Commonwealth v. Michael Mienkowski.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-809

COMMONWEALTH

vs.

MICHAEL MIENKOWSKI.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 2014, a Superior Court jury convicted the defendant of

two counts of rape of a child, aggravated by a more than ten

year age difference between the defendant and the victim, one

count of posing a child in a state of nudity, and one count of

dissemination of matter harmful to minors. 1 The judge imposed

concurrent mandatory minimum sentences of ten years in state

prison on the convictions of aggravated rape and posing a child

in a state of nudity. 2 The defendant also received a five year

term of probation to be served from and after the concurrent

sentences on the conviction of dissemination of matter harmful

to minors. This court affirmed the defendant's convictions, see

1 The defendant was acquitted of two additional counts of rape of
a child.
2 See G. L. c. 265, § 23A, and G. L. c. 272, § 29A.
Commonwealth v. Mienkowski, 91 Mass. App. Ct. 668, 669-671

(2017), and the Supreme Judicial Court denied further review,

Commonwealth v. Mienkowski, 477 Mass. 1109 (2017).

About seven years later, in 2021, the defendant filed a

motion pursuant to Mass. R. Crim. P. 30 (a), as appearing in 435

Mass. 1501 (2001) (rule 30 [a]), arguing that the mandatory

minimum sentences imposed on the aggravated rape convictions

(hereinafter, the sentence) were disproportionate to the nature

of the offense and his personal characteristics thereby

violating the prohibition on cruel and unusual punishment under

the Eighth Amendment to the United States Constitution and the

cognate provision of art. 26 of the Massachusetts Declaration of

Rights. 3 The defendant also requested an individualized

sentencing hearing. The motion judge, who was not the trial

judge, 4 denied the motion without a hearing, and the defendant

appealed. 5 We affirm.

3 The defendant does not challenge the ten year minimum mandatory
sentence imposed on the conviction of posing a child in a state
of nudity. Both his motion to vacate his sentence and his brief
on appeal focus solely on the alleged unconstitutionality of the
ten year mandatory minimum sentence imposed on the rape
convictions.
4 The trial judge had retired and consequently the motion was

heard by a different judge.
5 The defendant filed a motion to reconsider, which was denied in

a margin endorsement. The defendant appealed from the denial of
that motion, and the appeal was consolidated with his appeal
from the denial of his original motion. However, because the
defendant does not make any separate arguments regarding the

2
Background. The underlying facts are set forth in

Mienkowski, 91 Mass. App. Ct. at 669-671, and need not be

repeated in detail. In summary, as we previously described, the

defendant was twenty-three years old, unemployed and living with

his mother when he met the victim, who was thirteen years old

and lived in a nearby apartment with her mother. The two began

"hanging out" when the victim was not in school and before long

the victim spent most of her free time with the defendant. Id.

at 669. Approximately six months after they met, the defendant

began regularly raping the victim, who believed she was in love

and kept the relationship secret. The defendant also exchanged

sexually explicit text messages with the victim and the two

exchanged nude photographs. The criminal conduct came to light

when the victim moved out of state to live with her aunt and

uncle and the aunt discovered the text messages and photographs

on the victim's telephone.

As noted, in 2021 the defendant filed the rule 30 (a)

motion which is the subject of this appeal. He claimed that at

the time he committed the offenses he suffered from numerous

mental health disorders including posttraumatic stress disorder,

panic disorder, panic disorder with agoraphobia, depressive

disorder, and alcohol dependence. Prior to filing his motion,

denial of the motion to reconsider, we only address the merits
of his claim that the original motion should have been allowed.

3
the defendant was examined by Dr. Erin Kitchener, a clinical

neuropsychologist, who conducted multiple tests and reviewed the

defendant's educational and social history. She concluded that

the defendant appeared to suffer from Fetal Alcohol Spectrum

Disorder, a neurodevelopmental disorder caused by prenatal

alcohol exposure. Dr. Kitchener also opined that the defendant

is developmentally delayed, and that his cognitive and social-

emotional functioning were significantly delayed at the time of

the events in question. Based on Dr. Kitchener's findings and

opinion, which were summarized in a detailed report that the

defendant submitted in support of his motion, 6 the defendant

argued that the ten year mandatory minimum sentence was

unconstitutional as applied to him because the term of

incarceration was disproportionate to the facts and

circumstances of the offense and his personal characteristics.

More specifically, he claimed that given his diagnosis, which

resulted in significant social limitations and cognitive

impairments, he was not, from a social or functional

perspective, ten years older than the victim. Consequently, he

6 The defendant's rule 30 (a) motion quoted extensively from Dr.
Kitchener's report. However, it appears that the report itself
was submitted under separate cover. In an abundance of caution,
the defendant attached a copy of the report to his motion to
reconsider. Based on the judge's findings and discussion, we
are confident that he reviewed the report and, in fact, accepted
Dr. Kitchener's findings and conclusions for purposes of the
motion.

4
asserted that the sentence should be vacated and he requested a

new sentencing hearing at which his individual characteristics

could be taken into consideration.

In a well-reasoned memorandum and order of decision, the

motion judge concluded that the defendant had not met his burden

of demonstrating that the sentence violated art. 26's guarantee

of proportionality. 7 In reaching his conclusion, the judge noted

that the trial judge imposed the most lenient sentence possible

and, as a result, one could not conclude, as our case law

requires, that the sentence "shock[ed] the conscience or

offend[ed] fundamental notions of human dignity."

