Commonwealth v. Michael Mienkowski. ( 2023 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-809
COMMONWEALTH
vs.
MICHAEL MIENKOWSKI.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In 2014, a Superior Court jury convicted the defendant of
two counts of rape of a child, aggravated by a more than ten
year age difference between the defendant and the victim, one
count of posing a child in a state of nudity, and one count of
dissemination of matter harmful to minors. 1 The judge imposed
concurrent mandatory minimum sentences of ten years in state
prison on the convictions of aggravated rape and posing a child
in a state of nudity. 2 The defendant also received a five year
term of probation to be served from and after the concurrent
sentences on the conviction of dissemination of matter harmful
to minors. This court affirmed the defendant's convictions, see
1 The defendant was acquitted of two additional counts of rape of
a child.
2 See G. L. c. 265, § 23A, and G. L. c. 272, § 29A.
Commonwealth v. Mienkowski, 91 Mass. App. Ct. 668, 669-671
(2017), and the Supreme Judicial Court denied further review,
Commonwealth v. Mienkowski, 477 Mass. 1109 (2017).
About seven years later, in 2021, the defendant filed a
motion pursuant to Mass. R. Crim. P. 30 (a), as appearing in 435
Mass. 1501 (2001) (rule 30 [a]), arguing that the mandatory
minimum sentences imposed on the aggravated rape convictions
(hereinafter, the sentence) were disproportionate to the nature
of the offense and his personal characteristics thereby
violating the prohibition on cruel and unusual punishment under
the Eighth Amendment to the United States Constitution and the
cognate provision of art. 26 of the Massachusetts Declaration of
Rights. 3 The defendant also requested an individualized
sentencing hearing. The motion judge, who was not the trial
judge, 4 denied the motion without a hearing, and the defendant
appealed. 5 We affirm.
3 The defendant does not challenge the ten year minimum mandatory
sentence imposed on the conviction of posing a child in a state
of nudity. Both his motion to vacate his sentence and his brief
on appeal focus solely on the alleged unconstitutionality of the
ten year mandatory minimum sentence imposed on the rape
convictions.
4 The trial judge had retired and consequently the motion was
heard by a different judge.
5 The defendant filed a motion to reconsider, which was denied in
a margin endorsement. The defendant appealed from the denial of
that motion, and the appeal was consolidated with his appeal
from the denial of his original motion. However, because the
defendant does not make any separate arguments regarding the
2
Background. The underlying facts are set forth in
Mienkowski, 91 Mass. App. Ct. at 669-671, and need not be
repeated in detail. In summary, as we previously described, the
defendant was twenty-three years old, unemployed and living with
his mother when he met the victim, who was thirteen years old
and lived in a nearby apartment with her mother. The two began
"hanging out" when the victim was not in school and before long
the victim spent most of her free time with the defendant. Id.
at 669. Approximately six months after they met, the defendant
began regularly raping the victim, who believed she was in love
and kept the relationship secret. The defendant also exchanged
sexually explicit text messages with the victim and the two
exchanged nude photographs. The criminal conduct came to light
when the victim moved out of state to live with her aunt and
uncle and the aunt discovered the text messages and photographs
on the victim's telephone.
As noted, in 2021 the defendant filed the rule 30 (a)
motion which is the subject of this appeal. He claimed that at
the time he committed the offenses he suffered from numerous
mental health disorders including posttraumatic stress disorder,
panic disorder, panic disorder with agoraphobia, depressive
disorder, and alcohol dependence. Prior to filing his motion,
denial of the motion to reconsider, we only address the merits
of his claim that the original motion should have been allowed.
3
the defendant was examined by Dr. Erin Kitchener, a clinical
neuropsychologist, who conducted multiple tests and reviewed the
defendant's educational and social history. She concluded that
the defendant appeared to suffer from Fetal Alcohol Spectrum
Disorder, a neurodevelopmental disorder caused by prenatal
alcohol exposure. Dr. Kitchener also opined that the defendant
is developmentally delayed, and that his cognitive and social-
emotional functioning were significantly delayed at the time of
the events in question. Based on Dr. Kitchener's findings and
opinion, which were summarized in a detailed report that the
defendant submitted in support of his motion, 6 the defendant
argued that the ten year mandatory minimum sentence was
unconstitutional as applied to him because the term of
incarceration was disproportionate to the facts and
circumstances of the offense and his personal characteristics.
More specifically, he claimed that given his diagnosis, which
resulted in significant social limitations and cognitive
impairments, he was not, from a social or functional
perspective, ten years older than the victim. Consequently, he
6 The defendant's rule 30 (a) motion quoted extensively from Dr.
Kitchener's report. However, it appears that the report itself
was submitted under separate cover. In an abundance of caution,
the defendant attached a copy of the report to his motion to
reconsider. Based on the judge's findings and discussion, we
are confident that he reviewed the report and, in fact, accepted
Dr. Kitchener's findings and conclusions for purposes of the
motion.
4
asserted that the sentence should be vacated and he requested a
new sentencing hearing at which his individual characteristics
could be taken into consideration.
In a well-reasoned memorandum and order of decision, the
motion judge concluded that the defendant had not met his burden
of demonstrating that the sentence violated art. 26's guarantee
of proportionality. 7 In reaching his conclusion, the judge noted
that the trial judge imposed the most lenient sentence possible
and, as a result, one could not conclude, as our case law
requires, that the sentence "shock[ed] the conscience or
offend[ed] fundamental notions of human dignity."
Discussion. 8 We review the denial of a motion brought
pursuant to rule 30 (a) for an abuse of discretion or error of
7 The motion judge focused on art. 26 because it "affords a
defendant greater protections than the Eighth Amendment."
