Commonwealth v. Rodriguez , 461 Mass. 256 ( 2012 )

Gants, J.

The issue in this case is whether a judge has the authority under Mass. R. Crim. P. 29 (a), 378 Mass. 899 (1979), to reduce a sentence after the defendant and the Commonwealth had entered into a plea agreement in which the Commonwealth agreed not to seek indictments against the defendant on the pending charges, the defendant had agreed to plead guilty to the charges and join the prosecutor’s sentencing recommendation, and the judge had imposed the recommended sentence. We conclude that where, as here, a judge acts on his own timely motion to revise or revoke a sentence, the judge has the authority to reduce a sentence where “it appears that justice may not have been done” regardless of whether a plea agreement includes an agreed sentence recommendation.¹ See Mass. R. Crim. P. 29 (a).

Background. The defendant was charged with possession of a class B substance (oxycodone) with intent to distribute, in violation of G. L. c. 94C, § 32A, and possession of a class D substance (marijuana) with intent to distribute, in violation of G. L. c. 94C, § 32C (a).² On November 19, 2009, the prosecutor and the defendant, through his attorney, entered into a plea agreement. Under the agreement, the Commonwealth would not seek indictments on these charges, the defendant would plead guilty to the two charges in the Boston Municipal Court Department, and the defendant would agree to the Commonwealth’s sentencing recommendation of concurrent committed terms of two and one-half years in a house of correction. That same day, the judge accepted the defendant’s guilty plea and sentenced the defendant in accordance with the plea agreement. However, the judge later questioned whether the sentences he imposed were unfairly severe, and on his own motion, he ordered a hearing under rule 29 (a) on January 6, 2010, to consider whether the sentences should be revised or revoked. Immediately after the hearing, the judge revised and revoked the sentences and sentenced the defendant to concurrent terms of two years in the house of correction, with one year to serve and the balance suspended for two years. The prosecutor moved to reconsider, but the judge did not act on the motion.

On July 26, 2010, the Commonwealth filed a petition under G. L. c. 211, § 3, asking a single justice to vacate the revised sentence and remand the case to restore the original sentence. On October 22, 2010, a single justice reserved and reported the case to the full court.³

Discussion. The procedure for tendering a guilty plea and sentencing a defendant who has pleaded guilty is governed by Mass. R. Crim. P. 12, as appearing in 442 Mass. 1511 (2004), and G. L. c. 278, § 18.⁴ In all criminal cases where the Commonwealth and the defendant have entered into a plea agreement, the judge must be informed of the substance of the agreement that is contingent on the plea. Mass. R. Crim. P. 12 (b) (2). Where a plea agreement includes a sentence recommendation, whether it be a recommendation by the prosecutor that the defendant is free to oppose or an agreed recommendation made jointly by the prosecutor and the defendant, a judge is required to inform the defendant that the judge “will not impose a sentence that exceeds the terms of the recommendation without first giving the defendant the right to withdraw the plea.” Mass. R. Crim. P. 12 (c) (2) (A).⁵ Neither rule 12 nor G. L. c. 278, § 18, declares that a plea may be vacated or that the Commonwealth may be released from its obligations under a plea agreement where a judge imposes a sentence below that recommended by the prosecutor, even where there is an agreed recommendation in a plea agreement. Rather, where a plea agreement includes an agreed recommendation, rule 12 (b) (1) (B) requires that the recommendation be made “with the specific understanding that the recommendation shall not be binding upon the court.” In short, rule 12 protects a defendant from the risk that the judge will exceed the prosecutor’s recommendation, but it does not protect the Commonwealth from the risk that the judge will impose a sentence below the prosecutor’s recommendation.

The Commonwealth contends that, once a judge accepts the terms of an agreed recommendation in a plea agreement, the judge is bound by the terms of the agreement and may not exercise the authority under rule 29 to revise or revoke the sentence. Implicit in this argument is that rule 12 includes a procedure whereby an agreed recommendation in a plea agreement, once accepted by the judge, binds the judge and bars the judge from later revising or revoking the sentence even if the judge later determines that the sentence is unjustly severe. We conclude that nothing in rule 12 denies a judge the authority to reduce a sentence under rule 29 (a) where the judge timely determines the sentence to be unjustly severe.

