Commonwealth v. Francis ( 2017 )

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SJC-12118
COMMONWEALTH vs. ROGER D. FRANCIS.
Plymouth. April 3, 2017. - August 11, 2017.
Present: Gants, C.J., Lenk, Hines, Lowy, Budd, & Cypher, JJ.
Practice, Criminal, Plea.
Indictment found and returned in the Superior Court on May
11, 1967.
Following review by this court, 355 Mass. 108 (1969), a
motion for a new trial, see 411 Mass. 579 (1992), and the
withdrawal of a plea of guilty and a second trial, see 450 Mass.
132 (2007), a motion for a new trial, filed on August 5, 2013,
was heard by Linda E. Giles, J.
A request for leave to appeal was allowed by Botsford, J.,
in the Supreme Judicial Court for the county of Suffolk.
Mary E. Lee, Assistant District Attorney, for the
Commonwealth.
Leslie W. O'Brien for the defendant.
LOWY, J. The Commonwealth claims that an order granting
the specific performance of a plea agreement constituted error.
We agree.
2
Background. In 1967, the defendant, Roger Francis, was
convicted of murder in the first degree for killing his fifteen
year old girl friend. See Commonwealth v. Francis, 355 Mass.
108, 108-109 (1969). In 1989, a Superior Court judge allowed
the defendant's motion for a new trial because of errors in the
reasonable doubt jury instruction given in his 1967 trial.
Thereafter, this court, considering the Commonwealth's appeal on
report of a single justice pursuant to the gatekeeper provisions
of G. L. c. 278, § 33E, affirmed. Commonwealth v. Francis, 411
Mass. 579, 580 (1992).
In May, 1994, the defendant reached a plea agreement with
the Commonwealth: The defendant would plead guilty to murder in
the second degree in exchange for the opportunity to immediately
seek parole, which the Commonwealth would not oppose.1 If the
parole board declined to grant the defendant parole, the
agreement allowed the defendant to withdraw his guilty plea and
proceed to trial on the murder in the first degree charge.
After the plea agreement had been reached, the defendant pleaded
guilty on May 25, 1994, before a Superior Court judge (plea
judge). At the plea hearing, the defendant's counsel made
representations that there was an understanding between the
1
At the time of the defendant's 1994 plea, he had already
served more than fifteen years in prison. Those convicted of
murder in the second degree in 1967 were eligible for parole
after fifteen years. St. 1965, c. 766, § 1.
3
parole board and the defendant that the defendant would not be
required to be in custody to be considered for parole.2 To
effectuate the understanding as it was represented,3 the plea
judge -- over the Commonwealth's objection -- stayed the
execution of the sentence on the charge of murder in the second
degree while the defendant's parole application was being
considered. The parole hearing was scheduled for August, 1994.
Before the scheduled parole hearing, the parole board
informed the parties and the plea judge of its position that
pursuant to the terms of G. L. c. 127, § 133A,4 the defendant had
to be in custody in order for the parole board to have
jurisdiction over him. Because the defendant disagreed with
returning to custody, the August parole hearing was canceled.
In September, 1994, in response to the parole board's
position, the plea judge issued a revised order that would
terminate the stay of the defendant's sentence once the parole
2
Nothing occurred during the plea colloquy to suggest that
the Commonwealth had agreed as a condition of the plea that the
defendant need not be in custody during the parole hearing.
3
It is questionable at best whether there was ever an
understanding between the parole board and the defendant that
the defendant need not be in custody during his parole hearing.
4
General Laws c. 127, § 133A, provides: "Every prisoner
who is serving a sentence for life in a correctional institution
of the commonwealth . . . shall be eligible for parole at the
expiration of the minimum term fixed by the court . . ."
(emphasis added).
4
board commenced its hearing. The order was designed to
accommodate the defendant's request to avoid custody.
The parole hearing was rescheduled for March, 1999.5 This
hearing was canceled in part due to the defendant's resistance
to returning to custody. The parole hearing was rescheduled for
March, 2000. Because the defendant would have to return to
custody to have his parole hearing, he filed a motion to
continue the stay of his sentence, or, alternatively, to
withdraw his plea.
