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25-P-347 Appeals Court 25-P-607
COMMONWEALTH vs. MICHAEL HAYES (and a companion case1).
Nos. 25-P-347 & 25-P-607.
Middlesex. October 3, 2025. - September 24, 2026.
Present: Rubin, Shin, & Singh, JJ.
Stalking. Intimidation of Witness. Witness, Intimidation.
Protective Order. False Impersonation & Identity Fraud.
Unauthorized Access to Computer System. Search and
Seizure, Warrant, Computer. Cellular Telephone.
Electronic Mail. Evidence, Photograph, Authentication.
Practice, Criminal, Motion to suppress, Warrant, Required
finding, Instructions to jury, Sentence.
Indictments found and returned in the Superior Court Department on February 5, 2021, and June 29, 2022.
A pretrial motion to suppress evidence was heard by Diane C. Freniere, J.; the cases were tried before William F. Bloomer, J.; a motion to revise or revoke sentence was heard by him; and a motion for reconsideration was considered by him.
Christopher DeMayo for the defendant.
Chia Chi Lee, Special Assistant District Attorney, for the Commonwealth.
1 The companion case involves the same parties.
2
SINGH, J. Following a jury trial in the Superior Court
where he represented himself, the defendant was convicted of
stalking, witness intimidation, violation of a harassment
prevention order, criminal harassment, identity fraud, attempted
identity fraud, and unauthorized access to a computer system.
On appeal, the defendant challenges the denial of a motion to
suppress evidence seized from his cell phone, the sufficiency of
the evidence on a charge of witness intimidation, the
correctness of jury instructions concerning authentication of
electronic communications, and the propriety of factors
considered in sentencing. The Commonwealth appeals from the
reduction in the defendant's sentence two years after initial
sentencing and from the denial of its motion to reconsider the
sentence reduction. We affirm the judgments, the order reducing
the sentence, and the order denying the motion to reconsider the
reduction in sentence.2
Background. The defendant met the victim in 2005, when the
two were in a class together during their junior year of high
school. He asked her on a date, but she declined. To be kind,
the victim told the defendant they could be friends and gave him
her telephone number. The defendant started calling the victim,
asking her to hang out and telling her he loved her. She became
2 We have paired these two appeals for consideration by the same panel.
3
uncomfortable and told him she only wanted to be friends in
school. At school, the defendant waited for the victim outside
of her classes and followed her around. When the victim asked
him to leave her alone, he yelled and swore at her to the point
that others had to intervene. The victim's mother had a meeting
with school officials, as well as the defendant and his parents,
in which the defendant was told to leave the victim alone. He
did not.
The defendant kept contacting the victim through notes and
e-mail messages. The e-mail messages started off friendly and
apologetic, with the defendant writing that he tried to leave
the victim alone, was not a bad person, and would leave her
alone if she answered him. She never did.
The victim went to college the following year, and she
started receiving e-mail messages from the defendant at her
college e-mail address. When the victim did not respond, the email messages escalated in tone, using profanity and becoming
sarcastic, angry, and threatening. After the victim blocked the
defendant from her social media accounts, the defendant implored
her to unblock him, at times implying that he would do something
negative to her and at other times hinting that he would hurt
himself.
In 2009, when the victim returned from a study abroad
program, she found her car to have been "keyed all over the
4
entire thing from top to bottom." She reported this to the
police and obtained a harassment prevention order against the
defendant; he was ordered to stay away from her.3 A couple years
later, however, the defendant twice approached the victim at a
gym. The victim ended her membership, fearing that the
defendant would keep approaching her. Because an earlier stay
away order was still in place, the defendant was again told to
stay away from the victim.
In December 2015, the defendant suffered a stroke. While
in the hospital, he sent the victim an e-mail message, this time
to her work e-mail. In the e-mail message, the defendant said
that he was not going to stalk the victim but that he would
always love her. The victim contacted the police and obtained a
one-year harassment prevention order against the defendant,
which required him to have no contact with her, direct or
indirect.
