Opinion
19-P-915
05-14-2020
COMMONWEALTH v. ROBERT E. CANTELL.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In 1977, the defendant, Robert E. Cantell, was indicted on charges including rape, kidnapping, assault with a dangerous weapon, burglary, and unnatural acts. A jury found the defendant guilty on all charges. The trial judge imposed a life sentence on the rape charge, as well as an eight- to ten-year sentence to run on and after the life sentence on the kidnapping charge. The defendant was sentenced to three to five years on the assault with a dangerous weapon charge, ten to twelve years on the burglary charge, and three to five years on the unnatural acts charge. All three of these sentences were ordered to run concurrently with the life sentence. In 2018, the defendant filed a motion, pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), for a new sentencing hearing. The motion was denied. The defendant appeals from that order, claiming ineffective assistance of counsel at the sentencing hearing, and arguing that the trial judge refused to consider mitigating circumstances, and that the motion judge applied an incorrect legal standard in his denial of the motion for a new sentencing hearing. We affirm.
The defendant appealed from the convictions, as well as for a review of the sentence to the Appellate Division, and subsequently filed a motion to revise the sentence. The defendant's motion to revise the sentence was denied after a hearing, and his appeal to the Appellate Division was dismissed. The convictions were ultimately upheld by this court in 6 Mass. App. Ct. 958 (1978).
Discussion. 1. Ineffective assistance. The defendant first contends that his attorney provided ineffective assistance of counsel by failing to present the judge with certain mitigating evidence at the sentencing hearing. Specifically, the defendant claims counsel was ineffective for failing to expound upon the defendant's long-term care of his grandmother. We review the denial of a motion under Mass. R. Crim. P. 30 (b) to determine whether there has been a significant error of law or abuse of discretion. See Commonwealth v. Acevedo, 446 Mass. 435, 441 (2006).
Sentencing is considered "a critical stage of the criminal proceeding at which [the defendant] is entitled to the effective assistance of counsel." Commonwealth v. Lykus, 406 Mass. 135, 145 (1989), quoting Gardner v. Florida, 430 U.S. 349, 358 (1977). We consider counsel's conduct under the familiar Saferian standard. See Lykus, 406 Mass. at 146; Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). "In reviewing plea counsel's tactical decisions during the sentencing hearing, we consider whether counsel's tactics were 'manifestly unreasonable'" (citation omitted). Commonwealth v. Gilbert, 94 Mass. App. Ct. 168, 175-176 (2018). In claiming ineffective assistance of counsel at sentencing, the burden is on the defendant to show "that he would have received a lighter sentence had his counsel conducted himself any differently at sentencing." Id. at 175, quoting Commonwealth v. Fanelli, 412 Mass. 497, 503 (1992). We conclude that the defendant has not met this burden.
In this case, through counsel's sentencing argument, "the judge was exposed to a number of potential mitigating factors." Commonwealth v. Mamay, 407 Mass. 412, 425 (1990). The defendant's trial counsel argued the defendant's youth at the time of the offense; the fact that the defendant's mother had died four years earlier, leaving him in the care of his grandmother; his eleventh grade education; his employment at the time of the offense; and the fact that the defendant had only a minor criminal record and no prior history of incarceration. See Gilbert, 94 Mass. App. Ct. at 177 (counsel not ineffective for failing to present at sentencing hearing evidence of letters in support of defendant, where counsel had presented "considerable [other] mitigating information"). Cf. Osborne v. Commonwealth, 378 Mass. 104, 113 (1979) (counsel ineffective where he only raised one potential mitigating factor at sentencing). Counsel took the additional step of having the defendant examined by a doctor, and submitted a report to the judge in which the doctor asserted that the defendant's crimes were caused, at least in part, by his heavy drinking. See id. (alcohol abuse as mitigating factor). Finally, in the face of a potential life sentence on the rape conviction, see G. L. c. 265, § 22, as appearing in St. 1974, c. 474, § 1, defense counsel advocated vigorously for a significantly more lenient sentence of ten to fifteen years. Cf. Lykus, 406 Mass. at 146 (ineffective assistance where counsel failed to request benefit of concurrent sentences). Counsel's strategy and argument at the plea hearing, while unsuccessful, were not manifestly unreasonable. See Commonwealth v. Kolenovic, 471 Mass. 664, 674 (2015) (for purposes of ineffective assistance analysis, "reasonableness does not demand perfection").
