Commonwealth v. DiBenedetto

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SJC-13253
COMMONWEALTH vs. FRANK DiBENEDETTO.
Suffolk. November 4, 2022. – February 28, 2023.
Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker,
& Wendlandt, JJ.
Due Process of Law, Plea. Constitutional Law, Plea. Practice,
Criminal, Capital case, Plea, Trial of defendants together,
Postconviction relief, District attorney. District
Attorney. Words, "New and substantial question."
Indictments found and returned in the Superior Court
Department on May 21, 1986.
Following review by this court, 414 Mass. 37 (1992), 427
Mass. 414 (1998), 458 Mass. 657 (2011), and 475 Mass. 429(2016), a motion for postconviction relief, filed on May 7,
2021, was heard by James F. Lang, J.
A request for leave to appeal was allowed by Gaziano, J.,
in the Supreme Judicial Court for the county of Suffolk.
Ruth Greenberg for the defendant.
Cailin M. Campbell, Assistant District Attorney, for the
Commonwealth.
The following submitted briefs for amici curiae:
Travis H. Lynch, Assistant District Attorney, for District
Attorney for the Hampden District.
Robert F. Hennessy for Committee for Public Counsel
Services.
2
GAZIANO, J. In 1994, the defendant, who had been indicted,
along with two codefendants, on two counts of murder in the
first degree, and was to be tried jointly with one of his
codefendants, was offered a "package deal" plea bargain. Under
the terms of this offer, the defendant would have been able to
plead guilty to manslaughter, but only if his codefendant also
agreed to the same plea. The defendant agreed to the terms of
the agreement, but his codefendant, a juvenile, refused. Both
the defendant and his codefendant subsequently were tried and
convicted of all charges, and sentenced to consecutive terms of
life in prison without the possibility of parole. In May 2021,
the defendant filed a motion in the Superior Court, pursuant to
Mass. R. Crim. P. 30, as appearing in 435 Mass. 1501 (2001), to
vacate his convictions of murder in the first degree and to
accept his pleas to manslaughter, as the Commonwealth originally
had offered. The defendant's motion to enforce the terms of the
proffered agreement was based on the argument that the condition
attached to the offer -- that both he and his codefendant plead
guilty -- violated his due process right to decide whether to
accept the plea or to go to trial. A Superior Court judge, who
was not the trial judge, denied the motion. The defendant filed
a gatekeeper petition in the county court, pursuant to G. L.
c. 278, § 33E, seeking leave to appeal from the denial of the
3
motion, and a single justice allowed the appeal to proceed in
this court.
We conclude that the plea offer did not violate the
defendant's rights to due process. A package deal plea is
consonant with the prosecutor's broad discretion to decide
whether, and under what terms, to enter into a plea agreement.
A prosecutor may insist that, in order for a defendant to
receive a more lenient sentence than what might be received at
trial, all codefendants must agree to waive their rights to
trial.1
1. Background. a. Prior proceedings. This case has a
lengthy history in this court. In April 1988, the defendant and
one of his codefendants, Louis R. Costa, were found guilty of
two counts of murder in the first degree after a joint trial.
Another codefendant, Paul Tanso, also was convicted of two
counts of murder in the first degree at a separate trial. In
1992, this court reversed the convictions of all three
defendants because recorded testimony of a witness who was
unavailable at the trials had been admitted improperly. See
Commonwealth v. DiBenedetto, 414 Mass. 37, 50 (1992);
1 We acknowledge the amicus briefs submitted by the district
attorney for the Hampden district and the Committee for Public
Counsel Services.
4
Commonwealth v. Tanso, 411 Mass. 640, 656, cert. denied, 505
U.S. 1221 (1992).
The defendant and Costa were retried jointly, and on
February 3, 1994, they each were convicted of two counts of
murder in the first degree on a theory of deliberate
premeditation. The defendant also was found guilty on a theory
of extreme atrocity or cruelty. The defendant and Costa each
were sentenced to consecutive sentences of life without the
possibility of parole. This court affirmed the convictions and
denied the defendants' requests for relief under G. L. c. 278,
§ 33E. See Commonwealth v. DiBenedetto, 427 Mass. 414, 416
(1998). In March 1994, Tanso was retried separately and was
acquitted.
In 2005, the defendant and Costa each filed a motion for a
new trial based on newly discovered evidence concerning
deoxyribonucleic acid testing of bloodstains on the defendant's
sneakers. In 2009, the Superior Court judge who had presided
over the defendant's second trial denied these motions. The
defendant and Costa each filed gatekeeper petitions in the
county court pursuant to G. L. c. 278, § 33E, seeking leave to
appeal from the denial of their motions for a new trial; two
different single justices allowed these gatekeeper petitions to
proceed. On a consolidated appeal from the denials, this court
remanded the matter to the Superior Court for further findings
5
concerning the newly uncovered evidence and its exculpatory
value. See Commonwealth v. DiBenedetto, 458 Mass. 657, 670-673
(2011). After a nonevidentiary hearing, a Superior Court judge
again denied the motions. The defendant then filed a petition
in the county court to reinstate his appeal in the full court.
