Com. v. Goodwin

• Citation: 605 N.E.2d 827,414 Mass. 88
• Parties: COMMONWEALTH v. Ralph W. GOODWIN.
• Decision Date: 04 January 1993
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 827

605 N.E.2d 827

414 Mass. 88

COMMONWEALTH v. Ralph W. GOODWIN.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued Nov. 4, 1992.

Decided Jan. 4, 1993.

Patricia A. O'Neill, Committee for Public Counsel Services, for defendant.

Barbara F. Berenson, Asst. Dist. Atty., for Com.

Before WILKINS, NOLAN, LYNCH and GREANEY, JJ.

GREANEY, Justice.

We transferred this case from the Appeals Court to examine the defendant's contention that he is entitled to resentencing on a conviction because the judge in imposing the sentence improperly considered the defendant's prior misconduct that had resulted in neither a guilty finding nor a formal complaint. We conclude that the judge acted properly in imposing the sentence.

On September 13, 1990, the defendant offered guilty pleas in the Superior Court to three indictments charging rape of a child by force and one indictment charging kidnapping. The prosecutor outlined the following facts as the basis of the indictments. The defendant had taken the victim, a seven year old boy, away from a social function the victim was attending with his parents by threatening to kill the victim if he refused to go along. The defendant first took the victim to an area underneath a bridge where an act of fellatio occurred. The defendant then brought the victim to the cellar of his (the defendant's) parents' house where other acts of fellatio were performed, and the defendant attempted to sodomize the victim. The victim was confined in the cellar overnight. The next morning the defendant committed an additional act of fellatio, after which the defendant surreptitiously removed the victim from the house in a large cardboard box and sent him home in a taxicab.

The judge accepted the defendant's pleas of guilty on all four indictments, and the matter was put over for sentencing to September 28, 1990. On that date, the judge indicated that she had reviewed the probation officer's presentence report, a videotape of the victim's grand jury testimony, psychiatric evaluations of the defendant, the defendant's sentencing memorandum, and the Commonwealth's sentencing memorandum. The defendant's sentencing memorandum included letters from the defendant's parents and five of his siblings depicting the defendant as sensitive, loving, and harmless, representing that the defendant had a serious problem with alcohol and had himself been a victim of sexual child abuse, and seeking a sentence that, after some period of incarceration, would place the defendant on probation in a supervised-living situation.

The Commonwealth's sentencing memorandum contained, among other things, two police reports and two abuse or neglect reports compiled by the Department of Social Services (DSS), which had been furnished to the district attorney's office pursuant to G.L. c. 119, § 51B (1990 ed.). These reports contained information that the defendant had engaged in prior sexual misconduct with two young boys (who were brothers), two young girls (who were sisters), and his five year old and three year old nephews. The Commonwealth's memorandum went on to indicate that the defendant had been tried and acquitted on criminal charges involving the misconduct with one of the boys, that he had not been tried in connection with the allegations concerning the boy's brother, and that the defendant had not been charged on any of the other incidents because the families of the children involved refused to subject them to the court process. ¹

The defendant's counsel objected to the judge's consideration of the information on the sexual misconduct which had resulted in criminal charges on which the defendant was found not guilty, and he moved that reference to the other matters, as outlined above, "go[ing] beyond" the charges to which the defendant had pled guilty, be struck and not be considered in connection with imposing sentence. The judge indicated that she wanted to hear full sentencing arguments. After hearing testimony from the victim's father and reviewing a letter from the victim's mother, the judge heard lengthy arguments from the prosecutor and the defendant's counsel on what each considered to be appropriate punishment. The judge sentenced the defendant to two concurrent State prison sentences of from ten to fifteen years on two of the rape convictions and a concurrent sentence of from nine to ten years on the kidnapping conviction. On the third rape conviction (indictment no. 90-607), the judge imposed a State prison sentence of from thirty to forty years suspended for ten years. This sentence was to be served from and after the committed sentences with a specific condition of probation that the defendant receive psychiatric treatment. It is in connection with this sentence that the defendant argues the judge acted improperly. ²

