NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

SJC-12292

               COMMONWEALTH   vs.   SHAWN A. McGONAGLE.



       Suffolk.        October 5, 2017. - January 18, 2018.

     Present:     Gants, C.J., Gaziano, Lowy, Budd, Cypher, &
                             Kafker, JJ.


Constitutional Law, Sentence, Cruel and unusual punishment. Due
     Process of Law, Sentence. Practice, Criminal, Sentence.



     Complaint received and sworn to in the West Roxbury
Division of the Boston Municipal Court Department on April 3,
2015.

    The case was tried before Paul J. McManus, J.

     The Supreme Judicial Court granted an application for
direct appellate review.


     Max Bauer for the defendant.
     Cailin M. Campbell, Assistant District Attorney, for the
Commonwealth.


    LOWY, J.    General 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
                                                                     2


the victim and as to a recommended sentence."1      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

     1
         General Laws c. 258B, § 3 (p), provides:

     "for victims, to be heard through an oral and written
     victim impact statement at sentencing or the
     disposition of the case against the defendant about
     the effects of the crime on the victim and as to a
     recommended sentence, pursuant to [G. L. c. 279,
     § 4B], and to be heard at any other time deemed
     appropriate by the court. The victim also has a right
     to submit the victim impact statement to the parole
     board for inclusion in its records regarding the
     perpetrator of the crime."
                                                                      3


of due process.   We therefore answer both questions in the

negative and affirm.

    Background and prior proceedings.      Following 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.

    The 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.
                                                                    4


    Discussion.   The 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.

    1.   Eighth Amendment and art. 26.    In Booth, 482 U.S. at

509, the United States Supreme Court held that the introduction

of certain types of victim impact statements to a jury "at the

sentencing phase of a capital murder trial violates the Eighth

Amendment."   Specifically, the Court identified two prohibited

categories of victim impact statements:     (1) those providing

accounts of the emotional impact of the crime and descriptions

of the victims' personal attributes; and (2) those addressing

the victims' family members' opinions about the crime and the

defendant, and recommendations as to the defendant's sentence.

Id. at 502.   Four years later, however, the Court in Payne, 501

U.S. at 827, held that "the Eighth Amendment erects no per se
                                                                     5


bar" to the admission of the first category of victim impact

statements identified in Booth if the State authorizes their

admission.    The Court declined to reconsider the Eighth

Amendment's prohibition on the second category of victim impact

statements concerning "opinions about the crime, the defendant,

and the appropriate sentence."     Id. at 830 n.2.

    After the defendant was sentenced in this case, the Supreme

Court decided Bosse, 137 S. Ct. at 2, which clarified its

holdings in Booth and Payne.     The Court stated that Payne held

"that Booth was wrong to conclude that the Eighth Amendment

required . . . a ban" on the first category of victim impact

statements.    Id.   The Court then emphasized that Payne was

expressly limited to the first category of statements regarding

"the personal characteristics of the victim and the emotional

impact of the crimes on the victim's family."        Id., quoting

Payne, 501 U.S. at 817.     Thus, Booth's prohibition as to the

second category of victim impact statements concerning

"characterizations and opinions [from a victim's family] about

the crime, the defendant, and the appropriate sentence" remained

intact.   Bosse, supra.

    While the prohibition on the second category of victim

impact statements announced in Booth and reaffirmed in Bosse

remains binding precedent in capital murder trials, that

prohibition has no application here for two reasons.        First,
                                                                   6


this is not a capital murder case.   The Supreme Court in Booth,

482 U.S. at 509 n.12, expressly relied on the unique character

of the death penalty, a "punishment different from all other

sanctions," in rendering its decision (citation omitted).

Second, the victim impact statement in this case was made to a

judge who imposed the defendant's sentence, not to a jury.

While a jury in a capital murder trial may be unable to separate

relevant evidence from that which is unduly prejudicial, we

trust that judges, when weighing such statements as part of the

sentencing determination, will render decisions guided by the

best practices for individualized evidence–based sentencing,

according to law and logic, not emotion.   Cf. Fautenberry v.

Mitchell, 515 F.3d 614, 639 (6th Cir.), cert. denied, 555 U.S.

951 (2008) (concerns in Booth "are severely diminished -- if not

entirely obviated -- when the sentencer is a judge or a three-

judge panel, rather than a lay jury").

     We conclude that the Supreme Court's holding in Booth does

not apply to noncapital proceedings and, therefore, it does not

prohibit the statement at issue here.2   The dangerous uses to


     2
       We have never interpreted art. 26 of the Massachusetts
Declaration of Rights more broadly than the United States
Supreme Court has interpreted the Eighth Amendment to the United
States Constitution, Diatchenko v. District Attorney for the
Suffolk Dist., 466 Mass. 655, 667 n.13 (2013), S.C., 471 Mass.
12 (2015), and we decline to do so here because the concerns
that motivated the Court in Booth v. Maryland, 482 U.S. 496,
                                                                    7


which a jury in a capital murder trial may put a victim's

recommendation as to a particular sentence are not present at a

noncapital sentencing proceeding before a neutral, impartial

judge.3

     2.   Due process.   Having concluded that the United States

Supreme Court's holding in Booth, supra, under the Eighth

Amendment is limited to capital murder trials, we consider

whether the sentencing recommendation provision of G. L.

c. 258B, § 3 (p), nonetheless violates due process.4    Where, as

here, the statute does not affect a fundamental right or target

a suspect class, we apply the rational basis test.     Goodridge v.