A single justice held that the defendant was "required to seek
leave to appeal from the renewed denial of his new trial motion
through a second gatekeeper petition under [G. L. c. 278,]
§ 33E." Commonwealth v. DiBenedetto, 475 Mass. 429, 431 (2016).
The single justice "treated the defendant's petition to
reinstate his appeal as a second gatekeeper petition" and
"denied the petition." Id. In September 2015, "the defendant
filed a motion in the full court to reinstate his appeal." Id.
at 431-432. We held that "reinstatement of the appeal [was]
appropriate, even though the court did not expressly retain
jurisdiction." Id. at 432. We further concluded that the
"motion judge did not abuse his discretion in denying the
defendant's motion [for a new trial]." Id.On October 9, 2015, Costa, who was sixteen at the time of
the shooting, was resentenced to serve two concurrent life
sentences with the possibility of parole. The resentencing
followed this court's decision in Diatchenko v. District
Attorney for the Suffolk Dist., 466 Mass. 655, 671 (2013), S.C.,
471 Mass. 12 (2015), in which we concluded that the
6
Massachusetts Declaration of Rights does not permit a sentence
of life in prison without the possibility of parole for
individuals who commit murder in the first degree while under
the age of eighteen. On July 26, 2018, Costa was released on
parole.
In May 2021, the defendant, who was nineteen years old at
the time of the shooting, filed a motion in the Superior Court,
pursuant to Mass. R. Crim. P. 30, to vacate his convictions of
murder in the first degree and to enforce a plea arrangement
under which he would plead guilty to two counts of manslaughter.
In his motion, the defendant asserted that, during his retrial
in 1994, the prosecutor offered him and Costa a plea agreement
in which they each would plead guilty to manslaughter, but only
on the condition that both of them accepted the arrangement.
The defendant agreed to accept the proffered agreement, but
Costa rejected it. As grounds for his motion, the defendant
argued that "making [his] plea offer contingent on the
willingness of his codefendant to accept it . . . violated his
due process right, protected by the Fourteenth Amendment and
art. 12, to make his own decision whether to accept the plea or
go to trial." The defendant's motion was denied. The defendant
filed another gatekeeper petition pursuant to G. L. c. 278,
§ 33E, in the county court, seeking leave to appeal from the
denial of the motion. The single justice allowed the appeal to
7
proceed "on the ground that it presents a new and substantial
question which ought to be determined by the full court."
b. Plea offer. The defendant submitted six affidavits to
support his contention that the Commonwealth offered him and
Costa a plea arrangement during the course of the 1994 retrial.
One affidavit was by the defendant himself; two were from the
attorney who represented him on retrial; one was by the
attorney's then associate, who assisted him on the case; one was
from the defendant's sister, who was in the court room during
the retrial; and one was by Costa.
The defendant avers that the prosecutor offered him and
Costa the opportunity to plead guilty to two counts of
manslaughter, with the imposition of consecutive sentences,
provided that both accepted the offer. The defendant recollects
that the plea arrangement would have included a combined
sentence of from twenty-four to twenty-six years; the defendant
asserts that, given then-available statutory good time and
reductions for time served, had he been able to accept the plea,
he would have been released in 2004. The defendant maintains
that he wanted to accept the offer, but that Costa refused to do
so. According to the defendant, if he were released from
custody, he would live with his sister and would work at a
restaurant that she and her husband own.
8
The other affidavits accord with the defendant's
recollection. Costa recalled that the plea arrangement would
have required that the defendants "agree to a sentence that
would have each of [them] serve another eight or so years in
prison"2 and that "[t]he offer was a take it or leave it for both
of [them] together." The other affiants did not recall the
length of the proposed sentence.
According to the affidavit by the defendant's sister,
during the 1994 retrial, she "learned that the Commonwealth had
offered [the defendant] and his codefendant . . . a plea to
manslaughter provided that both of them accepted it. [The
defendant] said he wanted to accept the plea. In a hallway
outside the courtroom, [she] saw [Costa's] lawyer . . . get on
his knees and beg [Costa] to take the plea, but he refused."
The defendant's attorney and his associate each recalled that
Costa's attorney told them that he had "gotten on his knees and
begged Costa to accept the plea, but he still refused."