While the one-year order was still in place, however, the
victim received a series of e-mail messages, apparently from the
defendant, through various anonymous addresses. In these e-mail
messages, the defendant threatened to end his life, blamed the
victim and her family for his situation, referred to the
harassment prevention order as the victim's family's way of
The defendant implied to a friend that he was responsible
3
for keying the victim's car.
5
punishing him, and said he wanted the order lifted so that they
could start over again. The defendant also contacted the
victim's mother through Facebook and told her that the
harassment prevention order was ruining his career prospects (he
wanted to go into law enforcement). He said that it would be in
everyone's best interest to lift the order or else he would make
them come back every year to renew it. In December 2016, the
victim sought and obtained a permanent harassment prevention
order.
Thereafter, the victim began receiving alerts about login
attempts to all her social media accounts. Subsequently, in
March 2019, the victim received a text message from a stranger,
saying that someone had tried to hire that person to hack into
the victim's Facebook and Google accounts.4 The victim reported
4 The stranger, a self-described "hacker," explained that the term originally referred to people who could "hack together something . . . a quick and dirty solution." People "would call themselves hackers if they were able to write code that was particularly clever and useful." The term later evolved to become synonymous "at least [in] the popular culture with computer crime, even though that's not what hacking means." According to the hacker, the defendant had reached out through a "Discord server" (described by the hacker as a forum or chat room) comprised of cyber security enthusiasts and asked about getting into the victim's accounts. Concerned about the defendant's intentions, the hacker tried to discover the defendant's identity to turn the information over to the police. Later, the hacker became one of the defendant's witness intimidation victims.
6
this information to the police, who began investigating the
matter.
In November 2019, the victim received a series of five
unanswered telephone calls in quick succession from numbers that
were not in her contacts -- she recognized the last number as
being connected to the defendant. She reported the calls to the
police, who obtained an arrest warrant for the defendant and a
search warrant for his electronic devices.5 Following execution
of the search warrant, the defendant was charged with violating
the harassment prevention order.
While that charge was pending, the victim continued to
receive alerts about login attempts to her accounts, as well as
text messages and e-mail messages from unknown senders. One of
the e-mail messages, apparently from the defendant, said that he
had succeeded in what he was attempting to do, and that if the
victim did not stop going forward with the trial, he would
embarrass her. The victim's mother also received an e-mail
5 Among the items recovered from execution of the 2019 search warrant for the defendant's electronic devices were screenshots of login pages on accounts belonging to others, including the victim, as well as screenshots of conversations with the hacker. There were entries in the Notes application titled "Hacking Facebook profiles" and "Hacking Snapchats." Within a pictures folder, there was a folder with the victim's name and another that contained images of someone of the victim's likeness -- a photograph that had been altered to make her appear partially nude.
7
message from an unknown sender saying, "So you won't mind if I
get your daughter arrested for possession of child pornography
. . . and ruin her teaching career . . . ."
In August 2020, the victim's mother received a series of email messages from e-mail addresses that appeared to belong to
different women.6 The e-mail messages said,
"If I spend one day behind bars, I'll hunt your husband
down.
"I'll put your husband in the ground. I dare you to give
me a dirty look or ruin my life more than you did.
Instigate me some more. See what happens.
"And if you ever give me a dirty look, I'll kill you and
your husband.
"Tell your husband, if he ever tries to get me fired at a
job, I'll cut his head off while he's still alive."
The victim's family reported these e-mail messages to the
police, and in 2020, the police obtained another arrest warrant
for the defendant and a search warrant for additional electronic
devices.7 After this arrest, the defendant remained in custody,
6 The e-mail messages were sent from the accounts of four different women, each of whom testified at trial that they did not know the defendant and that they did not send the e-mail messages in question; each of them also had private Snapchat photographs that had been compromised. These women were victims of the defendant's identity fraud and unauthorized access to computer systems.
