Com. v. Bianco

• Citation: 390 Mass. 254,454 N.E.2d 901
• Parties: COMMONWEALTH v. Peter P. BIANCO (and six companion cases). 1
• Decision Date: 27 September 1983
• Court: United States State Supreme Judicial Court of Massachusetts

Page 901

454 N.E.2d 901

390 Mass. 254

COMMONWEALTH v. Peter P. BIANCO (and six companion cases). ¹

Supreme Judicial Court of Massachusetts,

Berkshire.

Argued June 13, 1983.

Decided Sept. 27, 1983.

David P. Connor, Springfield, Kermit Goodman and Miriam Gersh, Pittsfield, for Peter P. Bianco.

Joseph C. Vosit, Pittsfield, for Mark E. Hinman.

William K. Danaher, Jr., Springfield, for Joseph F. Burke.

Henry J. Boitel, Rockville Centre, N.Y., for Todd Terpak.

Imelda C. LaMountain, Pittsfield, for Bruce C. Kern.

Frank E. Antonucci, Huntington, for Stephen Piretti.

Brownlow M. Speer, Boston, for Robert Walker.

Anthony J. Ruberto, Jr., Dist. Atty., and Daniel A. Ford, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C.J., and NOLAN, LYNCH and O'CONNOR, JJ.

NOLAN, Justice.

The seven defendants each were convicted by a jury on two indictments charging involuntary manslaughter and one indictment for assault and battery. The trial judge imposed two and one-half year sentences on the manslaughter convictions and he placed the assault and battery convictions on file without the defendants' objection. On March 9, 1983, we set aside verdicts of guilty and ordered judgments to be entered for the defendants on the indictments charging manslaughter. Commonwealth v. Bianco, 388 Mass. 358, 446 N.E.2d 1041 (1983). However, with respect to the indictments charging assault and battery, we held that "the judge in the Superior Court is permitted, but not required, to sentence the defendants on these indictments." Id. at 370, 446 N.E.2d 1041. We noted that "[e]ach defendant is entitled to have his case finally disposed of and judgment entered, and may demand that he be sentenced or discharged." Id. On April 15, 1983, a hearing was held before the judge on the Commonwealth's motion to impose sentences on the assault and battery convictions that had been placed on file. The judge allowed the motion and sentenced each defendant to eighteen months in a house of correction. The defendants moved for stays of execution pending appeal. The judge denied the applications for stay. The denials were upheld by a single justice of the Appeals Court and its Chief Justice and by a single justice of this court. The defendants appealed. The defendants also appealed from the sentences imposed and we allowed their application for direct appellate review. In an order entered June 29, 1983, we affirmed the judgments of conviction and the order of the single justice with an opinion to follow. This is the opinion.

We summarize the facts relating to the issues raised by the defendants. A more thorough discussion of the underlying facts may be found in Commonwealth v. Bianco, supra at 360-362, 446 N.E.2d 1041.

On June 4, 1981, the defendant Burke and another youth, David Carpenter, were assaulted by the victims, Barry Griffin and Richard Retzel, and another youth, Patrick Mangin. The defendant Bianco was informed of this assault and later that night, while at a party attended by all seven defendants, announced, "[B]eating up David Carpenter is like beating up [my] little sister, and they are not going to get away with that.... We will go kick ass." The seven defendants spotted the Cadillac automobile the victims were driving and followed them to Laurel Lake, in Lee. The defendants began yelling and knocking on the windows of the Cadillac. Retzel and Griffin were pulled from the Cadillac and a fist fight ensued. Some of the defendants engaged in punching and kicking Mangin, Retzel, and Griffin. The defendant Terpak reached in to the driver's side and made a sweeping downward movement with his hand. The car began to roll down toward the water, but Griffin and Retzel jumped inside the vehicle and stopped the car momentarily. However, the front wheels then lifted off the ground and the car plunged into the water. The defendants fled the scene. Retzel and Griffin drowned.

1. Removal of the indictments from the file. The defendants argue that the judge erred in removing the assault and battery indictments from the file in the absence of any showing of intervening misconduct by them. We disagree.