2 The shooting took place on February 19, 1986. The
defendant and his codefendants were arrested on February 23,
1986. The defendant and Costa originally were sentenced on
April 11, 1988. On December 28, 1992, this court reversed the
judgments, set aside the verdicts, and remanded the cases for a
new trial, and the defendant was released on bail. On February
3, 1994, the defendant and Costa were convicted after retrial.
The defendant asserts that, at the time the plea agreement was
proffered, he had been incarcerated for four years and four
months.
9
The defendant's attorney averred that, in November 2020, he
spoke with the assistant district attorney who prosecuted the
case. That assistant district attorney, who is now a Superior
Court judge, recalled that there had been a plea offer that had
been approved by the district attorney. She further recalled
that it was her practice at the time to "require package pleas
in cases involving codefendants." She did not remember the
specific terms of the offer. The defendant's attorney also
explained in his affidavit that he had informed the
Commonwealth, either through the assistant district attorney who
prosecuted the case or through a first assistant district
attorney, that the defendant wished to accept the offer and
"urged that it be accepted despite Costa's refusal."
The Commonwealth agrees that the defendant and Costa
received a plea offer that was contingent on acceptance by both
of them. The Commonwealth takes no stance on the specific terms
of the arrangement.
2. Discussion. A "package deal" plea agreement is a plea
arrangement under which "the government accepts a defendant's
guilty plea on the condition that his [or her] co-defendant(s)
also plead guilty." United States v. Hodge, 412 F.3d 479, 489
10
(3d Cir. 2005).3 The defendant argues that a prosecutor's offer
to participate in a package agreement violates his rights to due
process under the Fourteenth Amendment to the United States
Constitution and art. 12 of the Massachusetts Declaration of
Rights; the defendant maintains that such an offer violates the
due process rights of the defendant who receives the offer,
because the defendant's ability to plead is arbitrarily and
unfairly made contingent upon the willingness of a codefendant
to do so. The defendant contends, therefore, that the plea
offer he received in 1994 was a violation of his due process
rights and that the appropriate remedy is to enforce the 1994
plea offer, even though Costa refused to accept it at the time.
The Commonwealth argues that the defendant has waived any
claims he might have concerning the 1994 plea offer, because he
failed to raise them when he moved for a new trial in 2005. The
Commonwealth also argues that the package plea offer did not
infringe upon the defendant's due process rights.
Ordinarily, "[w]e review the denial of a motion brought
under Mass. R. Crim. P. 30 (a) . . . for abuse of discretion or
3 Package plea deals also have been described as "wired"
pleas, United States v. Knight, 981 F.3d 1095, 1102 (D.C. Cir.
2020); "locked" pleas, United States v. Hodge, 412 F.3d 479, 482
(3d Cir. 2005); "contingent" pleas, State v. Solano, 150 Ariz.
398, 401 (1986); "tied" pleas, State v. Hanslovan, 147 Idaho
530, 534 (2008); and "linked" pleas, People v. Wyatt, 2 A.D.3d
218, 219 (N.Y. 2003).
11
error of law." Commonwealth v. Perez, 480 Mass. 562, 567
(2018). Where, however, "a defendant claims that a judge has
made an error of constitutional dimension, we accept the judge's
subsidiary findings of fact absent clear error . . . but review
independently the application of constitutional principles to
the facts found" (quotations and citation). Id. at 567-568.
The defendant's argument here is constitutionally based, and
thus we review the denial of his motion de novo.
a. New and substantial question. As an initial matter, we
consider whether the defendant's claim presents a new and
substantial question. Under G. L. c. 278, § 33E, a defendant
"is entitled to review of the denial of his [or her]
motion . . . if and only if [the defendant] can show that he [or
she] is raising an issue that is 'new and substantial.'"
Commonwealth v. Gunter, 459 Mass. 480, 488, cert. denied, 565
U.S. 868 (2011). "An issue is not 'new' within the meaning of
G. L. c. 278, § 33E, where either it has already been addressed,
or . . . it could have been addressed had the defendant properly
raised it . . . ." Commonwealth v. Ambers, 397 Mass. 705, 707
(1986). Accordingly, "[i]f a defendant fails to raise a claim
that is generally known and available at the time of trial or
direct appeal or in the first motion for postconviction relief,
the claim is waived." Rodwell v. Commonwealth, 432 Mass. 1016,
1017-1018 (2000). A claim is deemed waived under G. L. c. 278,
12
§ 33E, however, only if the defendant previously had a "genuine
opportunity" to raise it (citation omitted). See Mains v.