7 Execution of the 2020 search warrant for the defendant's electronic devices revealed, among other things, evidence of calls corresponding with the series of five missed calls to the victim and e-mail account information of different women corresponding with those used to threaten the victim's family.
8
and the threats to the victim's family from unknown e-mail
addresses ceased.
Discussion. 1. Motion to suppress. The defendant claims
that the motion judge erred in denying his motion to suppress
evidence obtained from the 2019 and 2020 searches of his
electronic devices. On appeal, he does not dispute that the
warrants were supported by probable cause. Rather, he contends
that the police exceeded the scope of the 2019 search authorized
by warrant, and then used that unlawfully obtained evidence to
secure the 2020 search warrant. He argues that images
(photographs and screenshots) and files from the phone's "Notes"
application seized during the 2019 search should have been
suppressed as beyond the scope of the warrant and all evidence
from the 2020 search warrant should have been suppressed as
fruits of the unlawful 2019 search.
In our review of the denial of a motion to suppress
evidence, we accept the judge's subsidiary findings of fact,
absent clear error, and independently review the ultimate
findings and conclusions of law. See Commonwealth v. Barillas,
484 Mass. 250, 253 (2020). Where the search was conducted
pursuant to a warrant, the defendant bears the burden of
establishing that evidence was illegally obtained. See
9
Commonwealth v. Carleton, 497 Mass. 11, 29 (2026), citing
Commonwealth v. Taylor, 383 Mass. 272, 280 (1981). The
defendant also bears the burden when the claim is that the
search exceeded the scope of the warrant. See Carleton, supra,
citing Taylor, supra.
Here, the 2019 warrant authorized the police to search for
and seize from the defendant's electronic devices:
"a) Internet Search History relating to communication or
attempted communication with [the victim or her mother]
"b) Communication History be it Internet chat history, email, text message, phone call logs etc. Including contact
lists, relating to communication or attempted communication
with [the victim or her mother]
"c) Login history for both email and social media
applications
"d) Data related to the creation use or purchase of,
password manipulation software, virus, malware, and related
software that could be utilized to infiltrate or compromise
the e-mail and/or social media accounts of [the victim]."
The defendant contends that this authorization, by its terms,
did not include images (screenshots and photographs) or the
Notes application.
A search of electronic devices, however, "may be as
extensive as reasonably required to locate the items described
in the warrant" (citation omitted). Commonwealth v. Dorelas,
473 Mass. 496, 502 (2016). Where the warrant did not specify
particular files or applications to be searched, the police were
justified in searching any files or applications that could
10
reasonably contain the specified evidence. See Commonwealth v.
Henley, 488 Mass. 95, 119-120 (2021) (where police could not
know precise location within cell phone where evidence would be
found, they were justified in searching for particularized
evidence in areas where it would be reasonable to look for it).
Here, the warrant did not specify that screenshots could be
seized, but it did authorize the seizure of "[l]ogin history,"
which would encompass the screenshots of login pages of accounts
belonging to others including the victim. It also authorized
the seizure of "[c]ommunication [h]istory" and "[d]ata related
to . . . password manipulation . . . and related software that
could be utilized to infiltrate or compromise . . . accounts of
[the victim]." This would encompass the screenshots of
conversations with the hacker related to accessing the victim's
accounts. And although the warrant did not specify that
photographs could be seized, the police reasonably opened a
picture folder when they came across one with the victim's name
on it, as it reasonably contained "communication history,"
specifically relating to communications or attempted
communications with the victim. See Dorelas, 473 Mass. at 497
("where there was probable cause that evidence of communications
relating to and linking the defendant to the crimes under
investigation would be found in the electronic files on the
iPhone, and because such communications can be conveyed or
11
stored in photographic form, a search of the photograph files
was reasonable"). Likewise, the Notes application was a
reasonable place to search for evidence of the defendant's own
notations regarding attempts to communicate with the victim and
her mother, as well as his attempts to infiltrate their
accounts. Moreover, the Notes entries entitled "Hacking
Facebook profiles" and "Hacking Snapchat" fell squarely within
the category of data related to infiltrating the victim's
accounts.
