Commonwealth v. Michael Buckley.

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

24-P-1088

COMMONWEALTH

vs.

MICHAEL BUCKLEY.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Convicted by a Superior Court jury of assault and battery,

G. L. c. 265, § 13A, the defendant appeals. He argues that in

sentencing the judge improperly considered as an aggravating

factor that during trial the defendant defaulted and remained at

large for almost six months, and failed to consider as a

mitigating factor the defendant's status as a caretaker of his

girlfriend's children. Based on the judge's comments at

sentencing, we conclude that the defendant's sentence was lawful

and therefore affirm.

Background. We summarize the facts based on the evidence

before the jury. Just after 4 P.M. on May 18, 2022,

surveillance video near Massachusetts Avenue and Melnea Cass
Boulevard in Boston captured the victim walking down the street

holding a bag in his hand. At the time, the victim was

dependent on opioids. The victim encountered some acquaintances

and sold drugs to two of them. Then the defendant, wearing a

blue shirt, came up behind the victim and hit him on the head.

When the victim tried to walk away, the defendant blocked his

path. Joseph Donahue, wearing a red shirt, grabbed the victim

from behind and held a knife to his neck, which the victim

grabbed with his hand. A man in a white shirt who had been

standing nearby came over and helped the defendant push the

victim to the ground. The assailants took the victim's wallet,

his fanny pack, and his money. Bleeding from his hand, the

victim walked to Boston Medical Center where he was treated.

The defendant testified that in May 2022 he was addicted to

benzodiazepine. On May 18, he went to the area of Massachusetts

Avenue and negotiated the purchase of twelve pills from a man in

black, giving the man sixty dollars. The defendant then

followed the man, who engaged in a transaction with the victim

and handed the pills to the defendant. When the defendant

realized there were only seven pills, he demanded his money back

from the victim and hit the victim on the head.

After hearing that evidence, the jury retired to

deliberate. The next morning, September 21, 2023, the defendant

did not appear at trial and a warrant issued for his arrest. In

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absentia, the jury convicted the defendant of assault and

battery.1

Almost six months later, on March 15, 2024, the warrant was

recalled. At sentencing, the prosecutor asked for the defendant

to be sentenced to two and one-half years in the house of

correction, based on the facts of the crime and the defendant's

prior record, which included State prison sentences for

manslaughter and armed robbery. Defense counsel asked for a

straight probation sentence, and filed a motion requesting that

in sentencing the judge consider that the defendant was the

primary caretaker of children. See G. L. c. 279, § 6B. The

motion was supported by affidavits of the defendant and his

girlfriend stating that on weekdays while the girlfriend was at

work, the defendant was the "primary caretaker" for her four and

eight year old children, caring for the younger child all day

and for the older one before and after school. The judge

stated, "given his record, and given the facts as I recall them

to be, I don't think probation is appropriate . . . . And

again, I want to make it clear . . . the fact that he fled has

nothing to do with my sentence. That is a different charge."

The judge sentenced the defendant to two and one-half years in

1 The jury acquitted the defendant of armed robbery and
assault and battery by means of a dangerous weapon.

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the house of correction, with two years to serve and the balance

suspended for two years on conditions that he stay away from the

victim, stay away from the area of Massachusetts Avenue and

Melnea Cass Boulevard, and undergo random drug testing. The

defendant filed a timely notice of appeal.

Discussion. On appeal, the defendant argues that his

sentence was unlawful because the judge improperly considered

his default as an aggravating factor and improperly failed to

consider his caretaker status as a mitigating factor.

Our review of the defendant's sentence is limited.2 We

consider only "whether the [defendant]'s sentence was

unconstitutional or otherwise unlawful, and such questions of

law are subject to de novo review" (quotation and citation

omitted). Commonwealth v. Rajiv R., 495 Mass. 646, 659 (2025).

The defendant does not argue that his sentence was

unconstitutional, see id. at 661-662, and so we consider only

2 We note that the defendant has not filed in the Superior
Court a motion to revise and revoke his sentence, Mass. R.
Crim. P. 29 (a) (2), as appearing in 489 Mass. 1530 (2022), or
for release from unlawful restraint, Mass. R. Crim. P. 30 (a),
as appearing in 435 Mass. 1501 (2001). He has not filed a
motion for stay of his sentence asserting that he is the primary
caretaker for dependent children. Cf. Kiago-Wilson v.
Commonwealth, 483 Mass. 1010, 1010-1011 (2019) (defendant
asserting primary caretaker status sought stay of sentence in
Superior Court, but not Appeals Court). Nor has the defendant
appealed his sentence to the Appellate Division of the Superior
Court, G. L. c. 278, §§ 28A-28C. See Commonwealth v. Coleman,
390 Mass. 797, 804 (1984).