Commonwealth, 433 Mass. 30, 33 (2000). See also Rodwell, supra("the waiver principles that we apply pursuant to [G. L.
c. 278,] § 33E," are similar to "the waiver rules expressed in"
Mass. R. Crim. P. 30 (c) (2), which provides that claim is not
waived if it "could not reasonably have been raised in the
original or amended motion"). A genuine opportunity did not
exist if the "theory on which the [defendant's argument relies]
was not sufficiently developed at the time of [trial, in a
direct appeal, or in a prior motion for postconviction relief]"
(citation omitted). Mains, supra at 34.
Here, the single justice determined that the defendant's
motion to enforce the 1994 plea offer "raises a new and
substantial question regarding the scope of constitutional
protections afforded a defendant during the plea-bargaining
process." The Commonwealth, however, argues that the
defendant's claim is not new, because he had had prior
opportunities to raise the issue, and thus the claim has been
waived. The defendant maintains that he has not waived the
claim, because the theory on which it relies was not available
prior to 2012, when the United States Supreme Court issued its
decisions in two companion cases, Lafler v. Cooper, 566 U.S. 156(2012), and Missouri v. Frye, 566 U.S. 134 (2012).
13
In both Frye, 566 U.S. at 143, and Lafler, 566 U.S. at 174,
the Court held that, at least in certain instances, a fair trial
may not suffice to cure a violation of a defendant's
constitutional rights during pretrial plea bargaining. In Frye,
supra at 138-139, defense counsel failed to advise his client of
a prosecutor's plea offers, and the offers expired; the
defendant eventually pleaded guilty on more severe terms than he
would have had if he had accepted the original offers. The
Court held that the defendant's right under the Sixth Amendment
to the United States Constitution to the effective assistance of
counsel applies to plea bargaining, and remanded the matter to
the trial court to determine whether defense counsel's failure
to inform the defendant resulted in Strickland prejudice.4 Id.
at 147, 151. The Court reasoned that "it is insufficient simply
to point to the guarantee of a fair trial as a backstop that
inoculates any errors in the pretrial process." Id. at 143-144.
4 In Strickland v. Washington, 466 U.S. 668, 687 (1984), the
United States Supreme Court held that, to establish that
"counsel's assistance was so defective as to require reversal of
a conviction," a defendant must show, first, "that counsel's
performance was deficient," and second, that "the deficient
performance prejudiced the defense." The Court in Missouri v.
Frye, 566 U.S. 134, 148 (2012), held that there is Strickland
prejudice in the plea bargaining context if a defendant can show
there is a "reasonable probability [the defendant] would have
accepted the earlier plea offer" absent deficient performance by
counsel and "there is a reasonable probability neither the
prosecution nor the trial court would have prevented the offer
from being accepted or implemented."
14
In Lafler, supra at 160-161, the defendant rejected the
prosecutor's plea offers due to erroneous advice by his
attorney, and was convicted at trial. The Court held that
defense counsel's faulty advice violated the defendant's Sixth
Amendment right to the effective assistance of counsel. Id.
at 174. Furthermore, the Court held, the fact that the
defendant had had a fair trial did not "wipe[] clean any
deficient performance by defense counsel during plea
bargaining." Id. at 169. As a remedy, the Court ordered the
State to reoffer the defendant the original plea agreement. Id.
at 174.
The defendant relies upon Lafler, 566 U.S. at 174, and
Frye, 566 U.S. at 143-144, to argue that the 1994 plea offer
should be enforced, regardless of whether he subsequently
received a fair trial. At the time of Lafler, supra, and Frye,
supra, this court had not endorsed the enforcement of an expired
plea offer as a remedy. See Commonwealth v. Mahar, 442 Mass.
11, 27 (2004) (Sosman, J., concurring) ("There is no basis for
ordering the prosecutor to revive the withdrawn offer as a
remedy for defense counsel's deficient advice concerning the
original plea offer"). See also Lafler, supra at 183 (Scalia,
J., dissenting) ("It is a remedy unheard of in American
jurisprudence -- and, I would be willing to bet, in the
jurisprudence of any other country"). The Court's holdings in
15
Lafler, supra, and Frye, supra, obviously were not available to
the defendant in 2005, when he moved for a new trial, nor in
2009, when he filed a gatekeeper petition seeking leave to
appeal from the denial of that motion. The defendant therefore
lacked a genuine opportunity to raise this claim prior to the
present motion. See Mains, 433 Mass. at 33 (no genuine
opportunity to raise claim until after issuance of United States
Supreme Court decisions on which claim was based).