1. General Laws c. 276, § 85 (1990 ed.), provides that presentencing reports compiled by probation officers "shall not contain as part thereof any information of prior criminal prosecutions, if any, of the defendant wherein the defendant was found not guilty by the court or jury in said prior criminal prosecution." See Mass.R.Crim.P. 28(d)(2), 378 Mass. 898 (1979). What probation officers are prohibited from doing cannot be accomplished indirectly by a prosecutor through the Commonwealth's sentencing memorandum. The prosecutor should not have included information as to the defendant's prior misconduct which had resulted in acquittals of criminal charges. Nor should he have made arguments to the judge based on this information. The judge, however, made it clear on the record that she did not consider the charges on which the defendant had been acquitted in deciding that the consecutive suspended sentence should be imposed. ³ We, therefore, reject the defendant's argument that he is entitled to resentencing because the judge wrongly relied on this information.

2. The judge did not act improperly in considering the other information concerning other sexual misconduct by the defendant with young children. A judge has considerable latitude within the framework of the applicable statute to determine the appropriate individualized sentence. See Commonwealth v. Celeste, 358 Mass. 307, 309-310, 264 N.E.2d 683 (1970); Commonwealth v. Ferguson, 30 Mass.App.Ct. 580, 586, 571 N.E.2d 411 (1991). That sentence should reflect the judge's careful assessment of several goals: punishment, deterrence, protection of the public, and rehabilitation. See Cepulonis v. Commonwealth, 384 Mass. 495, 499, 427 N.E.2d 17 (1981). In making that assessment, the judge may consider many factors which would not be relevant at trial including hearsay information about the defendant's character, behavior, and background. See Commonwealth v. Celeste, supra at 310, 264 N.E.2d 683 ("[a sentencing] judge may consider hearsay, the defendant's behavior, family life, employment, and various other factors"). See also Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 1083, 93 L.Ed. 1337 (1949) ("modern concepts individualizing punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information by a requirement of rigid adherence to restrictive rules of evidence properly applicable to the trial").

Federal due process principles do not prevent consideration at sentencing of a defendant's past uncharged misconduct. As we indicated in Commonwealth v. LeBlanc, 370 Mass. 217, 220-221, 346 N.E.2d 874 (1976): "[T]here is no [Federal] constitutional bar against a sentencing judge considering a convicted defendant's record of arrests, unresolved criminal charges against him, or other evidence of criminal conduct by him forwhich there has been no conviction.... Due process would require resentencing if the sentencing judge had relied on information which was inaccurate or misleading ... a prior conviction later revealed to be constitutionally infirm ... or allegations of other criminal conduct which were wholly unreliable.... Of course, a sentencing judge may not undertake to punish the defendant for any conduct other than that for which the defendant stands convicted in the particular case." (Footnote and citations omitted.) No convincing argument has been made that the due process provisions of art. 12 of the Massachusetts Declaration of Rights grant a defendant any greater protection so long as the judge does not permit the sentence to vary because she thinks the defendant is guilty of other misconduct. See Commonwealth v. LeBlanc, supra at 223, 346 N.E.2d 874. Consistent with these principles, Massachusetts decisions have recognized the relevance at sentencing of reliable evidence of the defendant's prior misconduct. See Commonwealth v. Coleman, 390 Mass. 797, 805, 461 N.E.2d 157 (1984) (indictments or other evidence of similar criminal conduct); Commonwealth v. Franks, 372 Mass. 866, 867, 362 N.E.2d 895 (1977) (seven untried indictments for sex-related offenses); Commonwealth v. Coull, 20 Mass.App.Ct. 955, 958, 480 N.E.2d 323 (1985) (prior sexual abuse charge which had been dismissed); Commonwealth v. Settipane, 5 Mass.App.Ct. 648, 653, 368 N.E.2d 1213 (1977) (...