COMMONWEALTH v. CORCHADO (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial in the District Court, the defendant, Christopher Corchado, was convicted of assault and battery on a family or household member in violation of G. L. c. 265, § 13M (a). The defendant appeals from his conviction, arguing that the judge improperly instructed the jury that the defendant and the victim were married. The defendant also appeals from the judge's sentencing decision, arguing that the judge erred in considering impermissible factors that resulted in an illegal sentence. As to the defendant's second argument, the Commonwealth concedes, and we agree, that the judge improperly extended the defendant's sentence. We therefore affirm the conviction, but remand for resentencing.

1. Jury instruction. The defendant argues that by using the word “wife” when referring to the victim, and by repeating it in his instruction to the jury, the judge “essentially negated the ‘family or household member’ element of the crime,” relieving the Commonwealth of its burden of proving that element and removing it from the jury's consideration. The judge initially instructed the jury on the elements of the crime as follows:

“In order to prove that the defendant is guilty of having committed the intentional assault and battery on a family member, the Commonwealth must prove [four] things beyond a reasonable doubt. 1. The defendant touched the person of his wife without having any right or excuse to having doing so ․ 2. That he intended to touch that person. 3. The touching was either likely to cause bodily harm to his wife or was offensive and done without her consent[.] 4. That the defendant and his wife [are] family or family members.”

At the close of the charge, the Commonwealth asked the judge to instruct the jury that spouses are family members as a matter of law. The judge asked defense counsel if she objected to his telling the jury that a wife is a family member, to which counsel replied, “No, your Honor. Not a contested issue.” The judge then addressed the jury and stated, “One last thing, I instruct you as a matter of law that a wife is a family member, in case you were wondering.”

The judge repeated the jury instructions two more times during deliberations, first when the jury asked him to repeat the elements of the crime, and immediately thereafter to correct himself for inadvertently having both left out the third element and repeated the fourth element in the prior instruction. In both of those two instructions, the judge added language to the effect that the defendant and the victim were husband and wife (“we both know from the testimony yesterday that they were husband and wife at the time of the offence”; “we know that they were husband and wife”). Indeed, the defendant argues that the judge referred to the victim as the defendant's wife twelve times, thereby “reinforcing it in the jury's awareness.” The defendant did not object to any of these references.

As the defendant did not object to the instructions or to the judge's references to the victim as the defendant's wife, we review to determine whether there was error, and if so, whether it created a substantial risk of a miscarriage of justice. See Commonwealth v. Whitman, 430 Mass. 746, 750 (2000); Commonwealth v. Bannister, 94 Mass. App. Ct. 815, 822 (2019).

“Trial judges are accorded considerable discretion in framing jury instructions, both in determining the precise phraseology used and the appropriate degree of elaboration.” Commonwealth v. Rogers, 96 Mass. App. Ct. 781, 784 (2019), quoting Commonwealth v. Newell, 55 Mass. App. Ct. 119, 131 (2002). Here, the judge's instructions were consistent with the model jury instructions. See Criminal Model Jury Instructions for Use in the District Court, Instruction 6.275 (2019). The judge correctly instructed the jury that, as a matter of law, a wife is a household or family member. See G. L. c. 265, § 13M (c) (defining “family or household member” as, inter alia, “persons who ․ are or were married to one another”).

Although the fourth element was not contested, the defendant is correct that the parties did not formally stipulate to it. See Commonwealth v. Kurko, 95 Mass. App. Ct. 719, 721-722 (2019). See also Mass. R. Crim. P. 23 (a), 471 Mass. 1501 (2015) (stipulations to essential elements of crime must be in writing and signed by defendant, defense counsel, and prosecutor, and may be introduced into evidence). The judge should have left it for the jury to decide whether the victim was the defendant's wife, thus satisfying the fourth element. However, the error did not create the slightest risk of a miscarriage of justice, let alone a substantial one.² See Commonwealth v. Garcia, 82 Mass. App. Ct. 239, 250 (2012) (“Generally, there is not a substantial risk of a miscarriage of justice where an improper jury instruction concerned an element that the defendant did not contest at trial”).

