Com. v. LeBlanc

Citation370 Mass. 217,346 N.E.2d 874
Decision Date04 May 1976
CourtUnited States State Supreme Judicial Court of Massachusetts

Margaret D. McGaughey, Boston, for defendant.

Alan L. Kovacs, Asst. Dist. Atty., for the Commonwealth.


WILKINS, Justice.

We consider here the extent to which a judge imposing a sentence may be advised of, give consideration to, or conduct an investigation of other criminal charges pending against the defendant. We conclude that (1) there is no constitutional objection to a sentencing judge knowing of unresolved criminal prosecutions against a defendant, and (2) the statutes of the Commonwealth call for that information to be before the sentencing judge, but (3) a sentencing judge should not permit a defendant's sentence to vary depending on whether the defendant has demonstrated his innocence of an unrelated, pending charge. Here the record suggests that the defendant may have been so prejudiced, and accordingly, we order a reconsideration of the defendant's motion to revise or revoke his sentence.

In January, 1975, the defendant pleaded guilty to indictments for assault with intent to rape and assault and battery by means of a dangerous weapon, committed in October, 1972. The Commonwealth recommended a five-year sentence in the Concord reformatory. The defendant's counsel argued for a suspended sentence. The judge expressed an interest in a June, 1973, kidnapping charge pending against the defendant in Essex County. The judge said at that time that he did not know whether probation or a term of incarceration was the more appropriate sentence. 'It may be that I might be disposed for probation but certainly not at this moment with the uncertain state of affairs concerning that Essex case.' He continued the matter of sentencing, adding, 'If that's another case involving assault and kidnapping, that's one state of affairs. If, not, that's something else again.'

The subject of sentencing was taken up again two days later. Defense counsel, who did not represent the defendant in the Essex County proceeding, stated that he had spoken to the defendant's Essex County counsel who told him that there were contradictions in the complainant's story. The judge, who now had papers relating to the Essex County case (which are not in the record here), 1 pressed defense counsel further, stating, 'I'm just curious as to what his story was to having an eight-year-old girl in his car.' At that time, defense counsel did not challenge the judge's consideration of the Essex County case, but again recommended a suspended sentence with probation. The judge sentenced the defendant to the Massachusetts Correctional Institution at Walpole for a term not exceeding seven years or less than five. 2

The defendant filed a timely motion to revise or revoke the sentence. See G.L. c 278, § 29C. At the hearing on the motion, defense counsel argued that under G.L. c. 279, § 4A, a pre-sentence report should not contain information about any pending case and that no pending case should be considered in sentencing. The defendant has appealed from the denial of his motion, arguing that he was denied his statutory rights and his constitutional right to due process of law. We transferred the appeal here from the Appeals Court on our own motion.

1. There is no constitutional objection to a sentencing judge knowing of the existence of other pending charges against an offender.

The Supreme Court of the United States has not dealt directly with the question whether a sentencing judge may consider pending charges or evidence of other criminal conduct in imposing sentence. In some cases, the fact that the judge considered such circumstances has been before that Court, but the issue of the propriety of that conduct was not discussed by the Court. See Gregg v. United States, 394 U.S. 489, 490, 89 S.Ct. 1134, 22 L.Ed.2d 442 (1969); Williams v. New York, 337 U.S. 241, 244, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949). Although the sentencing processes is not free from due process scrutiny (United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972); Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948)), that Court has indicated that a sentencing judge has discretion to consider a broad range of information in imposing sentence. Williams v. New York, supra, 337 U.S. at 246--250, 69 S.Ct. 1079. See Commonwealth v. Celeste, 358 Mass. 307, 310, 264 N.E.2d 683 (1970).

Numerous opinions of other courts indicate that there is no 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 for which there has been no conviction. 3 In a minority of States where the sentencing judge may not consider such information, the exclusion of such information does not appear to derive from a constitutional requirement. 4 Due process would require resentencing if the sentencing judge had relied on information which was inaccurate or misleading (Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948)), a prior conviction later revealed to be constitutionally infirm (United States v. Tucker, 404 U.S. 443, 448--449, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972)), or allegations of other criminal conduct which were wholly unreliable (United States v. Weston, 448 F.2d 626, 633 (9th Cir. 1971)). 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. 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). Rosado v. State, 70 Wis.2d 280, 283--284, 234 N.W.2d 69, 73, 74 (1975).

3. The defendant argues further, however, 909, 90 S.Ct. 907, 25 L.Ed.2d 90 (1970).

2. Section 4A of G.L. c. 279, which is set forth in the margin, 5 requires that before disposition, where the offense is punishable by imprisonment for more than one year, the judge must obtain from the court's probation officer 'all available information relative to prior criminal prosecutions, if any, of the defendant and to the disposition of each such prosecution.' The record must not include any information concerning a prior criminal proceeding in which the defendant was found not guilty. Section 85 of G.L. c. 276 imposes a parallel duty on each probation officer to furnish such information prior to disposition and also 'before such person is admitted to bail.'

We do not accept the defendant's argument that the relevant statutes direct that the pre-sentence record furnished to a sentencing judge should not include information concerning other pending criminal proceedings. 6 Therefore, because there are no constitutional objections to the judge knowing of the existence of pending criminal proceedings, the defendant has no basis to object to the judge's knowledge of the kidnapping charge pending in Essex County.

3. The defendant argues furtherHowever, that even if a judge properly could have information that another criminal proceeding was pending against him, he should not inquire into the circumstances of that other proceeding. One risk is that the sentencing judge will conclude that the defendant is guilty of the other crime and will increase the penalty he otherwise would haveimposed. If thereafter the defendant is convicted of that other crime and sentenced, there may be some duplication in the two penalties imposed. If, on the other hand, the defendant is found not guilty of that other crime, consideration of the pending charge may have been inappropriate and perhaps prejudicial 7

In Brown v. Commonwealth, 335 Mass. 476, 482, 140 N.E.2d 461, 465 (1957), this court reversed a conviction because of a combination of prejudicial happenings which amounted to a failure to secure a fundamentally fair trial in violation of art. 12 of the Declaration of Rights of the Massachusetts Constitution. One of the circumstances referred to by the court was the fact that '(p)rior to sentence the judge inquired about and considered charges of robberies against the petitioner pending in (another county) and not tried.' Fairness suggests that a sentencing judge should not permit the sentence to vary because of his belief that the defendant is guilty of unrelated, pending criminal charges. At such later time as any other pending charge may be resolved against the defendant, the circumstances relating to that charge appropriately become a consideration in that sentencing process, along with the fact of any sentence earlier imposed on the defendant.

We do not fault the judge, however, for inquiring concerning the general nature of the Essex County charge. The defendant's counsel asserted that the defendant had not been involved in any criminal activity since an incident in 1973. The judge then adverted to the record of the charge then pending in Essex County against the defendant for kidnapping. Certainly the judge had a right to be concerned with evidence relating to the character of the defendant and tending to contradict the representation by counsel. Indeed, at that time defense counsel did not challenge the judge's right to consider the circumstances of the Essex County charge.

A judge's knowledge of the existence and general nature of other pending criminal charges may serve a worthwhile public purpose. If the nature of the crimes is similar, a judge may be prompted to require special investigations before sentencing. See, e.g., G.L. c. 123A, § 4, providing for pre-sentence commitment for examination and diagnosis of a person who may be sexually dangerous. Moreover, in assessing the defendant's character, the judge rightly can be influenced by the existence of other charges pending against the defendant....

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