Commonwealth v. Michael Hunt.

• Court: Massachusetts Appeals Court
• Decided: August 29, 2025
• Docket: 23-P-1481
• Status: Unpublished

Opinion

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

23-P-1481

COMMONWEALTH

vs.

MICHAEL HUNT.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from (1) the denial of his motion for

recusal, (2) an order of a judge of the Superior Court finding

that the defendant violated his probation by committing new

offenses, and (3) the sentence of nine to eleven years in State

prison the judge imposed for one of the underlying convictions.

We affirm.

Background. In 2023, the defendant was on probation for

his 2002 convictions of one count of rape of a child and two

counts of indecent assault and battery on a child under

1 Also known as Michael Petrocchi. fourteen.2 On March 13, 2023, the defendant was charged by

criminal complaint issued from the District Court with indecent

assault and battery on a child under fourteen and intimidation

of a witness (March 2023 charges). Shortly thereafter, the

Commonwealth notified the defendant of four alleged probation

violations.

Specifically, the Commonwealth alleged the following

violations: (1) failure between January 1, 2017, and December

2 On August 15, 2002, in Franklin County, the defendant was sentenced to: (1) a five to seven-year prison term for one count of rape of a child (count one); (2) a five-year probationary term for another count of rape of a child (count two), to be served concurrently with his State prison sentence; (3) concurrent fifteen-year probationary terms for another count of rape of a child (count three) and one count of indecent assault and battery on a child under fourteen (count eight), to begin from and after his release from State prison; and (4) a three to five-year prison term for another count of indecent assault and battery on a child under fourteen (count four), to be served concurrently with the direct sentence on count one. One count of possession of child pornography (count nine) was filed by the Court. A nolle prosequi was filed for all three counts of contributing to the delinquency of a minor (counts five to seven).

On September 13, 2002, in Worcester County, the defendant was sentenced to: (1) a six to eight-year State prison sentence for one count of indecent assault and battery on a child under fourteen (count two), to be served concurrently with his incarceration on the Franklin County offenses; (2) a fifteen- year probationary term for another count of indecent assault and battery on a child under fourteen (count one), to begin from and after his release from State prison; and (3) four concurrent five-year probationary terms for providing liquor to minors (counts three to six). The defendant has since completed his four concurrent five-year probationary terms for counts three to six.

2 31, 2018, to comply with a condition of probation not to have

unsupervised contact with children under the age of sixteen

(violation one), (2) sexually assaulting a child and

intimidating him as a witness, for which the defendant was

charged in March 2023 (violation two), (3) failure between June

1, 2016, and August 31, 2017, to comply with a condition of

probation not to have unsupervised contact with children under

the age of sixteen (violation three), and (4) failure on April

1, 2023, to obey a court order connected to the March 2023

charges not to have unsupervised direct or indirect contact with

children under the age of sixteen (violation four).

On August 7, 2023, the defendant filed a motion for recusal

of the hearing judge based on her prior experience prosecuting

child sexual assault cases. On August 8, 2023, before the start

of the first probation violation hearing, the judge denied the

motion for recusal and noted the defendant's objection. On

September 22, 2023, during the third (and final) probation

violation hearing, the judge issued oral findings on the record

that the Commonwealth had established by a preponderance of the

evidence all four alleged probation violations. On October 3,

2023, the judge issued a written memorandum and order,

explaining in greater detail the evidence supporting her

3 findings that the defendant committed all four alleged probation

violations.3

On October 3, 2023, the judge sentenced the defendant to

nine to eleven years in State prison for the rape of a child

conviction underlying his probation. The judge also imposed

five to six-year sentences for the two indecent assault and

battery convictions underlying the probation, to be served

concurrent with the nine to eleven-year sentence. On October

19, 2023, the defendant filed a notice of appeal to this court.

On November 9, 2023, the defendant pleaded guilty in District

Court to the March 2023 charges.4,5

Discussion. 1. Motion for recusal. The defendant argues

that the judge abused her discretion in denying the defendant's

motion for recusal because she prosecuted child sexual assault

cases before joining the bench and therefore her impartiality

reasonably could be questioned. We disagree. If we adopted the

3 The defendant argued in his opening appellate brief that the judge failed to make written or oral findings. In his reply brief, the defendant conceded that the judge made written findings.

4 The Commonwealth's motion to expand the record to include these subsequent guilty pleas is allowed.

5 The judge imposed concurrent sentences of two and one-half years in a house of correction for the March 2023 charges, also to be served concurrent with the nine to eleven-year sentence for rape of a child and the five to six-year sentences for the two indecent assault and battery convictions.

