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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 threejudge 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.