COMMONWEALTH v. MCNULTY (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 2004, after a jury trial, the defendant was convicted of murder in the first degree and of two counts of assault and battery by means of a dangerous weapon (“ABDW”). He was sentenced to life imprisonment without parole, and two consecutive four to six year terms to run on and after the life sentence. On appeal, the Supreme Judicial Court reversed the murder conviction, and set aside the verdict. The court affirmed the judgments on the ABDW charges and the case was remanded for a new trial on the murder indictment and for resentencing on the ABDW convictions.² The defendant was resentenced to two consecutive four to six year terms on the ABDW convictions. After a jury retrial on the murder charge, the defendant was convicted of voluntary manslaughter and sentenced to eighteen to twenty years, to be served on and after the sentences imposed for the ABDW convictions.³

The defendant now appeals from an order of a Superior Court judge denying his motion for a new trial or to correct an illegal sentence.⁴ On appeal, he argues that (1) the sentence structure which he received following retrial resulted in a more severe sentence than he had originally received, (2) the sentencing decision was influenced by judicial bias, and (3) the Department of Correction miscalculated his date of parole eligibility. We affirm.

Discussion. We review the denial of a motion for a new trial or to correct an illegal sentence for an abuse of discretion or error of law. See Commonwealth v. Perez, 477 Mass. 677, 681-682 (2017). “We ‘examine the motion judge's conclusion only to determine whether there has been a significant error of law or other abuse of discretion.’ ” Commonwealth v. Lavrinenko, 473 Mass. 42, 47 (2015), quoting Commonwealth v. Grace, 397 Mass. 303, 307 (1986).

1. Retrial sentence. The defendant argues that his retrial sentence was more severe than his original sentence, and thus illegal. We agree with the motion judge that there is “no substantial issue regarding sentencing.” Moreover, further review of the defendant's argument is foreclosed by the principle of direct estoppel. “[U]nder the doctrine of direct estoppel, a defendant is barred from seeking review of claims ‘actually litigated’ and decided against him.” Commonwealth v. Coutu, 88 Mass. App. Ct. 686, 699 (2015), quoting Commonwealth v. Rodriguez, 443 Mass. 707, 710 (2005).

The defendant presents essentially the same argument as put forth in the direct appeal from his manslaughter conviction. This argument was considered and decided in the defendant's direct appeal from his second trial, and he is barred from litigating it again.⁵

2. Judicial bias. The record before us does not support the defendant's claim that the trial judge exhibited improper personal bias that interfered with his sentencing decision. “A judge has considerable latitude within the framework of the applicable statute to determine the appropriate individualized sentence.” Commonwealth v. Goodwin, 414 Mass. 88, 92 (1993). It is within the judge's proper discretion to consider “the defendant's behavior and ․ ‘the nature of the offense and the circumstances surrounding the commission of the crime.’ ” Commonwealth v. Jones, 71 Mass. App. Ct. 568, 572 (2008), quoting Commonwealth v. Derouin, 31 Mass. App. Ct. 968, 970 (1992).

The transcript of the 2012 sentencing hearing reflects these considerations.⁶ The judge took note of the brutal nature of the crime, the lasting emotional impact the crime had on the victims, and the defendant's “indifference” to the victims' severe injuries.⁷ See Commonwealth v. Rodriguez, 461 Mass. 256, 259 (2012) (“Therefore, to impose a just sentence, a judge requires not only sound judgment, but information concerning the crimes of which the defendant stands convicted ․ and the impact of the crime on the victims”). Such observations reflected neither a hostility toward the defendant nor represented the judge's personal and private beliefs. Contrast Commonwealth v. Mills, 436 Mass. 387, 401 (2002) (judge improperly introduced his religious and moral beliefs into sentencing considerations). The sentence imposed was within the statutory guidelines and was informed by the appropriate factors. We perceive no bias.

3. Parole eligibility. The defendant's claim that the Department of Correction (DOC) miscalculated his parole eligibility date is not properly before us. Claims of error in the DOC's calculation of a sentence or the date of parole eligibility may be resolved only as a petition for a writ of habeas corpus or in an action for declaratory judgment. See Hennessy v. Superintendent, Mass. Correctional Inst., Framingham, 386 Mass. 848, 850-851 (1982); Commonwealth v. Melo, 65 Mass. App. Ct. 674, 676-677 (2006). Such a claim may not be brought in a motion for a new trial or to correct an illegal sentence. See id. at 676. Accordingly, the order denying the defendant's motion for a new trial or to correct an illegal sentence is affirmed.

So ordered.

Affirmed

FOOTNOTES

2.   See Commonwealth v. McNulty, 458 Mass. 305 (2010).

3.   A different panel of this court affirmed the judgments after retrial in an unpublished decision. See Commonwealth v. McNulty, 85 Mass. App. Ct. 1124 (2014).

4.   We note that the judge who heard the motion was the same judge who presided over both trials and imposed sentence. The motion for a new trial was heard by a different judge.

5.   “Suffice it to say that we see no merit in [the defendant's] argument that his second trial resulted in a sentence impermissibly more severe than his first. The fact that he must serve the ABDW sentences because he is no longer sentenced to life imprisonment for first degree murder, but rather to a term of years on the lesser crime of manslaughter, does not make his second sentence more severe.” Commonwealth v. McNulty, 85 Mass. App. Ct. 1124 (2014).

6.   Because the defendant did not request a copy of the transcript of the 2011 sentencing hearing until after he had filed a motion for a new trial or to correct an illegal sentence, the motion judge dismissed the request as moot and untimely. Thus, the 2011 sentencing transcripts, and any alleged showing of judicial bias therein, were not part of the record on this appeal. Our decision does not preclude the defendant from making a renewed request for the 2011 transcripts from the trial court. A trial judge has discretion to authorize funds for indigent defendants to obtain transcripts to prepare a motion for a new trial, but the judge is not constitutionally mandated to do so. See Diatchenko v. District Attorney for the Suffolk Dist., 471 Mass. 12, 26-27 & n.27 (2015). See also Reporter's Notes to Rule 30 (c) (5), Mass. Rules of Court, Rules of Criminal Procedure, at 204 (Thomson Reuters 2020) (giving judge discretion to allow costs associated with new trial motion, including preparation of transcripts, when judge determines that costs are justified by meritorious grounds).

7.   At trial, outside the presence of the jury, the judge read from a letter that he had received from a member of the Salem Fire Department. Contrary to the defendant's claim, the judge's decision to read the letter into the record, thus giving notice to all parties, was appropriate. See S.J.C. Rule 3:09, Canon 2, Rule 2.9(B) (2016).