4 defendant's argument, any judge who previously practiced in a

specialty area would have to recuse themself from cases in that

area. That is not what our law requires, nor would it be

practicable. Instead, our law requires that a judge internally

assess their "capacity to rule fairly" and objectively appraise

whether they will appear impartial. Lena v. Commonwealth, 369

Mass. 571, 575 (1976). The judge did so here. Additionally, we

note, as the judge did, that she had been serving as a judge for

five years at the time of the probation surrender hearing. See

Commonwealth v. Morgan RV Resorts, LLC, 84 Mass. App. Ct. 1, 12

(2013) ("The passage of time certainly can be a factor leading

to a conclusion that any concerns about a judge's impartiality

would be unreasonable"). Accordingly, we discern no error.

2. Sufficiency of the evidence. The Commonwealth must

prove any "violation of probation by a preponderance of the

evidence." Commonwealth v. Bukin, 467 Mass. 516, 520 (2014).

On review, we determine "whether the record discloses sufficient

reliable evidence to warrant the findings by the judge that [the

defendant] had violated the specified conditions of his

probation." Commonwealth v. Morse, 50 Mass. App. Ct. 582, 594

(2000).6

6 The defendant's argument that the probation condition prohibiting him from having unsupervised contact with children under the age of sixteen is unenforceable was not raised below and is therefore waived on appeal. See Commonwealth v.

5 a. Violations one and two. Probation violations one and

two are related, as they both involve two children, ages nine to

eleven, of a tenant living on the first floor of the defendant's

three-family home. The defendant was alleged to have had

unsupervised contact with the tenant's children between January

1, 2017, and December 31, 2018 (violation one), including one

incident where he sexually assaulted one of the children, who

was under the age of fourteen (violation two). The defendant's

subsequent guilty pleas to the March 2023 charges renders moot

his argument that there was insufficient evidence to prove

violations one and two. Commonwealth v. Pena, 462 Mass. 183,

187 (2012).

Even if the argument is not moot, the judge did not abuse

her discretion in finding that the victim's testimony of the

March 2023 charges was credible and proved by a preponderance of

the evidence that the defendant had violated a condition of his

probation, including that he sexually assaulted one child under

the age of fourteen by touching his penis. To the extent the

victim gave inconsistent accounts of the sexual assault, "[t]he

issue of credibility raised by such inconsistencies is a

question for the [fact finder] to decide" (quotation and

citation omitted). Commonwealth v. Clary, 388 Mass. 583, 589

Dubowski, 58 Mass. App. Ct. 292, 298 (2003). Accordingly, we decline to address this issue.

6 (1983). See id. ("Inconsistencies in testimony . . . do not

render it insufficient"). "[W]e do not disturb the judge's

credibility determinations as fact finder." Commonwealth v.

Nunez, 446 Mass. 54, 59 (2006).

b. Violation three. There was sufficient evidence for the

judge to find by a preponderance of the evidence that the

defendant had unsupervised contact with children under the age

of sixteen between June 1, 2016, and August 31, 2017. The judge

heard testimony from the defendant's former roommate that, on

one occasion, she walked into their shared apartment and saw the

defendant, with no other adults present, handing something from

the refrigerator to his tenant's two children, who were nine and

five years old. The judge did not abuse her discretion in

crediting the testimony of the defendant's former roommate.7 See

Nunez, 446 Mass. at 59.

c. Violation four. The Commonwealth also offered

sufficient evidence to establish that the defendant violated a

court order, issued during his arraignment on the March 2023

charges, to not have unsupervised contact with children under

the age of sixteen. At the probation violation hearing, the

Commonwealth presented evidence that on April 1, 2023, two men

7 The judge did not wholly credit the Commonwealth's evidence. She found that the Commonwealth did not sustain its burden to prove a second occasion of unsupervised contact with this tenant's children.

7 in a van -- the defendant and his partner -- pointed at two

twelve year old girls and smiled. About fifteen minutes later,

the girls had moved from that location to a school playground

when the van pulled up next to the girls and the passenger asked

them for directions. There was conflicting evidence as to which

man asked for directions. Regardless of whether the defendant

was the driver or the passenger, the evidence was sufficient to

establish, by a preponderance of the evidence, that the

defendant intentionally violated the court order prohibiting him

from having unsupervised contact with children under sixteen by

speaking with the girls himself or by driving close to the girls

to allow his partner to speak with them. See Commonwealth v.

Henry, 475 Mass. 117, 121 (2016) (probation violation must be

willful). Accordingly, we discern no error.

3. Sentencing. "A defendant who violates probation is not

being punished for violating a condition of probation, but

rather the defendant is essentially being sentenced anew on his

[or her] underlying conviction" (quotation and citation

omitted). Commonwealth v. Eldred, 480 Mass. 90, 97 (2018).