Nor can the defendant demonstrate prejudice such that counsel's performance "deprived [him] of an otherwise available, substantial ground of defence," Saferian, 366 Mass. at 96, here, a lighter sentence. See Fanelli, 412 Mass. at 503. Even had the judge been aware of, and credited, the defendant's account of his kindness and attention to his grandmother and her medical needs, it is likely that "the brutality of [the crimes] would have overshadowed [that evidence]" in the judge's assessment. Commonwealth v. Wilson, 443 Mass. 122, 140 (2004). Counsel was not ineffective for failing to produce additional mitigating evidence, see Gilbert, 94 Mass. App. Ct. at 177; and the motion judge did not abuse his discretion in denying the defendant's motion for a new sentencing hearing. See Commonwealth v. Schand, 420 Mass. 783, 787 (1995).
We note that, as the defendant's grandmother testified at trial that the defendant was living with her at the time of the crime, the judge had an opportunity to see at least some evidence of the defendant's relationship with her.
The defendant does not claim error in the judge's denial of the motion without a hearing. We nonetheless conclude that the defendant's submissions raised no substantial issues warranting an evidentiary hearing. See Commonwealth v. Scoggins, 439 Mass. 571, 578 (2003).
2. Refusal to consider mitigating evidence. The defendant next asserts that the sentencing judge refused to consider the mitigating circumstances that were presented. We first note that this argument was not raised in the defendant's motion for a new trial, and is therefore waived. Mass. R. Crim. P. 30 (c) (2), as appearing in 435 Mass. 1501 (2001). See Commonwealth v. Randolph, 438 Mass. 290, 294-295 (2002) (waived claims reviewed for substantial risk of a miscarriage of justice). After hearing sentencing arguments from the defendant and the Commonwealth, see Mass. R. Crim. P. 28 (b), 378 Mass. 842 (1979), the sentencing judge considered the defendant's crime and stated "[t]here are no mitigating circumstances." In context, we take this statement as hyperbole, signifying only the judge's determination that the mitigating circumstances presented by counsel did not outweigh the seriousness of the defendant's crime. See Commonwealth v. Jones, 71 Mass. App. Ct. 568, 574-575 (2008) (sentencing judge determines weight given to mitigating factors). The record demonstrates that the judge considered the mitigating circumstances and exercised his discretion in determining a proper sentence. See Lykus, 406 Mass. at 145.
3. Legal standard. Lastly, the defendant claims that the motion judge applied an incorrect legal standard in deciding the motion for a new sentencing hearing by failing to address relevant language in Osborne, 378 Mass. at 114. Relying on Gilbert, 94 Mass. App. Ct. at 175, the motion judge concluded that the defendant failed to show prejudice arising from his attorney's omission because the defendant failed to demonstrate that "he would have received a lighter sentence had his counsel conducted himself any differently at sentencing." Id., quoting Fanelli, 412 Mass. at 503. The defendant claims error in the motion judge's application of this standard, and argues that the motion judge should have applied the standard articulated in Osborne, which states that "[t]he defendant is not obliged to prove a causal relationship between counsel's 'argument' and the sentences imposed and thus directly demonstrate prejudice." Osborne, 378 Mass. at 114. We do not read Osborne to mandate a different result. Gilbert does not require a criminal defendant to prove that the actual sentence imposed was caused by counsel's sentencing argument, see Osborne, 378 Mass. at 114; rather, it requires a criminal defendant to demonstrate that with the effective assistance of counsel, a different result might have been attained. See Gilbert, 94 Mass. App. Ct. at 175, quoting Mamay, 407 Mass. at 425. We do not read the cases to conflict with one another.
Order denying motion for new sentencing hearing affirmed.
By the Court (Sullivan, Desmond & Hand, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: May 14, 2020.