The Commonwealth argues that the defendant had a previous
opportunity to raise a claim that relied upon Lafler, 566 U.S.
at 174, and Frye, 566 U.S. at 143-144, because he actively was
pursuing litigation in this case in 2012. In that year,
however, the defendant was litigating the motion for a new trial
that he had filed in 2005, following this court's remand for
further findings in 2009. See DiBenedetto, 458 Mass. at 672-
673. This court retained jurisdiction over the case while it
was remanded to the Superior Court, and then, in 2016,
reinstated the defendant's 2009 appeal once the Superior Court
judge's "further hearing and findings" enabled us to decide the
issue the defendant had raised in 2005. See DiBenedetto, 475
Mass. at 437-438. We concluded that the defendant was not
required to file a new gatekeeper petition pursuant to G. L.
c. 278, § 33E, in order to have his appeal reinstated, because
"a single justice already determined in 2009 that the
16
defendant's motion for a new trial raised a new and substantial
issue worthy of consideration by the full court." Id. at 437.
The defendant was not able to raise a new issue in his petition
to reinstate his appeal, because, had he done so, he would have
had to submit a new gatekeeper petition pursuant to G. L.
c. 278, § 33E. See id. at 438 n.12. The defendant therefore
did not have an opportunity to raise a new claim during the
period of litigation between 2012 and 2016. Accordingly, he has
not waived his claim challenging the constitutionality of the
plea offer that he was presented in 1994.
We also agree with the single justice that the defendant's
claim is "substantial." To be "substantial," a claim must
present a "meritorious issue . . . worthy of consideration by an
appellate court." Gunter, 459 Mass. at 487. As the single
justice explained, the issue presented here -- whether package
agreements are consistent with a defendant's rights to due
process -- has been a subject of disagreement among judges in
the Superior Court, and has not been addressed by this court
since the United States Supreme Court issued its decisions in
Lafler and Frye. Accordingly, we conclude that the defendant
has presented a "new and substantial question."
b. Plea bargaining. Prosecutors have "substantial freedom
to exercise their discretion in plea bargaining." Commonwealth
v. Smith, 384 Mass. 519, 522 (1981). It is the prosecutor's
17
role to determine, on behalf of the Commonwealth, whether the
public interest would benefit from a plea agreement. See
Commonwealth v. Gordon, 410 Mass. 498, 500 (1991), S.C., 422
Mass. 816 (1996). A defendant therefore has "no right to insist
that the prosecutor participate in plea bargaining." Smith,
supra. The discretion granted to the prosecutor in plea
bargaining "rests largely on the recognition that the decision
to prosecute is particularly ill-suited to judicial review"
(citation omitted). Commonwealth v. Latimore, 423 Mass. 129,
136 (1996). Judicial supervision of prosecutorial discretion
over plea bargaining could "threaten[] to chill law enforcement
by subjecting the prosecutor's motives and [decision-making] to
outside inquiry, and may undermine prosecutorial effectiveness
by revealing the Government's enforcement policy" (citation
omitted). United States v. Armstrong, 517 U.S. 456, 465 (1996).
That is not to say that there are no constraints on the
prosecutor's actions in plea bargaining. See Lafler, 566 U.S.
at 168. To the contrary, "[t]his phase of the process of
criminal justice, and the adjudicative element inherent in
accepting a plea of guilty, must be attended by safeguards to
insure the defendant what is reasonably due in the
circumstances." Santobello v. New York, 404 U.S. 257, 262
(1971). Hence, "[d]ue process requires that '[a] "plea is valid
only when the defendant offers it voluntarily, with sufficient
18
awareness of the relevant circumstances . . . and with the
advice of competent counsel"'" (citation omitted). Commonwealth
v. Roberts, 472 Mass. 355, 362 (2015). Moreover, a judge may
"enforce a plea agreement over the Commonwealth's objection if
[the judge] finds that the defendant has reasonably relied on a
prosecutor's promise to his or her detriment." Commonwealth v.
Francis, 477 Mass. 582, 585 (2017).
This court previously has suggested that package plea
offers do not violate a defendant's due process rights. In
Smith, 384 Mass. at 520, the defendant was tried with a
codefendant on charges of murder in the first degree. The
prosecutor indicated that he would accept a guilty plea to
murder in the second degree from the defendant "only if [his
codefendant] also pleaded guilty to murder in the second
degree." Id. At first, the codefendant rejected the offer, and
thus prevented the defendant from accepting it. Id. After jury
deliberations began, however, the codefendant pleaded guilty to
murder in the second degree with the approval of the prosecutor.
Id. at 521. Thereafter, the defendant attempted to plead to
murder in the second degree, but "the prosecutor opposed it,"
and the defendant was convicted of murder in the first degree.
