disregard it, and it's stricken."
9
See Commonwealth v. Gibson,

357 Mass. 45

, 49 (1970);
Commonwealth v. Kilburn,

426 Mass. 31

, 37-38 (1997);
Commonwealth v. Bolling,

462 Mass. 440

, 455 (2012).    Except for
extraordinary circumstances absent here, we presume that the
jury will obey such instructions.   See Commonwealth v. Cameron,

385 Mass. 660