12 N.E.3d 1029
Mass. App. Ct.2014Background
- Victim Michael, who lived with the defendant in the mid-1990s, testified at trial that the defendant repeatedly molested him as a child and threatened him to prevent disclosure. The defendant did not challenge sufficiency of the evidence.
- The defendant had a 1999 conviction for rape by force of Michael’s sister and was serving 15–25 years when tried in 2012 for rape of a child by force and indecent assault and battery on a child under 14.
- At a bench trial as a subsequent offender, the judge initially sentenced the defendant to concurrent terms of 7–10 years (rape) and 5–7 years (indecent assault), to run concurrently with the 1999 sentence.
- Two weeks later, after the defendant filed a notice of appeal, the judge, sua sponte and under Mass. R. Crim. P. 29(a), convened a hearing, gave notice and an opportunity to be heard, and increased the rape sentence to 12–18 years (leaving the other sentence unchanged), extending total incarceration by roughly 6–7 years.
- During trial a social worker briefly referenced other events involving the defendant and the sister; the judge immediately sustained an objection, struck the remark, and gave a strong curative instruction. The defendant’s motion for mistrial was denied.
Issues
| Issue | Commonwealth's Argument | Baptista's Argument | Held |
|---|---|---|---|
| Whether a judge may increase a sentence under Mass. R. Crim. P. 29(a) after the defendant filed a notice of appeal without creating a presumption of vindictiveness | Rule 29(a) permits revision within 60 days when "justice may not have been done"; judge used the rule properly after notice and hearing | The timing (after notice of appeal) creates a Pearce-based presumption of vindictiveness that chills the right to appeal | Rule 29(a) increase is permissible; Pearce presumption inapplicable here; defendant could still show actual vindictiveness but record contains no such evidence and judge complied with required procedures |
| Adequacy of judge’s procedural safeguards when increasing sentence (notice, opportunity to be heard, on-record reasons) | The judge gave notice, heard argument, and stated reasons showing the revision was justified | The post-appeal timing renders those safeguards insufficient as a matter of law | Judge satisfied procedural requirements (notice, opportunity, stated reasons); findings and reasons were placed on the record |
| Whether the judge’s stated reasons for increasing sentence were legitimate | Revision justified by delayed disclosure due to intimidation, prior related offense, and guideline range; within statutory bounds | Revision was retaliatory or unsupported | The stated reasons were legitimate, within guidelines and statutory limits; no vindictiveness shown |
| Whether a fleeting, vague witness reference to prior misconduct required mistrial | Immediate objection, sustained; strong curative instruction suffices except in extraordinary cases | The reference injected impermissible prior-bad-acts evidence and warranted mistrial | Denial of mistrial not an abuse of discretion: remark was brief, vague, and immediately struck; jurors presumed to follow the instruction |
Key Cases Cited
- North Carolina v. Pearce, 395 U.S. 711 (1969) (due process prohibits retaliatory sentencing following successful appeal and retrial; requires reasons for increased sentence)
- Alabama v. Smith, 490 U.S. 794 (1989) (Pearce presumption extends to circumstances creating a reasonable likelihood of vindictiveness)
- Wasman v. United States, 468 U.S. 559 (1984) (where Pearce prophylaxis does not apply, defendant may show actual vindictiveness)
- Aldoupolis v. Commonwealth, 386 Mass. 260 (1982) (discusses judge’s authority under Mass. R. Crim. P. 29 and need for notice, opportunity to be heard, and on‑record reasons)
- Commonwealth v. Sitko, 372 Mass. 305 (1977) (stating that findings and supporting reasons are important when increasing a sentence)
- Commonwealth v. Thibeau, 11 Mass. App. Ct. 677 (1981) (no indication of vindictiveness where judge followed proper procedure)