"That sentence should reflect the judge's careful assessment of

several goals: punishment, deterrence, protection of the

public, and rehabilitation." Commonwealth v. Goodwin, 414 Mass.

88, 92 (1993). "It is not in this court's power to vacate or

modify an otherwise lawful sentence, so long as it has been

8 administered impartially, based on the relevant criteria."

Commonwealth v. Medina, 64 Mass. App. Ct. 708, 722 (2005). The

defendant argues that his sentence of nine to eleven years for

rape of a child is unlawful because it (1) violates ex post

facto laws, (2) was based upon uncharged conduct and homophobic

stereotypes, and (3) constitutes cruel and unusual punishment.

We disagree.

a. Ex post facto. First, the defendant argues that the

judge violated the protection against the operation of ex post

facto laws afforded him by art. I, § 10, of the United States

Constitution and art. 24 of the Massachusetts Declaration of

Rights. "To prevail on an ex post facto claim, a litigant 'must

show both [(1)] that the law he challenges operates

retroactively (that it applies to conduct completed before its

enactment) and [(2)] that it raises the penalty from whatever

the law provided when acted.'" Clay v. Massachusetts Parole

Bd., 475 Mass. 133, 136 (2016), quoting Doe, Sex Offender

Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass.

603, 618 (2011).

The defendant argues that the judge, at the Commonwealth's

suggestion, applied during sentencing an aggravating factor in

G. L. c. 265, § 23A (b) (the 2008 statute), even though that

statute was not in effect when he was sentenced to probation in

2002. While the prosecutor should not have mentioned the 2008

9 statute during the sentencing hearing, there is no evidence that

the judge applied that statute. Indeed, the 2008 statute

carries a mandatory minimum sentence of ten years, yet here the

judge sentenced the defendant to nine to eleven years for rape

of a child. See G. L. c. 265, § 23A (c). Furthermore, one of

the statutes under which the defendant was sentenced to

probation in 2002, G. L. c. 265, § 23, as amended by St. 1998,

c. 194, § 238, allowed for a life sentence. The defendant's

sentence was within the bounds of the statute as written at the

time of the defendant's underlying conviction. The defendant's

ex post facto claim fails.

b. Uncharged conduct and homophobic stereotypes. Second,

the defendant asserts that the judge, who "may have" accepted

the prosecutor's argument that the defendant and his partner

were engaged in "grooming" and "predatory" behavior during

probation, based the sentence on uncharged conduct and

homophobic stereotypes.8 Not only is there no evidence to

8 We note that "'grooming' has as its ultimate goal 'the formation of an emotional connection with the child and a reduction of the child's inhibitions in order to prepare the child for sexual activity.'" Commonwealth v. Martinez, 104 Mass. App. Ct. 13, 18 (2024). Courts have used this language regardless of the defendant's sexual orientation. See id. at 17-18 (characterizing defendant's manipulative phone calls to child victim of different gender as grooming). Here, the defendant offered children under fourteen soda, candy, money, and video games to establish a connection with them. It is not homophobic to reference that behavior.

10 support the defendant's argument, but the judge explicitly

stated that she was sentencing the defendant based on the

offenses underlying his probation, not the probation violations.

We discern no basis for the argument that the judge's sentence

was based on uncharged conduct or homophobic stereotypes.

c. Cruel and unusual punishment. The defendant argues

that his nine to eleven-year sentence violates the Eighth

Amendment to the United States Constitution and art. 26 of the

Massachusetts Declaration of Rights, as cruel and unusual

punishment "in the moral and common sense meaning of those

words." The burden is on the defendant to prove that a

punishment is cruel and unusual. Cepulonis v. Commonwealth, 384

Mass. 495, 497 (1981). In making this argument, the defendant

did not cite a legal standard in his brief and merely re-argued

his case. He also failed to establish that the sentence was not

"lawful and within the statutory limits." Medina, 64 Mass. App.

Ct. at 722. See G. L. c. 265, § 23, as amended by St. 1998,

c. 194, § 238. See also Medina, supra (no cruel and unusual

punishment where defendant received concurrent twenty to thirty-

year sentences for indecent assault and battery, from and after

11 concurrent life sentences for rape of child, because sentences

were within statutory limits). We discern no error.9

Order denying motion to recuse affirmed.

Order revoking probation and imposing sentence affirmed.

By the Court (Henry, Smyth & Toone, JJ.10),

Clerk

Entered: August 29, 2025.

9 The defendant's one-sentence claim at the end of his opening brief, that trial counsel "perhaps" provided ineffective assistance by not filing a motion to revise or revoke the defendant's sentence, does not rise to the level of appellate argument. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019). As such, we need not pass on the question whether trial counsel was ineffective. Id.

10 The panelists are listed in order of seniority.