“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.” Graham v. Florida, 130 S. Ct. 2011, 2031 (2010). “A sentencing judge is given great discretion in determining a proper sentence.” Commonwealth v. Lykus, 406 Mass. 135, 145 (1989). In exercising this discretion to determine a just sentence, a judge must weigh various, often competing, considerations, including, but not limited to, the severity of the crime, the circumstances of the crime, the role of the defendant in the crime, the need for general deterrence (deterring others from committing comparable crimes) and specific deterrence (deterring the defendant from committing future crimes), the defendant’s prior criminal record, the protection of the victim, the defendant’s risk of recidivism, and the extent to which a particular sentence will increase or diminish the risk of recidivism. See generally Commonwealth v. Donohue, 452 Mass. 256, 264 (2008), and cases cited. Therefore, to 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.

Rule 29 recognizes that “[occasions inevitably will occur where a conscientious judge, after reflection or upon receipt of new probation reports or other information, will feel that he has been too harsh or has failed to give due weight to mitigating factors which properly he should have taken into account.” Commonwealth v. McCulloch, 450 Mass. 483, 487 (2008), quoting District Attorney for the N. Dist. v. Superior Court, 342 Mass. 119, 128 (1961). In such cases, a judge under rule 29 may “reconsider the sentence he has imposed and determine, in light of the facts as they existed at the time of sentencing, whether the sentence was just.” Commonwealth v. McCulloch, supra, quoting Commonwealth v. Dejesus, 440 Mass. 147, 152 (2003). A judge, therefore, is not barred from reducing a sentence the judge has imposed until the time limits established in rule 29 to revise or revoke a sentence have expired. The existence of a plea agreement, even a plea agreement with an agreed recommendation, does not bind a judge to a sentence the judge later determines to be unjustly harsh.

We recognize that Federal law comes to a different result under the analogous plea procedure set forth in Fed. R. Crim. P. 11, but the Federal rule differs significantly from our rule 12. The Federal rule recognizes two different types of plea agreements: one where the prosecutor’s recommendation does not bind the judge, Fed. R. Crim. P. 11 (c) (1) (B); and another where the recommendation binds the judge once the judge accepts the plea agreement, Fed. R. Crim. P. 11 (c) (1) (A) and (C), (c) (3) (A), and (c) (4). Where the plea agreement is nonbinding, a judge need neither accept nor reject the agreement, and the defendant may not withdraw the plea if the judge imposes a sentence more severe than the prosecutor’s recommendation. Fed. R. Crim. P. 11 (c) (3) (B).⁶ Where the plea agreement is binding once accepted by the judge, either because the agreement provides that the government will not bring, or will move to dismiss, other charges, Fed. R. Crim. P. 11 (c) (1) (A), or because the parties to the agreement have agreed that “a specific sentence or sentencing range is the appropriate disposition of the case,” Fed. R. Crim. P. 11 (c) (1) (C), a judge must accept the agreement, reject it, or defer a decision until the judge has reviewed the presentence report.⁷ A defendant may withdraw the plea if the judge rejects the plea agreement, but if the judge accepts it, the judge “must inform the defendant that ... the agreed disposition will be included in the judgment.” Fed. R. Crim. P. 11 (c) (4). Because the Federal rule provides that a plea agreement, once accepted by the judge, “will be included in the judgment,” a Federal judge who has accepted a plea agreement no longer has the authority to revise the sentence, even if the judge had accepted the plea agreement without first requesting a presentence report and learns new information from the report before sentencing. See United States v. Moure-Ortiz, 184 F.3d 1, 4 (1st Cir. 1999) (“the rule does not authorize a district court to accept the agreement at a plea hearing . . . and [at sentencing] modify the agreement in accordance with a personal notion of what constitutes a just sentence”); United States v. Skidmore, 998 F.2d 372, 376 (6th Cir. 1993) (“Having accepted the agreement, the district court was required to adhere to the terms contained in the agreement as the parties understood those terms”).

In contrast with Fed. R. Crim. P. 11, our rule 12 does not identify any plea agreement where the recommendation shall bind the judge. Where there is a plea agreement, the judge is only bound to allow a defendant to withdraw his plea where the judge imposes a sentence more severe than the prosecutor’s recommendation. Mass. R. Crim. P. 12 (c) (2). While Fed. R. Crim. P. 11 (c) (3) (A) requires a judge at the plea hearing to accept or reject a “plea agreement ... of the type specified in Rule 11 (c) (1) (A) or (C),” our rule 12 (c) (5) (B) requires a judge at the plea hearing to accept or reject “the plea or admission,” not the plea agreement. Because even an agreed recommendation under our rule 12 is made “with the specific understanding that the recommendation shall not be binding upon the court,” rule 12 (b) (1) (B); because the rule nowhere speaks of a plea recommendation binding the judge; and because a judge at the plea hearing accepts the plea, not the plea agreement, our rale does not bind a judge to a sentence even where the judge informs counsel that the judge accepts an agreed plea Where a judge declares in advance of sentencing that the judge accepts the plea agreement and will impose the recommended sentence, the judge is declaring that the judge expects to impose that sentence; the judge under our rales may not foreclose the possibility that a lesser sentence may be imposed if the judge timely determines, based on new information or further deliberation, that the lesser sentence better serves the interest of justice.⁸