Unlike in Kurko, 95 Mass. App. Ct. at 721-722, where absent a stipulation there was no evidence to establish the existence or terms of the harassment prevention order at issue, here, there was abundant evidence that the defendant and the victim were husband and wife. The defendant, the victim, and the victim's brother all testified to that fact. In their closing arguments, both defense counsel and the prosecutor referred to the parties as husband and wife. See Commonwealth v. Childs, 445 Mass. 529, 534 (2005) (no substantial risk of miscarriage of justice where improper jury instruction “could not have affected the jury's verdict”); Commonwealth v. Robinson, 444 Mass. 102, 107 (2005) (no substantial risk of miscarriage of justice where “judge's instruction[al] [error] did not go to any disputed issue in the case or otherwise compromise the theory of defense”).

2. Sentencing. The defendant argues, and the Commonwealth concedes, that the judge considered impermissible factors when sentencing the defendant.³ The defendant requested a sentence of four months committed, deemed served. The Commonwealth recommended a split sentence -- one year committed, with credit for time served (145 days), and the balance suspended for one year. The judge inquired about the defendant's status with Immigration and Customs Enforcement (ICE), and whether there was an active detainer. He then added five days to the defendant's sentence over the Commonwealth's recommendation “to give ICE an opportunity to pick him up.”⁴ After sentencing, in clarifying his instructions to his clerk, the judge stated, “He is not released. He is held for, he still serves [five] more days until -- to give ICE an opportunity to pick him up.”

In general, judges “enjoy[ ] significant latitude in sentencing,” Commonwealth v. Mayotte, 475 Mass. 254, 265 (2016), “provided the sentence does not exceed statutory limits.” Commonwealth v. Celeste, 358 Mass. 307, 310 (1970). However, a judge may not rely on improper or impermissible factors in sentencing; to do so creates a substantial risk of a miscarriage of justice. See Commonwealth v. Mills, 436 Mass. 387, 398-399 (2002); Commonwealth v. LeBlanc, 370 Mass. 217, 221 (1976); Commonwealth v. Lender, 66 Mass. App. Ct. 303, 307 (2006). Here, although the sentence imposed was within the lawful range permitted by G. L. c. 265, § 13M (a), it was evident that the judge increased the sentence by five days because of the defendant's immigration status. The five-day increase, for this purpose, was improper. “[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.” LeBlanc, supra. A sentencing decision for the purpose of maintaining physical custody for Federal immigration authorities to arrive relies on an improper consideration. See Lunn v. Commonwealth, 477 Mass. 517, 527-528 (2017); Mills, supra at 399-400.

Conclusion. The conviction is affirmed, but the sentence is vacated, and the case is remanded to the District Court for resentencing consistent with this memorandum and order.⁵

So ordered.

FOOTNOTES

2.   The defendant argues that his right to due process was violated and that the judge's error was so “severe” that it constituted reversible error. We disagree. The error is “not among the very limited class of structural errors subject to automatic reversal, and upon proper objection would [have been] subject to harmless error analysis.” Commonwealth v. Redmond, 53 Mass. App. Ct. 1, 7 (2001).

3.   Although the Commonwealth's concession is commendable, “it does not relieve us of our appellate function of determining whether error was committed.” Commonwealth v. Clark, 23 Mass. App. Ct. 375, 379 (1987).

4.   Specifically, the judge sentenced the defendant to “[one] year in the [h]ouse of [c]orrection[ ] credit for 145 days, he has to serve [five] months [sic] to give ICE an opportunity to pick him up. ․ [M]y ․ respectful suggestion to probation is that they call ICE right now and ․ he is held until ICE makes a determination one way or the other.”

5.   Where an illegal sentence is imposed, a defendant has the option of filing a motion to revise and revoke his sentence pursuant to Rule 29 of the Rules of Criminal Procedure, as appearing in 474 Mass. 1503 (2016). However, “[i]f a sentence is unlawful, we [may] set aside the imposed sentence and remand the case ․ for appropriate resentencing.” Commonwealth v. Woodward, 427 Mass. 659, 683 (1998).