Heard: October 5, 2017.
received and sworn to in the West Roxbury Division of the
Boston Municipal Court Department on April 3, 2015.
case was tried before Paul J. McManus, J. The Supreme
Judicial Court granted an application for direct appellate
Bauer for the defendant.
M. Campbell, Assistant District Attorney, for the
Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, &
Laws c. 258B, § 3 (p), permits "victims . . . to be
heard through an oral and written victim impact statement at
sentencing . . . about the effects of the crime on the victim
and as to a recommended sentence." We transferred this
case here on our own motion to answer two questions: first,
whether the United States Supreme Court's recent decision
in Bosse v. Oklahoma, 137 S.Ct. 1 (2016)
(per curiam), precludes a sentencing judge from considering
victim impact statements "as to a recommended
sentence" under the Eighth Amendment to the United
States Constitution and art. 26 of the Massachusetts
Declaration of Rights; and second, whether the sentencing
recommendation provision violates the defendant's
constitutional guarantee of due process. We conclude that a
sentencing judge's consideration of victim impact
statements "as to a recommended sentence" is
constitutional because the concerns underpinning the Supreme
Court's treatment of victim impact statements before a
jury during the sentencing phase of a capital murder trial
differ from those at issue here. We further conclude that a
victim's right to recommend a sentence pursuant to G. L.
c. 258B, § 3 (p), satisfies the requirements of due
process. We therefore answer both questions in the negative
and prior proceedings.
a trial in the District Court, a jury convicted the
defendant, Shawn McGonagle, of assault and battery, G. L. c.
265, § 13A. At the defendant's sentencing hearing,
the Commonwealth requested that the defendant be sentenced to
two and one-half years in a house of correction, the maximum
possible sentence under the statute, to be served from and
after his release on an unrelated one-year sentence for
violating an abuse prevention order. Immediately after the
Commonwealth's recommendation, the victim gave an impact
statement, during which he told the judge, "I would like
. . . for [the defendant] to get the maximum [sentence], and
not concurrent." The defendant then requested a sentence
of nine months in a house of correction to be served
concurrently with his unrelated sentence.
judge sentenced the defendant to eighteen months in a house
of correction to be served concurrently with the sentence he
was then serving. This was a lesser term of imprisonment than
the maximum possible sentence or the sentences recommended by
both the Commonwealth and the victim. The judge did not
explicitly reference the victim's statement, but
explained that in deciding the appropriate sentence, he
placed great weight on the victim's injuries and the
defendant's criminal record.
defendant does not challenge G. L. c. 258B, § 3 (p), in
its entirety, but instead only challenges the portion of the
statute that permits victims to provide an impact statement
"as to a recommended sentence." The defendant
relies on Booth v. Maryland, 482 U.S. 496
(1987); Payne v. Tennessee, 501 U.S. 808
(1991); and Bosse, 137 S.Ct. 1, to support his claim
that a victim's recommendation as to a particular
sentence violates the proscription against cruel and unusual
punishments under the Eighth Amendment, and its "cruel
or unusual punishments" counterpart under art. 26. The
defendant further contends that allowing a victim to
recommend a particular sentence violates due process.