MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a probation violation hearing, a Superior Court judge found the defendant, Dedison Romeus, in violation of the terms and conditions of his probation and sentenced him to not less than four years and not more than four years and one day in State prison. The sentences were imposed on convictions of distribution of cocaine and distribution of heroin. On appeal, the defendant argues that the sentences improperly punished him for the violation conduct, rather than for the conduct for which he was convicted and placed on probation. We agree and remand for resentencing.
Background. In August of 2015, the defendant pleaded guilty to trafficking cocaine in an amount equal to or more than eighteen grams in violation of G. L. c. 94C, § 32E (b) (1), three counts of distribution of cocaine in violation of G. L. c. 94C, § 32A (a), and two counts of distribution of heroin in violation of G. L. c. 94C, § 32 (a).
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He was sentenced to not less than three years and not more than three years and one day in State prison for the trafficking offense, followed by a three-year term of probation on each of the five distribution counts.
In May of 2019, while on probation after having completed his term of imprisonment, the defendant was charged with new offenses, two counts of conspiracy to violate the drug laws in violation of G. L. c. 94C, § 40, and operating a motor vehicle with a suspended license in violation of G. L. c. 90, § 23. The charges were based, in part, on evidence that the defendant distributed heroin to a customer who overdosed and died after ingesting the heroin. The defendant was served with notice of the alleged probation violations based on the new charges and was detained pending a final hearing.
After that final hearing, a Superior Court judge found by a preponderance of the evidence that the defendant was in violation of the terms and conditions of his probation based on the new criminal conduct alleged in the probation violation notice.
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After hearing argument regarding disposition, the judge sentenced the defendant to a State prison term of not less than four years and not more than four years and one day, which exceeded the sentencing guideline range and the probation officers recommendation.
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On appeal, the defendant does not challenge the revocation of his probation. He argues that the judge erred by imposing a sentence that punished him for causing his customers lethal overdose.
Discussion. “Our review of criminal sentences is limited․ [We] review ․ only to determine if [the sentence] is illegal or unconstitutional.” Commonwealth v. Walters, 479 Mass. 277, 280 (2018). A sentence is “illegal or unconstitutional” if it is “in some way contrary to the applicable statute, ․ or is premised on a major misunderstanding by the sentencing judge as to the legal bounds of [her] authority” (quotation and citation omitted). Id.
A sentence for a violation of probation punishes the probationer “for the underlying offense for which a probationary sentence originally was imposed,” not “as punishment for the act or acts that prompted revocation of probation.” Commonwealth v. Odoardi, 397 Mass. 28, 30 (1986). See Commonwealth v. Rodriguez, 52 Mass. App. Ct. 572, 577 n.8 (2001) (“Although subsequent criminal conduct may be the occasion for revoking probation, the sentence should not punish for such conduct”). Thus, even though a judge has “considerable latitude” in fashioning an “appropriate individualized sentence,” Commonwealth v. Goodwin, 414 Mass. 88, 92 (1993), and may properly consider goals of “punishment, deterrence, protection of the public, and rehabilitation,” id., citing Cepulonis v. Commonwealth, 384 Mass. 495, 499 (1981), the sentence must be for the conduct underlying the convictions. With these principles in mind, we turn to the record of the sentencing hearing.
The judge began the sentencing portion of the hearing by asking for the probation officers recommendation and then inquired if the sentencing guideline range of two and one-half years “[took] into account the death of the victim.” The probation officer responded that it did not. After hearing further argument regarding disposition, the judge concluded:
“In my view, the evidence is very strong. Its above preponderance of the evidence in my view, that you are not only a drug dealer, but that you caused the death of a person who is not here to support you the way your family is here to support you. And in my view, that is the definition of a terrible, terrible problem in the Commonwealth of Massachusetts and the United States of America. Its not a problem thats going to go away until people stop making money from selling people drugs․
“Im going to sentence you to state prison for four years ․ [to] four years and a day, because I do not believe that the guideline sentence here adequately reflects the seriousness of your offense, which I believe was reasonably the cause of another persons death.”
The sentence imposed was well within the ten-year maximum permitted by the statute. See G. L. c. 94C, § 32 (a); G. L. c. 94C, § 32A (a). However, the judges reasoning for the sentence did not relate to the underlying offenses. Rather, the judges sentencing comments focused on the victims death. We agree with the defendant that the judges statements during the sentencing hearing indicate that she imposed the sentences based on the conduct that resulted in the overdose and death, rather than on the offenses for which the defendant was serving a term of probation.
Accordingly, the order revoking probation is affirmed. The order imposing sentence is vacated and the matter is remanded for resentencing.
So ordered.
affirmed in part; vacated in part and remanded
FOOTNOTES
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. The trafficking plea was to a lesser included offense of the original indictment which charged trafficking in an amount of cocaine equal to or in excess of one hundred grams. On each of the distribution counts the defendant was indicted as a second and subsequent offender. The defendant pleaded guilty as a first offender.
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. The violation notice listed the new charges pending in the Chelsea Division of the District Court Department, that is, unlicensed operation of a motor vehicle and conspiracy to violate the drug laws.
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. The probation officer recommended a sentence of from three years to three years and one day in State prison. The applicable sentencing guideline range was up to two and one-half years.