Id. The judge denied the defendant's motion for a new trial
because he concluded that the plea offer had expired once the
jury began deliberations and therefore was no longer enforceable
19
over the Commonwealth's objection. Id. We affirmed. Id.
at 520. While the defendant did not challenge the
constitutionality of the package arrangement that he was
offered, we observed in passing that "[s]uch an arrangement has
survived challenge." Id. at 520 n.2. In affirming the trial
judge's ruling, we reasoned that "[t]he defendant is in no worse
position than he would have been if the prosecutor had made no
plea bargain offer at all," because "the defendant is left with
the adequate remedy of having a trial." Id. at 522.
The defendant maintains that the United States Supreme
Court's reasoning in Lafler, 566 U.S. at 169-170, and Frye, 566
U.S. at 143-144, calls into question this court's reasoning in
Smith, 384 Mass. at 522. In contrast to this court's holding in
that case, the United States Supreme Court in Lafler, supra
at 166, observed that "[e]ven if the trial itself is free from
constitutional flaw, the defendant who goes to trial instead of
taking a more favorable plea may be prejudiced from either a
conviction on more serious counts or the imposition of a more
severe sentence." While defendants have "no right to be offered
a plea," the State "nonetheless [must] act in accord with the
dictates of the Constitution" once it decides to engage in plea
bargaining (citations omitted). Id. at 168. The defendant
contends that the offer of the package agreement violated his
rights to due process and, therefore, in order to cure the
20
injury, the terms of the offer should be enforced.5 See Lafler,
supra at 166.
c. Fundamental right. The defendant argues that the
condition attached to the plea offer -- that Costa also had to
plead guilty in order for the defendant to plead to a lesser
charge -- violated the defendant's fundamental right to choose
whether to accept or reject the offer. According to the
defendant, the package deal unfairly impeded his ability to
enter into a plea agreement with the Commonwealth, because the
success of the plea arrangement turned on Costa's willingness to
plead, a factor over which the defendant had no control.
5 Prior to 2012, at least four United States Circuit Courts
of Appeals, and three State appellate courts, had rejected
challenges to package plea deals where a defendant could not
plead guilty because a codefendant had rejected the terms of the
offer. See United States v. Gonzalez-Vazquez, 219 F.3d 37, 43
(1st Cir. 2000); United States v. Gonzales, 65 F.3d 814, 823
(10th Cir. 1995), vacated on other grounds, 520 U.S. 1 (1997);
United States v. Gonzalez, 918 F.2d 1129, 1134 (3d Cir. 1990),
cert. denied, 498 U.S. 1107, 499 U.S. 968, and 499 U.S. 982(1991); United States v. Wheat, 813 F.2d 1399, 1405 (9th Cir.
1987), aff'd, 486 U.S. 153 (1988); State v. McInelly, 146 Ariz.
161, 165 (1985); People v. Barnett, 113 Cal. App. 3d 563, 574
(1980); Bostic v. State, 184 Ga. App. 509, 511 (1987). Since
the United States Supreme Court decided Frye and Lafler in 2012,
all appellate decisions of which we are aware have rejected
constitutional challenges to package plea deals. See United
States v. Knight, 981 F.3d 1095, 1108 (D.C. Cir. 2020); United
States v. Martin, 516 Fed. Appx. 433, 442-443 (6th Cir.), cert.
denied, 571 U.S. 919 and 571 U.S. 936 (2013); Lampkin v. State,
495 P.3d 529 (Nev. Ct. App. 2021); State v. Drain, 2020-Ohio-
701, at ¶¶ 12-15.
21
We evaluate a claim that the Commonwealth has impaired a
fundamental right under the framework of substantive due
process. See Dutil, petitioner, 437 Mass. 9, 13 (2002).
Substantive due process is guaranteed by the Fourteenth
Amendment to the United States Constitution, as well as by arts.
1, 10, and 12 of the Massachusetts Declaration of Rights. See
Kligler v. Attorney Gen., 491 Mass. 38, 55 (2022). "Substantive
due process prevents the government from engaging in conduct
that shocks the conscience . . ." (quotations and citation
omitted), Vega v. Commonwealth, 490 Mass. 226, 231 (2022), or
that "unduly interfere[s] with rights that are deemed
fundamental," Kligler, supra. Where fundamental rights are
involved, governmental conduct is "subject to strict scrutiny,
an exacting form of judicial review requiring that the statute
be narrowly tailored to further a compelling and legitimate
government interest" (quotation and citation omitted). Id.
"Fundamental rights are those rights that are explicitly or
implicitly guaranteed by the Constitution" (quotation and
citation omitted). Kligler, 491 Mass. at 55. We have
recognized that the Massachusetts Declaration of Rights "may
demand broader protection for fundamental rights than the
Federal Constitution" (citation omitted). Id. at 60. We adopt
a "comprehensive approach" to identifying fundamental rights
under the Massachusetts Declaration of Rights. Id. Under this
22
approach, the court must use "reasoned judgment" to identify
"interests of the person so fundamental that the State must
accord them its respect." Id. at 58, quoting Obergefell v.