At the hearing on this motion, in March, 2000, a different
judge attempted to craft a solution that would allow the
defendant to remain out of custody while conforming with the
parole board's position that the defendant must be in custody
for it to conduct a hearing. The judge proposed that the stay
be continued until the moment the parole hearing commenced (in
keeping with the 1994 plea judge's order), and that the stay be
automatically reimposed following the parole hearing if the
defendant were denied parole, so that he could withdraw his
plea. The Commonwealth objected to this proposal. The judge
then granted the defendant's alternative request for relief,
5
This five-year gap was the result of the defendant
requesting that his attorney not pursue a parole hearing and,
apparently, the Commonwealth losing track of the defendant's
case. In 1998, the prosecutor's office was informed by the
Superior Court clerk's office in Brockton that the court was
still holding the defendant's bail money, and the case began to
proceed.
5
allowing the defendant to withdraw his guilty plea to murder in
the second degree.
The defendant was retried on the original indictment for
murder in the first degree in 2003 before a third Superior Court
judge and jury. His conviction of that crime was upheld by this
court.6 See Commonwealth v. Francis, 450 Mass. 132, 133 (2007).
In 2013, the defendant filed a motion for a new trial alleging
ineffective assistance of counsel and that his 1967 sentence was
cruel or unusual. Although the judge -- who was the judge at
the defendant's 2003 trial -- found the defendant's arguments
unavailing, "[i]n light of the extenuating facts of this case,"
she granted the motion based on "principles of fundamental
fairness and due process," even though she found that the
Commonwealth had not reneged on the plea offer. The judge
ordered specific performance of the 1994 plea agreement, and
allowed the defendant to plead guilty to murder in the second
degree. The judge reasoned that this was the correct result
because "another party to the negotiation, the court, adopted an
interpretation of the [s]tatute -- that the Parole Board could
entertain the defendant's request for parole and conduct a
hearing at the Board's office without his surrendering into
[Department of Correction] custody -- on which the defendant
6
Prior to this trial, the defendant filed a motion to
enforce the plea agreement, which the trial judge denied.
6
relied to his detriment."7 The Commonwealth appealed to a single
justice of this court pursuant to G. L. c. 278, § 33E, who
allowed the petition.
Discussion. The decision whether the Commonwealth enters
into a plea agreement with the defendant is the prosecutor's
alone. See Commonwealth v. Gordon, 410 Mass. 498, 500 (1991).
See also Commonwealth v. Hart, 149 Mass. 7, 8 (1889) ("Only an
attorney authorized by the Commonwealth to represent it has
authority to declare that he will not further prosecute a case
in behalf of the Commonwealth. A court is not a prosecuting
officer . . ."). As a general matter, when a judge accepts a
defendant's plea of guilty to murder in the second degree to an
indictment for murder in the first degree over the objection of
the Commonwealth, she usurps "the decision-making authority
constitutionally allocated to the executive branch." Gordon,
supra at 501, and cases cited. A judge may, however, enforce a
plea agreement over the Commonwealth's objection if she finds
that the defendant has reasonably relied on a prosecutor's
promise to his or her detriment. Commonwealth v. Smith, 384
Mass. 519, 521 (1981). Whether an enforceable promise exists is
primarily a question of contract law, id. at 521-522, but, in
addition, "[w]e would go beyond contract principles to order
7
As we explain, infra, the court is not a party to plea
negotiations, and, more importantly, the defendant never relied
to his detriment on any promise related to custody.
7
specific performance of a prosecutor's promise even where no
contract may have existed, if, on principles of fundamental
fairness encompassed within notions of due process of law, the
promise should be enforced." Id. at 522.
The issue before us is whether the judge in 2013 abused her
discretion in deciding to enforce the 1994 plea agreement
between the Commonwealth and the defendant. More particularly,
the issue is whether the prosecutor made an enforceable promise
to the defendant that he need not be in custody for the parole
hearing.