Department of Pub. Health, 440 Mass. 309, 330 (2003).



505-509 (1987), are not implicated in the instant case.
     3
       We note the absence of any indication that the sentencing
judge in this case was unduly influenced by the victim's
sentencing recommendation. The judge specifically noted that it
was his, not the victim's, responsibility to impose a sentence,
the significance of which he clearly understood. Additionally,
the transcript reflects that, in sentencing the defendant, the
judge properly considered the nature and circumstances
surrounding the commission of the crime, the defendant's prior
criminal record, and the significant injuries the victim
sustained. See Commonwealth v. Rodriguez, 461 Mass. 256, 259
(2012); Commonwealth v. Lykus, 406 Mass. 135, 145 (1989).
     4
       The defendant does not specify whether he asserts this
claim under the Fourteenth Amendment to the United States
Constitution or the parallel provision of the Massachusetts
Declaration of Rights. Nevertheless, we analyze due process
claims in this area under the same framework. Goodridge v.
Department of Pub. Health, 440 Mass. 309, 353 (2003) (Spina, J.,
dissenting).
                                                                     8


"[R]ational basis analysis requires that statutes 'bear[] a real

and substantial relation to the public health, safety, morals,

or some other phase of the general welfare'" (citation omitted).

Id.   We note that "[t]he Legislature is presumed to have acted

rationally and reasonably."   Commonwealth v. Leis, 355 Mass.

189, 192 (1969).

      The Legislature enacted G. L. c. 258B, § 3, as part of an

initiative to "provide victims a meaningful role in the criminal

justice system . . . to the greatest extent possible."     Section

3 "was intended to change the 'traditional view' of victims from

virtually silent observers to active participants in the

criminal justice process."    Hagen v. Commonwealth, 437 Mass.

374, 380-381 (2002).    Consistent with this purpose, G. L.

c. 258B, § 3 (p), permits "victims . . . to be heard through an

oral and written victim impact statement at sentencing . . .

against the defendant about the effects of the crime on the

victim and as to a recommended sentence."    Absent this

legislative authorization, crime victims would not have an

opportunity to voice the impact of the crime at sentencing, even

though the criminal conduct has a direct impact on them.      See

Hagen, supra at 380.    Crime victims are unrepresented at trial.

The prosecutor is not their advocate; the prosecutor advocates

for the Commonwealth.   Id., quoting Taylor v. Newton Div. of the

Dist. Court Dep't, 416 Mass. 1006, 1006 (1993).    While victim
                                                                     9


impact statements give crime victims a voice at sentencing, a

victim's ability to state the impact of a defendant's criminal

conduct by recommending a particular sentence provides all

victims the language to express that impact, regardless of their

ability eloquently or precisely to verbalize the impact of the

crime.

     In addition to providing all crime victims a voice at

sentencing, the sentencing recommendation provision of G. L.

c. 258B, § 3 (p), assists judges in fashioning just and

appropriate criminal sentences.    "[T]o impose a just sentence, a

judge requires not only sound judgment but also information

concerning the crimes of which the defendant stands convicted,

the defendant's criminal and personal history, and the impact of

the crimes on the victims."    Commonwealth v. Rodriguez, 461

Mass. 256, 259 (2012).    A victim may use the opportunity to

recommend a particular sentence to the judge to urge imposition

of a lengthy sentence or to request mercy.    While the decision

to impose sentence rests exclusively with the judge, a victim's

recommendation, whether it be for a lenient sentence in the hope

of redemption or for a maximum sentence commensurate with harm,

is a relevant consideration in determining the appropriate

sentence to impose.5    Since the statute provides a mechanism for


     5
         The Superior Court Working Group on Sentencing Best
                                                                  10


victims to participate in the sentencing process in a way that

enhances judges' understanding of the impact of the crime, we

reject the defendant's argument that the sentencing

recommendation provision of G. L. c. 258B, § 3 (p), lacks a

rational basis.

    "Few, perhaps no, judicial responsibilities are more

difficult than sentencing.   The task is usually undertaken by

trial judges who seek with diligence and professionalism to take

account of the human existence of the offender and the just

demands of a wronged society."   Rodriguez, 461 Mass. at 259,

quoting Graham v. Florida, 560 U.S. 48, 77 (2010).    The concerns

underlying the Supreme Court's holdings in Booth and Bosse, that

sentencing decisions not be made based on emotion, apply in

nearly every sentencing decision.   They raise an important

caution.   When a crime victim recommends a particular sentence

to a judge, that judge must dispassionately consider that

recommendation, cognizant that the sentencing decision is the

judge's and the judge's alone.   We expect judges to make



Practices acknowledges that the impact of the defendant's
criminal conduct on the victim is a relevant consideration in
determining the appropriate sentence to impose. See Superior
Court Working Group on Sentencing Best Practices, Criminal
Sentencing in the Superior Court: Best Practices for
Individualized Evidence–Based Sentencing, at 5-6 (Mar. 2016)
("In formulating a criminal disposition, a judge should consider
. . . victim impact statements" and fashion sentence that is
"proportionate to . . . the harms done to crime victims").
                                                                 11


sentencing decisions devoid of emotion, prejudice, and the

relative status of a particular crime victim.

    Conclusion.   We all stand equal before the bar of justice,

and it is neither cruel nor unusual or irrational, nor is it

violative of a defendant's due process guarantees, for a judge

to listen with intensity to the perspective of a crime victim.

We affirm.

                                   So ordered.
