COMMONWEALTH v. BAPTISTE (2021)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the Boston Municipal Court, the defendant was found guilty of negligent operation of a motor vehicle, resisting arrest, and threat to commit a crime. The judge imposed concurrent terms of incarceration on the latter two charges of eighteen months to be served at the House of Correction followed by an eighteen-month term of probation on the conviction of negligent operation of a motor vehicle. The defendant served the committed portion of his sentence and was on probation in August 2018, when the probation department served him with a notice of violation. The notice alleged that the defendant had failed to (1) submit to a drug test, (2) report to the probation department as required, and (3) provide the department with an accurate address. Thereafter, certain conditions of the defendant's probation were amended.

Less than one year later, on March 8, 2019, the probation department issued a new notice of violation, alleging that the defendant had violated the conditions of his probation by committing new criminal offenses, failing to complete a fatherhood program, and failing to report to court as ordered. The new criminal offenses included assault with a deadly weapon, resisting arrest, carrying a loaded firearm, unlawful possession of ammunition, possession with the intent to distribute class B and class D substances, improper storage of a firearm, assault and battery, and threats to commit a crime.

A violation of probation hearing, at which multiple witnesses testified, was held on May 22, 2019. At the conclusion of the hearing, the judge found the defendant violated the conditions of his probation by committing new criminal offenses, failing to complete the fatherhood program, and failing to report to probation. On the same day, May 22, 2019, the judge issued an order revoking the defendant's probation and imposing a two-year term of incarceration. The defendant subsequently filed motions to revise and revoke and for reconsideration of the sentence, claiming that the judge considered improper factors when he imposed the two-year sentence and that the judge's comments demonstrated that he was biased against him and his lawyer. In a thorough memorandum and order dated July 23, 2019, the judge denied both motions and provided a detailed explanation of the factors he considered when he imposed the two-year sentence. The defendant thereafter appealed from the May 22 and July 23, 2019 orders. We have conducted a careful review of the record and conclude that there is no basis for vacating the sentence as the defendant requests. Accordingly, we affirm.

Discussion. The defendant acknowledges that the two-year sentence was lawful as it did not exceed the permissible statutory limit for negligent operation of a motor vehicle. Commonwealth v. McCravy, 430 Mass. 758, 767 (2000). It is not within our power to review a lawful sentence. Id. Here, however, the defendant claims that the judge sentenced him for crimes other than the one for which he was convicted and that the judge was influenced by his personal animosity against the defendant and his attorney. Given these assertions, it is within our power to review the disposition. Id.

We are not persuaded that the sentence was based on improper considerations. Although some of the judge's comments during the sentencing hearing referred to the conduct that led to the defendant's new criminal charges, we accept the judge's explanation in his memorandum and order that he considered “the behavior exhibited by the defendant while on probation” as the determinative factor in deciding the appropriate sentence and did not punish the defendant for committing new criminal offenses.

A defendant's history of noncompliance with the terms of probation “sheds light on the permissible considerations of deterrence, protection of the public, and rehabilitation,” and is an appropriate consideration. Commonwealth v. Doucette, 81 Mass. App. Ct. 740, 745 (2012).

The defendant's argument that certain statements made by the judge during the course of the hearing revealed personal animosity towards him or his attorney is similarly unpersuasive. Although we acknowledge that there were some terse exchanges between the judge and defense counsel, the record does not support the defendant's assertion that the judge's personal feelings “infiltrate[d] his sentencing decision.” Cf. Commonwealth v. Mills, 436 Mass. 387, 401 (2002). To the contrary, our review of the record leads us to conclude that the judge imposed a two-year sentence based on the seriousness of the conduct on which the conviction of negligent operation of a motor vehicle was based and not on any personal bias.

Order revoking probation and imposing sentence affirmed.

Order denying motions to reconsider and to revise and revoke sentence affirmed.