Hodges, 576 U.S. 644, 664 (2015).
We conclude that the package plea offer did not violate the
defendant's fundamental due process rights under either the
United States Constitution or the Massachusetts Declaration of
Rights. "It is undisputed that a criminal defendant has no
constitutional right to a plea bargain." Commonwealth v.
Marinho, 464 Mass. 115, 127 (2013). See Lafler, 566 U.S.
at 168. Rather, "[t]he decision whether the Commonwealth enters
into a plea agreement with the defendant is the prosecutor's
alone." Francis, 477 Mass. at 585. In deciding whether to
enter into a plea agreement, the prosecutor may consider, among
other factors, "the strength of the case, the prosecution's
general deterrence value, the Government's enforcement
priorities, and the case's relationship to the Government's
overall enforcement plan." Wayte v. United States, 470 U.S.
598, 607 (1985). The prosecutor therefore may choose whether to
extend a plea offer to a defendant due to factors that are
outside the defendant's control, so long as those factors are
not "based upon an unjustifiable standard such as race,
religion, or other arbitrary classification" (citation omitted).
Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978). See
23
Commonwealth v. Wilbur W., 479 Mass. 397, 409 (2018). Contrast
Marshall v. Jerrico, Inc., 446 U.S. 238, 249-250 (1980) ("A
scheme injecting a personal interest, financial or otherwise,
into the enforcement process may bring irrelevant or
impermissible factors into the prosecutorial decision and in
some contexts raise serious constitutional questions"); United
States v. Redondo-Lemos, 955 F.2d 1296, 1297-1298, 1301-1302
(9th Cir. 1992), overruled on other grounds by United States v.
Armstrong, 48 F.3d 1508 (9th Cir. 1995) (remanding to District
Court to determine whether government purposely gave more
favorable plea bargains to women as compared to men). For
example, a prosecutor may prioritize the wishes of a victim, and
may choose to enter into a plea agreement with a defendant only
if a victim or a victim's family first approves the agreement.
See Latimore, 423 Mass. at 137. There is no apparent reason,
then, why a prosecutor may not communicate to a defendant that
the prosecutor will agree to a plea only if a codefendant also
agrees to plead guilty.
In support of his argument that a package deal plea offer
violates a fundamental right, the defendant points to two United
States Supreme Court decisions. He first relies on language in
Bordenkircher, 434 U.S. at 363, wherein the Court stated that a
defendant's due process rights are violated if the defendant is
not "free to accept or reject the prosecution's offer." That
24
case, however, was about the defendant's right freely to reject
a plea offer without facing retaliation for doing "what the law
plainly allows him [or her] to do." Id. There is nothing in
the Court's holding to suggest that a defendant has a right to
accept a plea offer under terms to which the prosecutor has not
agreed. See id. at 365. The defendant also cites Jones v.
Barnes, 463 U.S. 745, 751 (1983), in which the Court stated that
a defendant "has the ultimate authority to make certain
fundamental decisions regarding the case," including "whether to
plead guilty." Jones, supra, however, concerned the authority
that a defendant has vis-à-vis the defendant's attorney to
control certain pretrial decisions and decisions at trial. See
id. at 746. The cited language simply explained that the
defendant's attorney may not override the defendant's decision
whether to plead guilty. See id. at 751.
d. Rational basis review and procedural due process.
Governmental conduct that does "not have an impact on
fundamental rights . . . [is] subject to rational basis review,
a less exacting standard of review whereby a challenged [action]
will pass constitutional muster . . . if it bears a reasonable
relation to a permissible legislative objective" (quotations and
citation omitted). Kligler, 491 Mass. at 55. Moreover, if a
statute or governmental action has survived substantive due
process scrutiny, "[p]rocedural due process requires that [it]
25
be implemented in a fair manner" (quotation and citation
omitted). See Aime v. Commonwealth, 414 Mass. 667, 674 (1993).
The defendant contends that the package plea offer did not
serve a legitimate public purpose, and was arbitrary and unfair.
We conclude that package plea offers serve a legitimate public
purpose and that such offers are not inherently unfair to a
defendant. Accordingly, they pass constitutional muster. See
Kligler, 491 Mass. at 73.
When a prosecutor enters into a plea agreement with a
defendant, the prosecutor agrees to "limit[] the defendant's
criminal liability." Newton v. Rumery, 480 U.S. 386, 410 (1987)
(Stevens, J., dissenting). In return, the Commonwealth avoids
trial, and thereby conserves "scarce judicial and prosecutorial
resources." Brady v. United States, 397 U.S. 742, 752 (1970).
