Hrycenko v. Commonwealth, 459 Mass. 503

Defendant pleaded guilty to operating a motor vehicle after a suspension for OUI and received a two-year sentence with one year to serve and two years probation, with no stay of execution.
Defendant telephoned his mother the day after sentencing from the jail, expressed anger, referred to the judge as a Ukranian term meaning “whore,” and disclosed where the judge lived in a subsequent call.
On December 27, 2007, the judge received a seven-page handwritten letter from the defendant asking her to commute or change the sentence and recounting alleged misstatements in court.
The judge testified the letter alarmed her, citing passages suggesting retaliation and knowledge of her family and household details.
State police interviewed the defendant; he declined to speak, but made statements indicating the letter was intended to obtain attention and change the sentence.
In June 2008 an indictment was returned under G. L. c. 268, § 13B; a jury trial occurred in August 2009 and ended in mistrial, leading to a motion to dismiss on double jeopardy grounds.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 13B applies to post-sentencing conduct	Hrycenko argues no pending proceeding, so statute not applicable	Defense maintains no ongoing proceeding at the time of actions	Statute applies to a criminal proceeding of any type, including posttrial actions
Sufficiency of evidence of intent to interfere with a criminal proceeding	Letters and conduct show intent to influence the judge's decision	Letter viewed as sympathy plea, not explicit intimidation	A rational jury could find intent to intimidate the judge from the total conduct
Posttrial conduct as basis for § 13B liability	Conduct post-sentencing may constitute intimidation of a judge under § 13B	No ongoing proceeding, so posttrial acts cannot violate the statute	Posttrial conduct can fall within § 13B’s scope when aimed at a judge

Commonwealth v. Cathy C., 64 Mass. App. Ct. 471 (Mass. App. Ct. 2005) (postverdict/after verdict considerations under 1996 version)
Commonwealth v. Robinson, 444 Mass. 102 (Mass. 2005) (1996 version required ongoing proceeding for intimidation)
Commonwealth v. Rivera, 76 Mass. App. Ct. 530 (Mass. App. Ct. 2010) (amended statute expanded scope to include judges as victims)
Choy v. Commonwealth, 456 Mass. 146 (Mass. 2010) (standard for sufficiency after double jeopardy motion; Latimore standard cited)
Commonwealth v. Latimore, 378 Mass. 671 (Mass. 1979) (latent elements sufficiency standard for criminal convictions)
Commonwealth v. Mosher, 455 Mass. 811 (Mass. 2010) (implications of disposition and timing in criminal proceedings)