ROBERT P. LENA vs. COMMONWEALTH.

KAPLAN, J. On petition for writ of error by Robert P. Lena, a single justice of this court affirmed the amended judgment of conviction to which the petition was addressed. Lena now appeals to the full court from the action of the single justice.

The original judgment, entered by a judge of the Superior Court on January 17, 1973, upon a verdict of a Norfolk County jury, convicted Lena of the crime of rape. Sentence was imprisonment at the Massachusetts Correctional Institution at Walpole for a term of not less than five and not more than ten years, to be served after completion of a sentence Lena was then serving.

Lena appealed to the Appellate Division of the Superior Court pursuant to G. L. c. 278, Sections 28A-28D, for a review of the sentence. The appeal was heard on June 14, 1973, by a panel of three judges. The Appellate Division revised the sentence upward: it amended the judgment by substituting for the sentence originally imposed, sentence of imprisonment at Walpole for a term of not less than ten and not more than fifteen years, to take effect after the sentence Lena was serving on January 17, 1973, the term to be computed without credit for any days served.

In his petition for the writ with accompanying assignments of error and a statement of agreed facts, Lena claimed that the amended judgment was infected with fundamental errors. It appeared that in December, 1972, Lena had been tried in the Superior Court, Suffolk County, on indictments for rape and unnatural acts. When the jury brought in acquittals on both charges, the trial judge addressed the jury and said that the verdicts, particularly as to the unnatural acts, caused him great concern. The jury, he said, were entitled to consider whether the young lady would have humiliated herself by giving testimony if the offense had not been committed; and if they thought the acts were acceptable to the community and not "unnatural," they were mistaken. The jury might be interested to know, though it was not pertinent to guilt or innocence in the case just tried, that the

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defendant was serving a term of ten to twenty years at Walpole for assault with intent to commit rape, and that another charge of rape was pending against him in another county.

Lena went on in his assignments to state that the judge who made those remarks to the Suffolk County jury on December 14, 1972, acted as the presiding judge of the Appellate Division panel on the appeal of the Norfolk County sentence in June, 1973. Lena's retained counsel, with knowledge of these facts, did not ask the judge to disqualify himself. Still Lena assigned as error that the judge had not disqualified himself sua sponte. Lena assigned as additional errors supporting his petition that his counsel had continued to represent him at the June hearing although counsel had previously advised him to withdraw his appeal, and, further, that counsel had not moved for the disqualification of the judge. In Lena's estimation counsel's behavior deprived him of effective representation. Lena prayed that the amendment of the original sentence be vacated and that he be allowed a fresh appeal of the original sentence.

We shall conclude that the single justice was right in denying vacation of the amended sentence on the writ of error. We shall suggest that in all the circumstances of the case Lena may have a basis for applying to the Appellate Division for rehearing or reconsideration.

1. This is not the first time that a reprimand of a jury by a trial judge who disagreed with the verdict has had unforeseen repercussions. See Commonwealth v. Hanscomb, 367 Mass. 726 (1975). Plainly the judge here believed Lena guilty of one or both charges, and this raises a question about the judge's capacity to review the later sentence free of the feelings that such a belief might provoke, and on the basis solely of the relevant record. [Note 1]

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That the panel increased the sentence is not proof that prejudice on the part of the judge was at work. To be sure, the revised sentence, added to the sentence then being served, was a severe penalty. Increases of sentences by the Appellate Division have been rare statistically. See the tables for the period July 1, 1955, to June 30, 1969, set out in Walsh v. Commonwealth, 358 Mass. 193, 199 n.4 (1970), habeas corpus denied sub nom. Walsh v. Picard, 446 F.2d 1209 (1st Cir. 1971), cert. denied, 407 U.S. 921 (1972), and an extension of the tables to June 30, 1974, in Gavin v. Commonwealth, 367 Mass. 331, 338 n.8 (1975). Yet the power to revise sentences upward exists by the terms of the statute as a complement to the power to reduce them. G. L. c. 278, Section 28B. It is not shown that the revised sentence was so far a departure from the expected penalty for such an offense, committed by such a defendant, as to suggest prejudice, or, indeed, that it was not better in line with sentencing practice in like cases than the original sentence. [Note 2]

The information or knowledge forming the source of any supposed partiality was acquired by the judge in his judicial role, not extrajudicially. This is a factor making against Lena's claim that the judge should have recused himself on the sentence appeal (see Commonwealth v. Leventhal, 364 Mass. 718, 722 [1974]; Kennedy v. District

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Court of Dukes County, 356 Mass. 367, 379 [1969]), although we would not go so far as to say that it should necessarily be determinative. See Ratner, Disqualification of Judges for Prior Judicial Actions, 3 How. L.J. 228 (1958); Note, Disqualification of Judges for Bias in the Federal Courts, 79 Harv. L. Rev. 1435, 1451-1452 (1966); Note, Disqualification of Judges and Justices in the Federal Courts, 86 Harv. L. Rev. 736, 763 n.116 (1973).