The judge properly denied the defendant's motion to
suppress as the search and seizure did not exceed the scope of
the warrant.
2. Required finding of not guilty as to witness
intimidation. The defendant next claims that the judge erred in
denying his motion for a required finding of not guilty on the
witness intimidation charge relating to a mailing sent to the
hacker while the defendant was in jail awaiting trial in this
matter. To withstand a motion for a required finding of not
guilty of witness intimidation, the Commonwealth was required to
present evidence from which the jury could find beyond a
reasonable doubt that the defendant (1) willfully
(2) threatened, intimidated, or harassed (3) a witness in a
criminal proceeding of any type (4) with intent to impede or
interfere with a criminal investigation or proceeding. See
12
Commonwealth v. Gardner, 102 Mass. App. Ct. 299, 304 (2023). On
appeal, the defendant challenges only the sufficiency of the
evidence that he "threatened, intimidated or harassed," id., the
hacker. The defendant's claim is that the witness intimidation
statute, G. L. c. 268, § 13B, punishes only constitutionally
unprotected speech, and that therefore, he could not be
convicted unless the mailing constituted a "true threat" against
the hacker. Although we agree that the statute may not punish
constitutionally protected speech, we disagree that the
defendant's conduct toward the hacker was protected by the First
Amendment to the United States Constitution. See Commonwealth
v. Johnson, 470 Mass. 300, 309 (2014) (First Amendment does not
provide defense to criminal conduct simply because defendant
uses words to carry out illegal purpose).
We briefly summarize the pertinent evidence in the light
most favorable to the Commonwealth. See Commonwealth v.
Latimore, 378 Mass. 671, 676-677 (1979). In March 2021, while
the defendant remained in custody, he sent to the hacker in the
mail what appeared to be a printout of the hacker's driver's
license information, including date of birth and residential
address. The printout had a photograph of the hacker's face
with a swastika drawn on the forehead. In addition, a variety
of accusations, insults and slurs (incorporating the names of
13
people involved in the prosecution against the defendant) were
handwritten across the page.8
From the references to persons involved in the prosecution
and the anger reflected in the comments, the jury could have
found that the defendant was targeting the hacker based on his
awareness that the hacker had played a role in launching the
investigation that landed the defendant in jail. The jury also
could have found that the hacker's interactions with the
defendant through Discord, see note 4, supra, left the hacker
aware of the defendant's obsessive nature. Moreover, the jury
could have found that the mailing itself was intended to
intimidate the hacker by demonstrating the defendant's ability
to access the hacker's personal information, to get a personal
mailing to his home, and to do so while in custody.9
As to whether the content of the mailing constituted a true
threat, it is to be "measured objectively, considering whether,
8 The handwritten notations were: "FBI Faggot," "GOVERNMENT CRIMINAL SCUM," "Wilson Street Worcester," "Best friends with Middlesex ADA [name]," "Butt buddy of Det[. name] another fag," and "WANTED FOR IDENTITY FRAUD, OBSTRUCTION OF JUSTICE, providing a false name to a police officer, and for being a Ginger with a terrible combover." As reflected in his crossexaminations at trial, the defendant had a theory that the hacker was a "Deep State" operative, meaning "corrupt elements in the FBI and DOJ," working to ensnare him.
9 The return address on the mailing plainly identified the defendant as an "inmate" with the address of the jail at which the defendant was being held.