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whether it was unlawful. This court is not empowered to modify

or adjust a lawful criminal sentence. Rather, we would vacate a

trial court's sentencing order and remand only if a sentence is

unlawful, see Commonwealth v. Woodward, 427 Mass. 659, 683

(1998), or in the rare circumstance "where there is reason to

think a sentencing judge may have considered uncharged conduct

for an improper purpose." Commonwealth v. Suarez, 95 Mass. App.

Ct. 562, 577 (2019).

The defendant argues that his sentence was unlawful because

the judge improperly considered that he fled during trial, which

he argues was "an untried offense." We are not persuaded.

During sentencing, the judge said on three separate occasions

that she was not considering the defendant's flight. Based on

the judge's repeated statements that she was not considering the

defendant's flight, we cannot reasonably conclude that she in

fact did so. See Commonwealth v. Martin, 98 Mass. App. Ct. 727,

731 (2020) (at sentencing, judge said "I want the record to be

crystal clear" that he was not considering conduct for which

defendant was acquitted).

In support of his argument that the judge did in fact

consider his flight, the defendant points to a comment by the

judge in response to defense counsel's sentencing argument.

After counsel argued that the defendant was "sorry" and had

"already lost so much as a result of this case," the judge

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replied, "please don't insult me by having him apologize. It's

been months. . . . If he'd showed up a couple days later, an

apology maybe, but it's been a really long time, so I think

we're well past that." We do not read the judge's comment that

counsel should not have the defendant apologize as demonstrating

that the judge considered his flight in sentencing, particularly

given the facts of the crime and the defendant's prior record.

See Commonwealth v. Bland, 48 Mass. App. Ct. 666, 668-669 (2000)

(judge's comment that, in addition to facts of crime and

defendant's record, he considered "demographics" of elderly

victims, did not invalidate sentence). Contrast Commonwealth v.

Coleman, 390 Mass. 797, 810 (1984) (judge's questioning of

defendant at sentencing about truthfulness of testimony showed

that sentence was effectively for uncharged crime of perjury);

Suarez, 95 Mass. App. Ct. at 576 (judge's comments at sentencing

implied she sentenced defendant for rape, of which he was not

convicted, rather than assault with intent to rape).

The defendant further argues that the judge refused to

consider mitigating information that he was the primary

caretaker for his girlfriend's young children.3 The judge said

3 The defendant does not argue that the judge was required
to issue written findings about his status as a primary
caretaker of a dependent child and alternatives to
incarceration. See G. L. c. 279, § 6B (b). We do not consider
that issue.

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that in sentencing she would not consider "anything that

happened after he took off," either in mitigation or

aggravation. We conclude that it was within the judge's

discretion to consider in sentencing only the facts adduced at

trial and not subsequent events. Cf. Commonwealth v. Power, 420

Mass. 410, 418 (1995), cert. denied, 516 U.S. 1042 (1996) (on

convictions for manslaughter and armed robbery, probation

condition prohibiting defendant from profiting from account of

her twenty-three years as fugitive was relevant to

rehabilitation).

The caretaker sentencing statute provides that a sentencing

judge "may . . . consider the defendant's status as a primary

caretaker of a dependent child before imposing a sentence."

G. L. c. 279, § 6B (b). Whether the defendant's motion and

supporting affidavits demonstrated that he met the statutory

definition of a primary caretaker of a dependent child is a

question of law that we review de novo. See Rajiv R., 495 Mass.

at 659. The statute defines a primary caretaker of a dependent

child as "a parent with whom a child has a primary residence."

G. L. c. 279, § 6B (a). The statute does not define the word

"parent." We conclude that the defendant did not demonstrate,

for the purposes of the caretaker sentencing statute, that he

was the children's parent. The defendant averred that he, his

girlfriend, and the children "live together as a family, and I

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am a father figure to the [children]." The defendant did not

assert that he had any legal relationship to the children that

conferred on him the obligation to support them or rights to

custody of or visitation with them.4 His averment that he

considered himself "a father figure" to them did not suffice to

show that he was their "parent" within the meaning of G. L.

c. 279, § 6B (a).

Judgment affirmed.

By the Court (Grant,
Brennan & Smyth, JJ.5),

Clerk

Entered: November 19, 2025.

4 The parent-child disqualification statute, G. L. c. 233,
§ 20, Fourth, defines a parent as "the biological or adoptive
parent, stepparent, legal guardian or other person who has the
right to act in loco parentis for the child." See Rajiv R., 495
Mass. at 651. Without deciding whether that definition would
apply to the caretaker sentencing statute, we note that the
defendant did not establish that he met it.

5 The panelists are listed in order of seniority.

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