It has long been a common practice in this Commonwealth, after a guilty verdict, for a judge to place an indictment on file if "public justice does not require an immediate sentence." Commonwealth v. Dowdican's Bail, 115 Mass. 133, 136 (1874). Such an order is not a final judgment but is a mere suspension of active proceedings. Id. It is always within the power of the court to impose a sentence on such an indictment. Marks v. Wentworth, 199 Mass. 44, 45, 85 N.E. 81 (1908). See Commonwealth v. Brandano, 359 Mass. 332, 336, 269 N.E.2d 84 (1971). The defendants have cited no authority in support of their argument that intervening misconduct must be shown. We conclude that the judge was correct in removing the indictments from the file. ²

2. Prompt disposition. The defendants were indicted on July 9, 1981. The jury returned their verdicts on November 19, 1981, and the assault and battery indictments were placed on file on December 4, 1981. We transferred the appeals to this court on our own motion. The case was entered on our docket in September, 1982. On March 9, 1983, we reversed the judgments on the manslaughter convictions and remanded the case to the Superior Court for further disposition. We denied the Commonwealth's petition for rehearing on March 30, 1983, and the rescript was entered in Superior Court on April 1, 1983. See Mass.R.A.P. 23, as amended, 367 Mass. 921 (1975). On April 7, 1983, the Commonwealth filed motions to remove the assault and battery indictments from the file and for the judge to impose appropriate sentences. On April 15, 1983, the judge held a hearing, allowed the Commonwealth's motions, and imposed sentences on the assault and battery indictments.

The defendants argue that the delay between the date the assault and battery indictments were placed on file and the date they were sentenced on those indictments violated their asserted constitutional right to prompt sentencing. We disagree. Assuming, arguendo, that there is a constitutional right to a speedy sentencing, ³ no such constitutional right has been infringed in the case before us. Our rescript was entered in the Superior Court on April 1, 1983. Six days later the Commonwealth filed the motions requesting the judge to remove the indictments from the file and to sentence the defendants. Eight days thereafter, the judge sentenced the defendants. There was no prosecutorial delay.

3. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656. The defendants argue that removal of the indictments from the file, and the imposition of the sentences, violated the due process principles articulated by the United States Supreme Court in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). We conclude that North Carolina v. Pearce does not apply to these facts.

In the Pearce case, the United States Supreme Court held that where a judge imposes a more severe sentence on a criminal defendant upon a retrial after a successful appeal, the due process clause of the Fourteenth Amendment to the United States Constitution requires the judge to state affirmatively his reasons for doing so and to set forth sufficient findings to support this decision in order that an appellate court may make a determination whether the harsher sentence was precipitated by judicial or prosecutorial vindictiveness. Id. at 723-726, 89 S.Ct. at 2079-2081. See Blackledge v. Perry, 417 U.S. 21, 27-29, 94 S.Ct. 2098, 2102-2103, 40 L.Ed.2d 628 (1974) (prosecutorial vindictiveness). See also McHoul v. Commonwealth, 365 Mass. 465, 470-471, 312 N.E.2d 539 (1974). In the case before us the judge placed the assault and battery indictments on file without the defendants' objection. Placing an indictment on file is not equivalent to sentencing a defendant. Commonwealth v. Dowdican's Bail, 115 Mass. 133, 136 (1874). Thus, no sentences had been imposed prior to the defendants' appeals. Accordingly, the defendants' argument that the judge imposed more severe sentences after their successful appeal misses the mark. As we have already indicated, it is always within the power of the court to remove an indictment from the file and to impose a sentence thereon. Marks v. Wentworth, 199 Mass. 44, 45, 85 N.E. 81 (1908). We do not read the due process principles embodied in North Carolina v. Pearce, supra, and its progeny as precluding a judge from taking such action.

4. Sentencing considerations. The defendants argue that in imposing the eighteen month sentences on the assault and battery convictions, the judge improperly considered the deaths of the victims. This, the defendants claim, resulted in their being punished for crimes which they did not commit: ⁴ We disagree.

The record fails to support the defendants' claim that the judge considered the victims' deaths in imposing the sentences. When asked by defense counsel about assigning a factor for death in the sentencing guidelines, the judge responded that he was not suggesting that he was following the guidelines.

A judge has discretion to consider a broad range of information in imposing sentence. Commonwealth v. Celeste, 358 Mass. 307, 309-310, 264 N.E.2d 683 (1970). Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 1083, 93 L.Ed. 1337 (1949). However, the exercise of this discretion is limited by the due process clause. Due process requires that in sentencing, a judge must not punish a defendant for conduct other than that for which he was convicted. Commonwealth v. LeBlanc, 370 Mass. 217, 221, 346 N.E.2d 874 (1976). United States v. Eberhardt, 417 F.2d 1009, 1015 (4th Cir.1969), cert. denied sub nom. Berrigan v. United States, 397 U.S. 909, 90 S.Ct. 907, 25 L.Ed.2d 90 (1970). We are satisfied that the judge did not commit error by considering matters not open to him on sentencing.

5. Excessiveness of sentence....