Discussion. 8 We review the denial of a motion brought

pursuant to rule 30 (a) for an abuse of discretion or error of

7 The motion judge focused on art. 26 because it "affords a
defendant greater protections than the Eighth Amendment."
Commonwealth v. Sharma, 488 Mass. 85, 89 (2021). We do the
same.
8 The Commonwealth argues, as it did below, that the defendant

waived his claim that his sentence is unconstitutional by
failing to raise it at the earliest opportunity. We agree with
the motion judge that the issue is not waived but, in any event,
because we conclude that the judge did not abuse his discretion
in denying the motion we need not address this argument. In
addition, the Commonwealth argues that the motion was properly
denied because the judge had no discretion but to impose the
mandatory minimum and therefore the sentence is not illegal. We
agree that the sentence is not illegal in that it does not
exceed the permissible maximum and, therefore, we confine our
discussion to the question whether the sentence is
unconstitutional as applied here. Lastly, insofar as the
Commonwealth also argues that because the Legislature prescribed
a mandatory minimum sentence for aggravated rape, both the
motion judge and this court lack the discretion to grant the

5
law. Commonwealth v. Perez, 480 Mass. 562, 567 (2018). A

judge's decision "constitutes an abuse of discretion where we

conclude the judge made a clear error of judgment in weighing

the factors relevant to the decision, such that the decision

falls outside the range of reasonable alternatives" (quotation

and citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185

n.27 (2014). Where, as here, "a defendant claims that a judge

has made an error of constitutional dimension . . . [we] review

independently the application of constitutional principles to

the facts found" (quotation omitted). Perez, supra.

"The touchstone of art. 26's proscription against cruel or

unusual punishment . . . [is] proportionality. The essence of

proportionality is that punishment for crime should be graduated

and proportioned to both the offender and the offense"

(quotations and citations omitted). Commonwealth v. Sharma, 488

Mass. 85, 89 (2021). "To reach the level of cruel and unusual,

the punishment must be so disproportionate to the crime that it

relief the defendant requests, we note that "enactments of the
Legislature must comport with both the Federal and State
Constitutions." Diatchenko v. District Attorney for the Suffolk
Dist., 466 Mass. 665, 672 (2013). The motion judge had
discretion to depart from the mandatory minimum sentence only if
the defendant carried his heavy burden of proving that the
sentence is disproportionate under Cepulonis v. Commonwealth,
384 Mass. 495, 497 (1981), and therefore unconstitutional as
applied to the defendant. We have the same discretion.
However, because we conclude that the defendant did not meet his
burden, we do not exercise that discretion here.

6
'shocks the conscience and offends fundamental notions of human

dignity.'" Id., quoting Commonwealth v. LaPlante, 482 Mass.

399, 403 (2019). The defendant has the "heavy burden" of

proving disproportionality. Commonwealth v. Pfeiffer, 482 Mass.

110, 131, cert. denied, 140 S. Ct. 498 (2019), quoting

Commonwealth v. Alvarez, 413 Mass. 224, 233 (1992).

As the judge correctly observed, in determining whether a

sentence is so disproportionate to the crime that it shocks the

conscience we apply a three prong test requiring "(1) an

'inquiry into the nature of the offense and the offender in

light of the degree of harm to society,' (2) 'a comparison

between the sentence imposed here and punishments prescribed for

the commission of more serious crimes in the Commonwealth,' and

(3) 'a comparison of the challenged penalty with the penalties

prescribed for the same offense in other jurisdictions.'"

Commonwealth v. Concepcion, 487 Mass. 77, 86, cert. denied, 142

S. Ct. 408 (2021), quoting Cepulonis v. Commonwealth, 384 Mass.

495, 497-498 (1981).

The motion judge concluded that the defendant failed to

meet all three prongs of the analysis. He focused his analysis

on the first prong, and appropriately considered the nature of

the offense and the defendant's characteristics. In doing so,

he accepted Dr. Kitchener's opinion and the facts as presented

by the defendant in his motion. He also considered the trial

7
judge's decision to impose the lowest possible sentence by

imposing concurrent ten year mandatory minimum terms. The judge

further explained that the decision of the Supreme Judicial

Court in Commonwealth v. Jones, 479 Mass. 1, 18 (2018),

supported his conclusion. He observed that "the Supreme

Judicial Court has declined to eliminate sentences of life in

prison without the possibility of parole for people with

developmental disabilities or to require that such sentences be

discretionary rather than mandatory" (quotation omitted).

On appeal, the defendant advances essentially the same

arguments as he did below, namely that the facts and

circumstances are sufficient to meet his burden of proving that

the sentence is disproportionate. Although we conduct an

independent review of the defendant's constitutional claim, we

reach the same conclusion as the motion judge. While the record

provides support for the defendant's claim that he suffered from

developmental delays, the nature of the offense "in light of the

degree of harm to society," Cepulonis, 384 Mass. at 497, quoting

Commonwealth v. Jackson, 369 Mass. 904, 909 (1976), does not

support a conclusion that the sentence he received was

disproportionate such that it violated art. 26. Accordingly, we

cannot say that the judge made "a clear error of judgment in

weighing the factors relevant to the decision." Perez, 477

Mass. at 682 (quotation omitted). The judge properly applied

8
the three-prong analysis and concluded that, even in light of

the defendant's intellectual disability and other mental health

challenges, the sentence did not shock the conscience or offend

fundamental notions of human decency and therefore was not

disproportionate as applied to him. Because this conclusion

plainly does not "fall[] outside the range of reasonable

alternatives," id. (quotation omitted), the judge did not abuse

his discretion in denying the defendant's motion.

Order entered May 3, 2022,
denying motion to vacate an
unconstitutional sentence
affirmed.

Order entered June 28, 2022,
denying motion for
reconsideration affirmed.

By the Court (Vuono, Hand &
Hodgens, JJ. 9),

Clerk

Entered: August 9, 2023.

9 The panelists are listed in order of seniority.

9