When the judge accepted the agreed recommendation, he appeared to have known little of the defendant’s past medical history except that the defendant was presently taking medication for bipolar disorder. It was only at the rule 29 hearing, when he asked the defendant’s counsel and, later, the defendant to tell him about the defendant’s past medical history, that he learned that the defendant since childhood has suffered from attention deficit hyperactivity disorder and syncope disorder,⁹ and that it was only when he was committed to Bridgewater State Hospital for sixty days following his arraignment that his medication was “under control.” The judge also learned at the rule 29 hearing that approximately one year earlier the defendant had suffered an injury on the job that kept him out of work for approximately six months, that he had been prescribed Percocet¹⁰ while he was in physical therapy, and that he had begun to abuse prescription medication after the physical therapy ended.¹¹

By asking that we interpret rule 12 to bind a judge to an earlier acceptance of an agreed recommendation, the Commonwealth is essentially asking that we interpret our rules to bind a judge to a sentence that the judge agreed to based on incomplete information, and that the judge timely wishes to revise or revoke because he now believes the sentence to be unfairly severe based on information that existed at the time of sentencing. We do not interpret our rules to require such a result.

It is not unfair to the Commonwealth to allow a judge to revise a sentence where justice otherwise “may not have been done.” Mass. R. Crim. P. 29 (a). The defendant did not obtain a lesser sentence through a breach of the plea agreement; the defendant presented the agreed recommendation to the judge and did not move to revise or revoke under rule 29. And the Commonwealth obtained what it bargained for: the defendant pleaded guilty and agreed to the prosecutor’s recommendation. The Commonwealth should have recognized that its agreed recommendation was made “with the specific understanding that the recommendation shall not be binding upon the court.” Mass. R. Crim. P. 12 (b) (1) (B).

Nor does a judge “exercise the . . . executive powers” and thereby violate art. 30 of the Massachusetts Declaration of Rights by revising or revoking a sentence under rule 29 where there was an agreed recommendation in a plea agreement.¹² The judge did not deny the prosecutor the opportunity to indict or reduce the criminal charges brought by the district attorney. Cf. Commonwealth v. Cheney, 440 Mass. 568, 574 (2003) (“judicial power does not extend to authorize a judge to dismiss an otherwise legally adequate indictment, prior to verdict, finding, or plea” over Commonwealth’s objection); Baglioni v. Chief of Police of Salem, 421 Mass. 229, 232-233 (1995) (“judge may not nol pros a criminal charge or reduce such a charge without the consent of the prosecutor”). The judge simply exercised a quintessential judicial power — the power to sentence — and ultimately concluded that the agreed recommendation was more severe than justice permitted.

Conclusion. The case is remanded to the county court for the entry of a judgment denying the Commonwealth’s petition.

So ordered.

1 We do not address whether a judge has the authority to reduce a sentence under Mass. R. Crim. P. 29 (a), 378 Mass. 899 (1979), where a defendant, in breach of a plea agreement, moves to revise or revoke. The Commonwealth here does not allege that the defendant committed a breach of the plea agreement.

2 When the criminal complaint first issued on June 5, 2009, the defendant was charged with trafficking in heroin, morphine, or opium, in violation of G. L. c. 94C, § 32E (c), and possession of a class D substance with intent to distribute, in violation of G. L. c. 94C, § 32C (a). On August 3, 2009, the Commonwealth reduced the trafficking charge to possession of a class B substance (oxycodone) with intent to distribute, but this reduction was reflected only in the docket, not in an amended complaint.

3 We acknowledge the amicus brief submitted by the district attorneys for the Hampden, Berkshire, Bristol, Eastern, Middle, Northern, and Northwestern districts.

4 The procedure set forth in G. L. c. 278, § 18, applies in the District Court, the Boston Municipal Court, the Juvenile Court, and a District Court sitting in a juvenile session, but not in the Superior Court.