14
in light of the attendant circumstances, the words justifiably
caused the recipient to fear violence."10 Commonwealth v. Cruz,
495 Mass. 110, 113 (2024). See Commonwealth v. Chou, 433 Mass.
229, 236 (2001) (term "true threat" distinguishes between "words
that literally threaten but have an expressive purpose such as
political hyperbole, and words that are intended to place the
target of the threat in fear, whether the threat is veiled or
explicit"). Against this evidentiary backdrop, the photograph
of the hacker with a hand-drawn swastika on the forehead, sent
to the hacker by the defendant, who remained in jail as a result
of the hacker's betrayal, could have been found by the jury to
amount to a threat that objectively justified the hacker in
fearing violence. We are satisfied that the mailing constituted
a true threat, not protected by the First Amendment, and that
the trial judge properly denied the defendant's motion for a
required finding. See Cruz, 495 Mass. at 113 (true threat is
serious expression of speaker's intent to commit act of unlawful
violence).
10 Although the communication is evaluated objectively to determine whether it constitutes a true threat, the Commonwealth must also show that the defendant was at least aware that others could regard his statements as threatening violence and delivered them anyway. Cruz, 495 Mass. at 113, citing Counterman v. Colorado, 600 U.S. 66, 69, 79 (2023) (mens rea required for delivering true threat must be recklessness at minimum). This element of the charge is not at issue in this appeal.
15
3. Jury instructions. The defendant claims that the judge
erred in giving, over his objection, a jury instruction on
authentication of electronic communications that allegedly
confused the jury and impermissibly lowered the Commonwealth's
burden of proof. Specifically, he contends that "authorship
[of] the electronic communications was an element of virtually
all charges and therefore had to be proved beyond a reasonable
doubt," so "[t]here was no need to instruct the jurors to first
determine under a preponderance standard whether [the defendant]
had authored the communications before making that very same
determination under a reasonable doubt standard." He also
claims that the judge erred in rejecting his proposed
instruction that the jurors had to find that he authored the
communications beyond a reasonable doubt. We review an alleged
jury instruction error to which the defendant objected for
prejudicial error. Commonwealth v. Cruz, 445 Mass. 589, 591
(2005).
The judge addressed authentication of electronic
communications at several points during trial -- at the time of
admission of the evidence, in final instructions, and in
response to jury questions. Each time, the judge correctly
instructed that, to consider an electronic communication, there
must be a preliminary determination, by a preponderance of the
evidence, that the defendant in fact authored the communication.
16
See Commonwealth v. Purdy, 459 Mass. 442, 447 (2011). During
final instructions and in response to jury questions, the judge
correctly followed up with an instruction that the Commonwealth
had the burden to prove each element of the crimes charged
beyond a reasonable doubt. See id. There was no error in these
instructions.
Contrary to the defendant's argument, the authentication
instruction was not superfluous. As authentication is
preliminary to relevance, a determination must first be made
that an electronic communication is what it purports to be, that
is, a communication authored by the defendant, in order to be
relevant to the issues at trial. See Commonwealth v. Meola, 95
Mass. App. Ct. 303, 307-308 (2019) (authentication is condition
precedent to admissibility of electronic communication). The
judge initially determines "whether there is evidence
sufficient, if believed, to convince the jury by a preponderance
of the evidence that the item in question is what the proponent
claims it to be" (citation omitted). Purdy, 459 Mass. at 447.
The judge's preliminary determination as to admissibility,
however, is not conclusive; even after the evidence is admitted,
"the opposing party remains free to challenge the reliability of
the evidence, to minimize its importance, or to argue
alternative interpretations of its meaning, but these and
similar other challenges go to the weight of the evidence -- not
17
to its admissibility" (citation omitted). Meola, supra at 313.
Thus, the jury must still make their own independent
determination, by a preponderance of the evidence, that the
defendant authored the communication before considering the
evidence. See id., citing Commonwealth v. Alden, 93 Mass. App.
Ct. 438, 443 (2018).
The judge also correctly instructed the jury about the
burdens of proof applicable to authentication and the elements
of the offense, respectively. Whether the defendant authored
the communications was a question preliminary to the jury's
inquiry on the elements of the crime and needed only to be
proven by a preponderance of the evidence. See Commonwealth v.