Commonwealth v. Sharma, 488 Mass. 85, 89 (2021). We do the
same.
8 The Commonwealth argues, as it did below, that the defendant
waived his claim that his sentence is unconstitutional by
failing to raise it at the earliest opportunity. We agree with
the motion judge that the issue is not waived but, in any event,
because we conclude that the judge did not abuse his discretion
in denying the motion we need not address this argument. In
addition, the Commonwealth argues that the motion was properly
denied because the judge had no discretion but to impose the
mandatory minimum and therefore the sentence is not illegal. We
agree that the sentence is not illegal in that it does not
exceed the permissible maximum and, therefore, we confine our
discussion to the question whether the sentence is
unconstitutional as applied here. Lastly, insofar as the
Commonwealth also argues that because the Legislature prescribed
a mandatory minimum sentence for aggravated rape, both the
motion judge and this court lack the discretion to grant the
5
law. Commonwealth v. Perez, 480 Mass. 562, 567 (2018). A
judge's decision "constitutes an abuse of discretion where we
conclude the judge made a clear error of judgment in weighing
the factors relevant to the decision, such that the decision
falls outside the range of reasonable alternatives" (quotation
and citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185
n.27 (2014). Where, as here, "a defendant claims that a judge
has made an error of constitutional dimension . . . [we] review
independently the application of constitutional principles to
the facts found" (quotation omitted). Perez, supra."The touchstone of art. 26's proscription against cruel or
unusual punishment . . . [is] proportionality. The essence of
proportionality is that punishment for crime should be graduated
and proportioned to both the offender and the offense"
(quotations and citations omitted). Commonwealth v. Sharma, 488
Mass. 85, 89 (2021). "To reach the level of cruel and unusual,
the punishment must be so disproportionate to the crime that it
relief the defendant requests, we note that "enactments of the
Legislature must comport with both the Federal and State
Constitutions." Diatchenko v. District Attorney for the Suffolk
Dist., 466 Mass. 665, 672 (2013). The motion judge had
discretion to depart from the mandatory minimum sentence only if
the defendant carried his heavy burden of proving that the
sentence is disproportionate under Cepulonis v. Commonwealth,
384 Mass. 495, 497 (1981), and therefore unconstitutional as
applied to the defendant. We have the same discretion.
However, because we conclude that the defendant did not meet his
burden, we do not exercise that discretion here.
6
'shocks the conscience and offends fundamental notions of human
dignity.'" Id., quoting Commonwealth v. LaPlante, 482 Mass.
399, 403 (2019). The defendant has the "heavy burden" of
proving disproportionality. Commonwealth v. Pfeiffer, 482 Mass.
110, 131, cert. denied, 140 S. Ct. 498 (2019), quoting
Commonwealth v. Alvarez, 413 Mass. 224, 233 (1992).
As the judge correctly observed, in determining whether a
sentence is so disproportionate to the crime that it shocks the
conscience we apply a three prong test requiring "(1) an
'inquiry into the nature of the offense and the offender in
light of the degree of harm to society,' (2) 'a comparison
between the sentence imposed here and punishments prescribed for
the commission of more serious crimes in the Commonwealth,' and
(3) 'a comparison of the challenged penalty with the penalties
prescribed for the same offense in other jurisdictions.'"
Commonwealth v. Concepcion, 487 Mass. 77, 86, cert. denied, 142
S. Ct. 408 (2021), quoting Cepulonis v. Commonwealth, 384 Mass.
495, 497-498 (1981).
The motion judge concluded that the defendant failed to
meet all three prongs of the analysis. He focused his analysis
on the first prong, and appropriately considered the nature of
the offense and the defendant's characteristics. In doing so,
he accepted Dr. Kitchener's opinion and the facts as presented
by the defendant in his motion. He also considered the trial
7
judge's decision to impose the lowest possible sentence by
imposing concurrent ten year mandatory minimum terms. The judge
further explained that the decision of the Supreme Judicial
Court in Commonwealth v. Jones, 479 Mass. 1, 18 (2018),
supported his conclusion. He observed that "the Supreme
Judicial Court has declined to eliminate sentences of life in
prison without the possibility of parole for people with
developmental disabilities or to require that such sentences be
discretionary rather than mandatory" (quotation omitted).
On appeal, the defendant advances essentially the same
arguments as he did below, namely that the facts and
circumstances are sufficient to meet his burden of proving that
the sentence is disproportionate. Although we conduct an
independent review of the defendant's constitutional claim, we
reach the same conclusion as the motion judge. While the record
provides support for the defendant's claim that he suffered from
developmental delays, the nature of the offense "in light of the
degree of harm to society," Cepulonis, 384 Mass. at 497, quoting
Commonwealth v. Jackson, 369 Mass. 904, 909 (1976), does not
support a conclusion that the sentence he received was
disproportionate such that it violated art. 26. Accordingly, we
cannot say that the judge made "a clear error of judgment in
weighing the factors relevant to the decision." Perez, 477
Mass. at 682 (quotation omitted). The judge properly applied
8
the three-prong analysis and concluded that, even in light of
the defendant's intellectual disability and other mental health
challenges, the sentence did not shock the conscience or offend
fundamental notions of human decency and therefore was not
disproportionate as applied to him. Because this conclusion
plainly does not "fall[] outside the range of reasonable
alternatives," id. (quotation omitted), the judge did not abuse
his discretion in denying the defendant's motion.
Order entered May 3, 2022,
denying motion to vacate an
unconstitutional sentence
affirmed.
Order entered June 28, 2022,
denying motion for
reconsideration affirmed.
By the Court (Vuono, Hand &
Hodgens, JJ. 9),
Clerk
Entered: August 9, 2023.
9 The panelists are listed in order of seniority.
9