Applying contract principles, the record does not indicate
that the Commonwealth made any enforceable promise to the
defendant that he would not have to go into custody before his
parole hearing could take place. Indeed, the record is to the
contrary. Thus, we apply a two-prong test to determine whether
fundamental fairness requires us to find an enforceable promise
in the plea agreement: first, we ask "whether the defendant had
reasonable grounds for assuming his interpretation of the
bargain," Smith, 384 Mass. at 523, quoting Blaikie v. District
Attorney for the Suffolk Dist., 375 Mass. 613, 616 n.2 (1978);
and second, we ask "whether [the defendant] relied on that
interpretation to his detriment." Smith, 384 Mass. at 523.
Here, the defendant's argument fails both prongs of the
test. There were no reasonable grounds for the defendant to
8
believe that the prosecutor acquiesced to his not being in
custody during the parole hearing process. The prosecutor
consistently objected to the stay of the defendant's sentence
throughout the plea process and continued to object to it over
the course of subsequent hearings. See Commonwealth v. Cruz, 62
Mass. App. Ct. 610, 612 (2010). The prosecutor's objection
demonstrates that it had made no enforceable promise that the
defendant would avoid custody at the time he would be considered
for parole. This view is consistent with the judge's finding
that the Commonwealth never reneged on its offer.
Even if there were reasonable grounds for the defendant to
believe that the Commonwealth had promised him that he would not
have to be in custody for the parole board to conduct its
hearing, the defendant's argument also fails the second prong of
the test, because there is no evidence that he relied on the
alleged promise to his detriment. The parole board did not hold
a hearing between 1994 and 2000 while the defendant was at
liberty. The defendant, therefore, took advantage of his
interpretation of the plea agreement (adopted by the court) that
he be allowed to withdraw his plea if he were required to go
into custody as a condition of his parole hearing. Contrast
Santobello v. New York, 404 U.S. 257, 261-262 (1971)
(detrimental reliance where defendant pleaded guilty based on
promise of prosecutor to make no sentencing recommendation, but
9
prosecutor subsequently broke promise and recommended maximum
sentence); Commonwealth v. Benton, 356 Mass. 447, 448-449 (1969)
(detrimental reliance where defendants pleaded guilty based on
promise of prosecutor to enter nolle prosequi to certain
charges, but prosecutor subsequently indicted defendants on
charges that had been so disposed). The defendant never relied
to his detriment on any alleged promise from the Commonwealth.
His plea agreement specifically allowed him to withdraw the plea
and have the trial he requested. The plea bargaining process
did not put the defendant in a worse position than he would have
been if the prosecutor had never agreed to the bargain in the
first place. Smith, 384 Mass. at 522. The defendant withdrew
his plea and he was then left with the adequate remedy of
proceeding to trial. Id.8
A judge may not use the vantage point of hindsight to
second guess the decisions of a defendant in rejecting a plea
agreement. See Commonwealth v. Mahar, 442 Mass. 11, 17 (2004).
That is what happened here. There was no enforceable promise
made by the Commonwealth that the defendant did not have to ever
8
This situation is different from that presented by
Commonwealth v. Mahar, 442 Mass. 11 (2004). In that case, we
held that a fair trial does not ameliorate the harm of
ineffective assistance of counsel during the plea consideration
process. Id. at 14-15. Here, where the judge below rejected
the defendant's ineffective assistance claim, nothing impeded
the defendant during plea negotiations besides his refusal to go
back into custody so that the board could conduct a hearing.
10
go into custody. Thus, there were no grounds for the judge to
allow the defendant to plead guilty to murder in the second
degree.9 We conclude that the judge abused her discretion in
granting the defendant's motion for new trial. See Commonwealth
v. Yardley Y., 464 Mass. 223, 227 (2013) (grant or denial of
motion to challenge or enforce plea reviewed for abuse of
discretion).
Conclusion. The grant of the defendant's motion for a new
trial is reversed.
So ordered.
9
We note that following the 2003 trial, the judge had the
authority to reduce the verdict of murder in the first degree to
murder in the second degree under Mass. R. Crim. P. 25 (b) (2),
379 Mass. 896 (1979). There is no argument before us that the
judge's action in 2013 was undertaken pursuant to this rule.