Oppenheim, 86 Mass. App. Ct. 359, 366-367 (2014) (preliminary
questions of fact need only be proven by preponderance, no
matter how closely associated with elements of crime required to
be proven beyond reasonable doubt). From there, and regardless
of the jury's determination on authentication, they must go on
to consider whether the Commonwealth proved each element of the
crimes charged beyond a reasonable doubt.
Pointing to jury questions, the defendant argues that the
authentication instructions, in the circumstances of this case,
served only to confuse. The somewhat subtle distinction between
authorship of the electronic communications as it relates to
authentication versus guilt, particularly with respect to the
18
charges at issue in this case, understandably gave rise to jury
questions.11 See Alden, 93 Mass. App. Ct. at 444 ("We
acknowledge that in this case there was a fine line between the
(1) preliminary determination of the authenticity of the text
messages and (2) proof of the defendant's identity as the
perpetrator of the threats. Nevertheless, authenticity and
identity are different legal concepts").
The judge answered the jury questions by correctly
instructing that the jurors had to "determine whether [they]
believe that it is more likely true than not true" that the
defendant authored the e-mail messages before considering the
content of the e-mail messages. He went on to explain that, if
they could not find by a preponderance that the defendant
authored the e-mail messages, they were to disregard those email messages and make their determination based on the
remaining evidence. He reiterated that "the burden is always on
the government to prove the charge beyond a reasonable doubt,
11The jury asked, "With respect to indictments six through nine [violation of harassment prevention order], in relation to point number three, do we need a preponderance of the evidence to determine the author of the emails, or do we need to be beyond a reasonable doubt that the defendant authored the emails?" Additionally, the jury asked, "We've read the electronic communication sections [of the jury instructions] and are unclear if that supersedes the language beyond a reasonable doubt as stated in paragraph one of indictments six through nine."
19
not by a preponderance of the evidence" and emphasized that the
jurors had to determine whether the government had proven each
of the elements of the crime beyond a reasonable doubt.
These are accurate instructions and we must presume the
jury followed them, not speculate that the jurors may have
remained confused.12 See Commonwealth v. Andre, 484 Mass. 403,
418 (2020) (properly instructed jury presumed to understand and
follow law). See also Commonwealth v. Middleton, 100 Mass. App.
Ct. 756, 757-760 (2022) (affirming convictions of stalking in
violation of restraining order, violation of G. L. c. 209A
order, and witness intimidation where judge gave preponderance
instruction on authentication three times and made clear that
Commonwealth bore burden to prove beyond reasonable doubt that
defendant committed each offense).
A review of the instructions as a whole shows that the
judge repeatedly accurately instructed on authentication and
emphasized that the Commonwealth must prove the elements of each
offense beyond a reasonable doubt. See Commonwealth v. Glacken,
451 Mass. 163, 168-169 (2008) (in reviewing instructions to
12We do not reach the question whether it would have been in the judge's discretion, if agreed to by both parties, to give no authentication instruction at all, but instead to make the preliminary determination as to the authentication of the evidence, leave it to the parties to argue the weight of the evidence, and then instruct on the elements of the crime.
20
jury, phrases are not to be taken in isolation, but rather
instructions to be evaluated as whole for interpretation
reasonable jurors would place on judge's words). Accordingly,
we conclude that the authentication instruction was not
erroneous and did not lower the burden of proof. Further, the
judge did not err in giving the instruction, nor in rejecting
the defendant's proposed instruction.
4. Sentencing. Both parties raise issues regarding
sentencing. The defendant challenges the propriety of factors
considered in his initial sentencing. The Commonwealth appeals
from the judge's reduction in the defendant's sentence almost
two years later and the denial of its motion to reconsider the
reduction in sentence. Because we affirm the reduction in
sentence, the defendant's claims regarding the initial
sentencing are moot and we do not address them.13
After his initial sentencing immediately following trial,
the defendant timely moved to revise or revoke his sentence;
that motion was denied. In the next several months, the
defendant continued to send correspondence to the court and to
make additional filings, including motions to reconsider earlier
rulings and additional motions to revise or revoke. The judge
13This is consistent with the defendant's position on appeal, as he has stated he is satisfied with the revised, reduced sentence.
