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Appeals Court Vacates Defendant’s Sentence Due to Appearance of Impropriety by Sentencing Judge

gavel-1238036In Commonwealth v. Suarez, the Appeals Court vacated the defendant’s sentence for assault with intent to rape and remanded the case for resentencing before a different judge, because “the judge’s comments at sentencing risked creating at least the appearance that she sentenced [the defendant] for having committed either rape (a crime of which he was not convicted) or assault with intent to commit aggravated rape (conduct not recognized as a crime under the laws of the Commonwealth).”

The background was as follows. As the victim was walking home in the early morning hours of the date in question, “a man grabb[ed] her hair with one hand and cover[ed] her mouth with the other…. As they … struggle[d] …, he said, ‘I’m not going to kill you. I just want to have sex with you.’” The man “hit [the victim] and dragged her toward an alley…. [A]s she screamed for help, he tore off her clothes. As she was on the ground, with her ‘knees and [her] face … in the dirt,’ he was behind her and she could feel his penis touching her ‘butt’ and her vaginal area. At that moment, ‘[r]ight before it actually went to go penetrate [her], someone came around the corner.’ It was an Asian man [Chea]; he came closer and drew the attacker’s attention, allowing the victim to escape…. She ran over to a nearby fire station, where a firefighter brought her inside and called police and an ambulance.” In due course, the defendant was arrested and convicted of assault with intent to rape, kidnapping, indecent assault and battery on a person fourteen years of age or older, and assault and battery. On appeal, the defendant asserted that the judge’s statements at sentencing suggested “that the sentence of from twelve to eighteen years in State prison for assault with intent to rape had at least the appearance of being based on consideration of criminal conduct for which the defendant had not been convicted.”

In its decision, the Appeals Court stated, “Although the sentence [of twelve to eighteen years in prison for assault with intent to rape] was lawful insofar as it was less than the statutory twenty- year maximum, see G.L. c.265, §24, … we ‘may review the penalty imposed upon a defendant who has been sentenced for a crime other than that for which he stands convicted.’ Commonwealth v. Coleman, 390 Mass. 797, 804 (1984). Here, in explaining her sentence, the judge came perilously close to stating that she sentenced the defendant for committing crimes of which he was not convicted. The judge began by explaining to the defendant her view that he

should not benefit from the fortuity that Chea’s intervention stopped him from completing the rape…. The judge then went on to state her view that the assault with intent to rape charge of which the defendant had been convicted did not sufficiently capture the severity of his conduct.” She said, “‘I don’t believe that assault with intent to commit rape is exactly what happened. That was the crime that the Commonwealth had to charge, but the evidence suggests something quite different…. I am going to sentence you in accordance with what the [sentencing] guideline would be had the rape been completed, which is a 12-to-18-year sentence. That is what I understand assault with intent to commit aggravated rape, if that statute existed, that is the crime that I believe has occurred here.’ In short, the judge could be understood to have said that she sentenced the defendant for having committed rape (a crime of which he was not convicted) or for having committed assault with intent to commit aggravated rape (conduct that is not recognized as a crime under the laws of the Commonwealth)…. [Although] [t]he judge here could properly have considered that the assault with intent to rape was made more serious by the circumstances that (1) the defendant came very close to completing the rape and (2) the offense was committed in conjunction with a kidnapping, a factor that aggravates the punishment for a completed rape,” “we think that the larger principle of the appearance of fairness in sentencing still applies. A defendant leaving a courtroom to begin serving a lengthy prison term should not be left with the impression that he was sentenced for a crime of which he was not convicted or for a ‘crime’ that is not actually a crime under our laws.”

The type of sentence that a person receives, and the length of such a sentence, can have a substantial impact on a person’s life – both in terms of the time that is spent serving the sentence, as well as the longer lasting results of institutionalization and challenges of re-entry. In the event that a defendant is sentenced – whether it is after trial or following a plea, advocating for a favorable sentence and making sure that it is a lawful one is one of a lawyer’s most important responsibilities. If you or a loved one is facing a sentence, you will need an attorney who has the experience and skills to obtain the best possible result for you, and protect against any impropriety by the sentencing judge. Attorney Daniel Cappetta is such an attorney – call him for a free consultation today.

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