Thibodeau v. Com.

• Decision Date: 04 December 1974
• Citation: 366 Mass. 452,319 N.E.2d 712
• Parties: Russell THIBODEAU v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 712

319 N.E.2d 712

366 Mass. 452

Russell THIBODEAU v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Sept. 17, 1974.

Decided Dec. 4, 1974.

John F. Palmer, boston, for petitioner.

Andrew A. Athy, Deputy Asst. Atty. Gen. (Wade M. Welch, Asst. Atty. Gen., with him), for the Commonwealth.

Before TAURO, C.J., and REARDON, QUIRICO and WILKINS, JJ.

QUIRICO, Justice.

This is a petition for a writ of error seeking review of sentences imposed on the petitioner in two criminal cases. The case is here on the petitioner's exception to an order of a single justice of this court that the issuance of a writ be denied. There was no error.

We summarize the facts alleged in the petition. On January 31, 1968, the petitioner, having been found guilty by a jury of the crimes of assault and battery by means of a dangerous weapon and assault with intent to rape, was sentenced to a term of six to ten years on the first offense and one of eighteen to twenty-five years on the second offense, the sentences to be served concurrently at the Massachusetts Correctional Institutional at Walpole. At the time he imposed sentence the trial judge filed a document entitled 'Findings of Court Re: Sentencing.' The findings describe the defendant's attack upon, and attempt to rape, a sixteen year old girl on a public street. They also describe the force and violence which the defendant used, tearing off the victim's clothes from her waist down, and inflicting three knife wounds on her neck and back.

The judge found further that the district attorney, defense counsel and the probation officer 'concurred in the recommendation that the defendant should be seriously considered for examination, diagnosis, and possible confinement and treatment under the provisions of . . . (G.L. c. 123A, §§ 4 and 5).' Thereafter, instead of initiating proceedings under c. 123A to determine whether the petitioner was a 'sexually dangerous person' as defined in § 1 thereof, the judge sentenced the defendant to the two terms described above. As a part of his document containing his findings he said further: 'The Court has taken steps to have the incarcerating authorities informed that the Court makes the recommendation and agrees with the recommendation of all others concerned in the case. . . . I concur in the recommendation that this man should be diagnosed, and if found appropriate, should be confined to the treatment center under Chapter 123A,. However, in this case, I regard as my primary duty in the light of the case that I heard to make sure that the defendant is removed from circulation for a substantial period of years. I hope that the incarcerating authorities will in conjunction and in conformity to my recommendation transfer the defendant to the treatment center promptly after he begins to serve his sentences.'

The petitoner contends that it was error for the judge to sentence him to the Massachusetts Correctional Institution at Walpole instead of proceeding against him under G.L. c. 123A relating to sexually dangerous persons. He argues in his brief that '(b)y concluding that the petitioner herein was an appropriate subject for diagnosis at the Treatment Center, but nevertheless sentencing him to Walpole, the Court has improperly circumvented the statutory procedures enacted by the legislature for such appropriate cases.' We do not agree.

General Laws c. 123A, § 4, as appearing in St.1958, c. 646, § 1, provides in part that when a defendant is found guilty in the Superior Court of any one of certain specified crimes, including an attempt to commit rape, 'the court, may, upon its own motion or upon motion of the district attorney, prior to imposing sentence, commit him to the (treatment) center . . . for the purpose of examination and diagnosis under the supervison of . . . psychiatrists.' If the judge exercises his discretion under § 4 to commit the defendant to the treatment center before sentencing him, the examining psychiatrists in due course file a report of their examination and diagnosis with recommendations for the disposition of the defendant. Section 5 of the same statute provides that if the report 'clearly indicates that such person is a sexually dangerous person,' the court shall hold a hearing to determine whether the person is a sexually dangerous person, and that '(i)f the court finds that the person is a sexually dangerous person, it may, in lieu of the sentence required by law for the original offence, commit such person to the (treatment) center . . . for an indeterminate period of a minimum of one day and a maximum of such person's natural life.'

It is clear, both on the basis of the language of the statutes and our decisions thereunder, (a) that when the petitioner was found guilty the judge had discretion under § 4 either to sentence him or to start proceedings to determine whether he was a sexually dangerous person, and (b) that even if the judge had started such proceedings and found that the petitioner was a sexually dangerous person, he still would have had discretion under § 5 either to sentence him for his crimes or to commit him to the treatment center. Commonwealth wealth v. Gomes, 355 Mass. 479, 485--486, 245 N.E.2d 429 (1969); Gomes v. Gaughan, 471 F.2d 794, 798 (1st Cir. 1973). The petitioner does not argue to the contrary. Instead, recognizing, as he must, the rules stated above, he argues in the alternative that the judge, in sentencing the petitioner rather than committing him to the treatment center, either failed to exercise his discretion on the mistaken assumption that he had none, or he abused his discretion. This argument is without merit.

No fair and reasonable reading of the precise and careful statement of findings and other considerations which the judge placed on file before sentencing the petitioner can permit a conclusion that he was not aware that he could, at his discretion, either sentence the petitioner for his crimes or start proceedings to determine whether he was a sexually dangerous person. On the contrary, the judge's language compels a conclusion that he was fully aware of the two options open to him, and that in the exercise of his discretion he elected to sentence the petitioner for his crimes.

There is nothing whatever in the record to support the petitioner's claim that the judge abused his discretion. Here, the judge having a choice of two methods of disposing of the cases chose one method and the petitioner would have preferred the other. Under the statutes the choice of disposition rested with the judge and not with the petitioner. Resort to this court for appellate review must rest on a foundation of alleged legal error, and not merely on a difference of opinion on a matter initially committed to the discretion of the trial judge. This appeal is nothing more than a request that this court substitute its judgment for that of the judge. This we will not do.

We take notice of the fact that the date on which the petitioner will become eligible for parole consideration under his sentences (G.L. c. 127, § 133, as amended by St.1971, c. 464) may be much later than it would be if he had initially been committed to the treatment center in lieu of the sentences (G.L. c. 123A, § 9, as amended through St.1966, c. 608), but that fact affords him no basis for relief.

The petitioner makes the further contention that he was denied his rights under the due process clause of the Fourteenth Amendment to the United States Constituttion because the judge, in sentencing him, stated that he relied in part on the recommendation of a psychiatrist 'that in the event of verdicts of guility . . . (the petitioner) should be, 'Institutionalized for a long period of time. " The quoted language is based on the following paragraph of the psychiatric report in question: 'This young man (the present petitioner) should be considered highly dangerous and if found guilty by the court should be institutionalized for a long period of time. Because of his dangerousness in the sexual area, if he is found guilty, he should be evaluated as to whether he fits the definition of a Sexually Dangerous Person.' The psychiatric examination of the petitioner appears to have been made pursuant to G.L. c. 123, § 100, as it appeared prior to November 1, 1971, ¹ when it was superseded by G.L. c. 123, § 15. (See St.1970 c. 888, § 4; St.1971, c. 470; and St.1971, c. 760, § 12.)

The petitioner would have us read the language quoted above from the psychiatric report as a recommendation for the imposition of a long term of imprisonment. That is not a fair reading of that language or of the report as a whole. The quoted language follows the...