21
treated the series of filings as a motion to reconsider the
denial of the motion to revise or revoke.14 He requested the
probation department to do a Brief Risk Assessment for Violent
Offending (BRAVO) report with the defendant through a program
that did not exist when the defendant was first sentenced. The
report was made available to the parties. After a hearing, the
judge reduced the incarcerated portion of the defendant's
sentence and revised the terms of his probation. The judge
denied the Commonwealth's timely motion for reconsideration of
the sentence revision.
On appeal, the Commonwealth contends that the judge erred
in improperly considering a fact that did not exist at the time
of sentencing, specifically, the BRAVO report. We review the
propriety of a reduction in sentence on a motion to revise or
14The Commonwealth maintains that the defendant's motion for reconsideration should be considered untimely because it was not filed within thirty days of the denial of the motion to revise or revoke. See Mass. R. Crim. P. 29 (a) (1), as appearing in 489 Mass. 1503 (2022). The defendant did file a motion within thirty days, but it was labeled a motion for a new trial. Although the motion did not explicitly seek reconsideration of sentencing, it did complain about prosecutors requesting an upward departure from sentencing guidelines. In these unique circumstances, it was within the judge's discretion to treat that motion, in conjunction with all of the subsequent motions, as a timely request to reconsider the denial of the defendant's motion to revise or revoke. See Commonwealth v. Curtis, 53 Mass. App. Ct. 636, 637-639 (2002) (cautioning against considering form over substance when reviewing timeliness of motions).
22
revoke for an abuse of discretion. See Commonwealth v. Malick,
86 Mass. App. Ct. 174, 185 (2014). It is well established that
on a motion to revise or revoke, a judge may not take into
account conduct of the defendant that occurs subsequent to the
original sentencing. See Commonwealth v. DeJesus, 440 Mass.
147, 152 (2003). Use of postconviction conduct to alter a
sentence could intrude on the purview of the executive branch.
See Commonwealth v. McGuinness, 421 Mass. 472, 476 n.4 (1995)
(defendant's actions postsentencing best left to parole board).
Although the judge here did consider the newly produced
BRAVO report, it is apparent from the record that he did not
consider postconviction conduct of the defendant. Cf.
Commonwealth v. Tejeda, 481 Mass. 794, 795-797 (2019)
(recognizing that cases emphasizing the prohibiting of
consideration of postconviction evidence have focused on
defendant's conduct or denial of parole). Rather, he used an
additional tool to analyze the information available at the time
of sentencing. The judge explicitly noted that he did not
reconsider and revise the sentence based on any of the
defendant's postconviction rehabilitation efforts. And there is
nothing in the record to suggest otherwise.
The judge explained that he had grappled with the issue of
sentencing in this particular case and sought a newly available
probation tool to provide guidance in considering "the
23
alternatives available to achieve the goals of sentencing:
protecting the public, providing just punishment to the
defendant, deterring future criminal conduct, and rehabilitating
[the defendant]." See Commonwealth v. White, 436 Mass. 340, 343
(2002) (discussing punishment, deterrence, protection of public,
and rehabilitation as appropriate goals of sentencing). In
other words, he sought to impose a more "just" sentence. See
DeJesus, 440 Mass. at 152 (purpose of motion to revise or revoke
is to permit judge to reconsider sentence imposed and determine
whether sentence was just). We therefore find no cause to
disturb the reduction of sentence.
Conclusion. The judgments are affirmed. The order
revising the sentence is affirmed. The order denying the motion
for reconsideration of the order revising the sentence is
affirmed.
So ordered.