465 Mass. 1003

May 8, 2013.

Records And Briefs:

Oral Arguments

Six years after his convictions were affirmed, see Commonwealth v. Gomes, 61 Mass. App. Ct. 1111 (2004), and four years after the denial of his motion for a new trial was affirmed, see Commonwealth v. Gomes, 66 Mass. App. Ct. 1111 (2006), the defendant filed a motion for relief from unlawful sentence. See Mass. R. Crim. P. 30 (a), as appearing in 435 Mass. 1501 (2001). The motion alleged that the trial judge perceived the defendant's trial testimony as perjurious, and then improperly considered his testimony in imposing sentence. The judge stated during sentencing, "I was also -- I'm also affected by the testimony of the defendant himself who told a story that was really not believable at all." The motion was denied by a different judge, as the trial judge had retired. The Appeals Court affirmed the denial in a decision pursuant to its rule 1:28. See Commonwealth v. Gomes, 81 Mass. App. Ct. 1122 (2012). We granted the defendant's application for further appellate review.

Our common law forbids a judge from considering a defendant's perceived perjured trial testimony in determining the punishment imposed for a criminal conviction. See Commonwealth v. Coleman, 390 Mass. 797 , 806-808 (1984). Consideration at sentencing of such testimony is error that creates a substantial risk of a miscarriage of justice, even where the sentence imposed does not exceed the prosecutor's recommendation, as here. Id. at 810.

The trial judge did not merely discredit the defendant's testimony, she implied that it was perjured and she acknowledged that it "affected" her. We

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infer that the judge considered the defendant's testimony in imposing sentence. Because sentencing was improper, the defendant must be resentenced.

The defendant's sentences are hereby vacated and the matter is remanded for resentencing.

So ordered.

Ethan C. Stiles for the defendant.

Roger L. Michel, Jr., Assistant District Attorney, for the Commonwealth.