5 In the District Court, the Boston Municipal Court, the Juvenile Court, or a District Court sitting in a juvenile session, where there is no plea agreement (or no plea agreement with a sentence recommendation), a defendant or juvenile may plead guilty “with a request for a specific disposition” that “may include any disposition or dispositional terms within the court’s jurisdiction.” G. L. c. 278, § 18. See Mass. R. Crim. P. 12 (c) (2) (B), as appearing in 442 Mass. 1511 (2004). During the plea colloquy, a judge must inform the defendant or juvenile that the judge will not impose a disposition that exceeds the terms of the defendant’s or juvenile’s request without giving the defendant or juvenile the opportunity to withdraw the plea. G. L. c. 278, § 18. See Mass. R. Crim. P. 12 (c) (2) (B).

6 The judge must inform the defendant that he may not withdraw the plea if the judge imposes a sentence more severe than the prosecutor’s recommendation. Fed. R. Crim. P. 11 (c) (3) (B).

7 A judge may review a presentence report before accepting a guilty plea only with the written consent of the defendant. Fed. R. Crim. P. 32 (e) (1).

8 The dissent contends that rule 12 permits a plea agreement that provides for an agreed recommendation that is binding on the judge. Post at 265. It claims that the agreement identified in rule 12 (b) (1) (B) &emdash; a “[Recom-mendation of a particular sentence or type of punishment with the specific understanding that the recommendation shall not be binding upon the court” &emdash; is merely one of the many agreements authorized under the rule, and notes that rule 12 (b) (1) (H) acknowledges that there may be other agreements “involving recommendations or actions.” Post at 266-267. It contends that an agreement providing for an agreed recommendation that binds a judge is one of these other agreements. Post at 267. In fact, the dissent contends that, un-less a plea agreement with an agreed recommendation specifically declares that it does not bind the judge, it should be implied that the judge is bound to sentence the defendant to the agreed recommendation once the judge accepts the defendant’s guilty plea. Post at 267, 272.

There are two flaws in the dissent’s argument. First, while mle 12 (b) (1) (H) recognizes the possibility of plea agreements beyond those specified in rule 12 (b) (1) (A)-(G), where a plea agreement provides for an agreed the rule provides that the recommendation comes “with the specific understanding that the recommendation shall not be binding upon the court.” Mass. R. Grim. P. 12 (b) (1) (B). Contrast Mass. R. Grim. P. 12 (b) (1) (C) (“Recommendation of a particular sentence . . . which may also include the specific understanding that the defendant shall reserve the right to request a lesser sentence” [emphasis added]). Second, the dissent recognizes that even a binding plea agreement does not bind a judge to accept an agreed but the procedure suggested by the dissent for a judge to reject a binding agreement is contrary to the plea procedure established in rule 12. As noted, supra, our rule 12 (c) (5) (B) requires a judge at the plea hearing to ac-cept or reject “the plea or admission,” not the plea agreement, and the “plea or admission” is accepted or rejected based solely on the voluntariness of the plea and the factual basis of the charge. Mass. R. Grim. P. 12 (c) (5). Only after the guilty plea is accepted may a judge proceed to sentencing. Mass. R. Grim. P. 12 (c) (5) (C). In essence, the dissent would transform a plea hearing into a preliminary sentencing hearing where a judge must decide whether to accept or reject the agreed recommendation. Where a judge accepts the the actual sentencing hearing would become a formality, because the judge would be barred from imposing any sentence other than the agreed recommendation once it has been accepted.

The dissent’s description of our plea procedure reflects Fed. R. Crim. P. 11, not our rule 12. Post at 266-267. However, because we respect the concerns raised by the dissent, the Commonwealth, and the amici district attorneys, we shall ask this court’s standing advisory committee on the rules of criminal procedure to consider whether amendments to rule 12 are necessary or appropriate and, if so, whether rule 29 should be amended to conform with any such amendments.

9 The defendant explained that the symptoms of his syncope disorder are “like seizures,” in that he has low blood pressure, passes out, and shakes.

10 Percocet is the brand name for a combination of oxycodone hydrochloride and acetaminophen that is prescribed for the relief of moderate to moderately severe pain. Physicians’ Desk Reference 1096-1097 (65th ed. 2010).

11 The prosecutor was given an opportunity to respond to the information furnished in the rule 29 hearing, but he offered no response. Nor did he ask for additional time to respond.

12 Article 30 of the Massachusetts Declaration of Rights provides: “In the government of this Commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.”