Faced, then, with a question of his capacity to rule fairly, the judge was to consult first his own emotions and conscience. If he passed the internal test of freedom from disabling prejudice, he must next attempt an objective appraisal of whether this was "a proceeding in which his impartiality might reasonably be questioned." S.J.C. Rule 3:25, Canon 3 (C) (1) (a), 359 Mass. 841 (1972). [Note 3] In a case rather similar to the present, it was held that a trial judge who had expressed his disagreement with a jury verdict acquitting a particular defendant was not required to disqualify himself from sentencing that defendant on a later, related charge to which the defendant had pleaded guilty. United States v. Pizzo, 453 F.2d 1063, 1066 (3d Cir.), cert. denied, 406 U.S. 922 (1972). In the Pizzo case, the possible bias had been called to the judge's attention by the defendant's counsel before sentence, but had not been made the subject of a formal motion to disqualify. The judge assured counsel that he could act impartially. In the present case the matter was not adverted to at all in the presentation to the Appellate Division. The fact that no objection was taken to the judge's participating in the case, although possibly explicable as merely a tactical abstention by counsel, would naturally, and, we think, properly, tend to confirm the judge in a

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conclusion that he need not step down, that he could with inward and outward propriety act with his colleagues to review the sentence on the merits. [Note 4] On the whole, we agree with the single justice that it was not shown to be error redeemable on writ of error for the judge to fail to recuse himself sua sponte. See Commonwealth v. Leate, 367 Mass. 689, 697-698 (1975); King v. Grace, 293 Mass. 244, 246-247 (1936); Preston v. Peck, 279 Mass. 16, 18-19 (1932).

2. As to the assigned errors with regard to the behavior of Lena's counsel (not the attorney now representing him), it surely would not prove inadequate representation that counsel argued an appeal to the Appellate Division that he thought ill-advised if this was the client's desire, or that he omitted to move to disqualify the judge if this was his best view of what the situation called for and he did not believe it to go counter to his client's wishes. The record does not demonstrate any misprision here or a level of performance in any other respect that we have characterized in the past as inadequate. See Commonwealth v. Saferian, 366 Mass. 89, 96-97 (1974), and cases cited.

3. So the writ of error fails. The single justice was prompted to remark, however, that "[t]he statement of agreed facts does not disclose why the point [disqualification] was not raised at the hearing." Some two weeks before the hearing Lena had written to his counsel, referring to the judge's "lashing out at the jury," and inquiring, "Is there any way we could exempt him from my hearing?" It is an agreed fact that before his appearance at the hearing Lena informed counsel that he "thought [the judge] should not participate in the Appellate Division's

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decision on his sentence appeal." On the day of the hearing Lena discussed with his counsel whether he should go forward with the appeal, but he "did not reaffirm his request to have [the judge] recused." In subsequent correspondence Lena stated that he asked counsel to challenge the judge and "you failed to do so." The single justice said "there may have been oversight on the part of the petitioner or counsel or both" in not raising the point at the hearing, although it is also possible that counsel made a "tactical decision" not to raise it. [Note 5]

Thus it appears possible that Lena wanted the point of disqualification put at the hearing and through misunderstanding or failure of communication this was not done. If such a misunderstanding occurred it cannot be thought immaterial. For, as intimated above, a judge, although not disposed to recuse himself sua sponte, might well react in a different way to a motion to compel his withdrawal which indicated that the person affected would consider himself abused if the judge continued to sit, and which also necessarily raised, in a more poignant manner, a problem about creating at least the appearance of doing an injustice.

Considering all the circumstances, including the special nature of a sentence appeal, we suggest that Lena, if so advised, may attempt an application to the Appellate Division for rehearing or reconsideration supported by any further proof of misunderstanding and directed to securing an opportunity to move for disqualification and to have the appeal heard anew by a panel reconstituted under

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G. L. c. 278, Section 28A. We express no view as to how the Appellate Division should exercise its discretion in ruling on such an application, if made. [Note 6]

The judgment of the single justice is affirmed. The Appellate Division is authorized to entertain an application and to take appropriate action thereon as indicated in this opinion.

So ordered.