Where a prosecutor jointly tries two or more defendants, the
only way for the Commonwealth to avoid the effort and expense of
a trial is for each defendant to plead guilty; if only one
defendant pleads guilty, the Commonwealth still must try those
defendants who did not waive the right to trial. See
Commonwealth v. Hubbard, 457 Mass. 24, 25 (2010) (by pleading
guilty defendant waives right to trial by jury). In proffering
a package plea arrangement, a prosecutor can be assured that
each defendant will receive lenient treatment only if, in
return, the Commonwealth obtains the complete avoidance of
26
trial. See In re Ibarra, 34 Cal. 3d 277, 289 n.5 (1983)
(package plea deal "may be a valuable tool to the
prosecutor" because "prosecutor may be properly interested in
avoiding the time, delay and expense of trial of all the
defendants").
In the defendant's view, package plea offers are
unnecessary, and therefore reliance upon them is arbitrary and
unfair, because individual plea offers are a more effective
means of conserving the Commonwealth's resources. The defendant
maintains that a package deal is effective only if all
defendants choose to plead, because otherwise all defendants
must be tried. Individual plea offers, by contrast, allow the
Commonwealth to save on costs by trying fewer defendants, even
if not all defendants agree to plead.
Here, the defendant contends, an individual trial of Costa
would have been less costly than the joint trial that did take
place, because the former option would have saved the
Commonwealth from having to present evidence that pertained to
the defendant's, and not Costa's, guilt. Furthermore, had the
prosecutor allowed the defendant to plead, and solely tried
Costa, the Commonwealth would have had to respond to the
objections and arguments of only one defense attorney, rather
than two. The defendant notes that, while the joint trial with
Costa lasted fifteen days, Tanso's trial took place over only
27
eight days. The defendant asserts that, if the prosecutor's
goal was to conserve resources, that goal would have been better
served had she allowed the defendant to plead to manslaughter.
We disagree with the defendant's reasoning. In plea
bargaining, a prosecutor must make difficult calculations about
the trade-offs between seeking a harsher sentence for a
defendant and sparing the Commonwealth the burden of a trial.
See Wayte, 470 U.S. at 607. It is for the prosecutor, and the
prosecutor alone, to decide in any given instance whether these
trade-offs are in the public interest. See Francis, 477 Mass.
at 585.
Here, the prosecutor reasonably could have decided that it
would be worthwhile to allow the defendant to plead guilty to
manslaughter only if, thereby, trial were altogether avoided.
Consider, for example, that the prosecutor's focus could have
been on saving the victims' families from the ordeal of sitting
through a retrial. See Commonwealth v. Smith, 387 Mass. 900,
913 (1983) (Abrams, J., concurring) (retrial "forces the friends
and family of the victim to relive the trauma of the crime and
again suffer the ordeal of a trial"). An individual plea offer
would have permitted the defendant a more lenient sentence
without serving this legitimate interest. Accordingly, we
discern no reason to conclude that the package plea offer was
arbitrary or unfair. See County of Sacramento v. Lewis, 523
28
U.S. 833, 845 (1998) ("[t]he touchstone of due process is
protection of the individual against arbitrary action of
government" [citation omitted]); Commonwealth v. Blake, 454
Mass. 267, 283 (2009) ("Procedural due process, at a bare
minimum, requires that the proceedings against a defendant not
be fundamentally unfair").
e. Coercion. Finally, the defendant contends that the
offer of a package arrangement was designed to pressure him into
coercing Costa into pleading guilty. Nothing in the record,
however, suggests that this was the prosecutor's motive.
Moreover, neither the defendant nor Costa pleaded guilty, and
thus there is no risk that the plea offer had a coercive effect.
See United States v. Gonzalez-Vazquez, 219 F.3d 37, 43 (1st Cir.
2000) (concern "that the defendant may have been coerced into
giving up his right to go to trial obviously does not apply when
the defendant does go to trial"); United States v. Wheat, 813
F.2d 1399, 1405 (9th Cir. 1987), aff'd, 486 U.S. 153 (1988)
("defendant cannot complain that there was any coercion or
element of involuntariness here, because neither he nor his
codefendant accepted the [package deal plea offer]").
We agree, however, that there are legitimate concerns about
the potential for package plea agreements to be coercive. While
package plea agreements "are not per se involuntary," they
present a risk that "[o]ne defendant may be coerced into
29
pleading guilty by a co-defendant who believes he is getting a
good deal under the package deal." United States v. Mescual-
Cruz, 387 F.3d 1, 7 (1st Cir. 2004), cert. denied, 543 U.S. 1175and 543 U.S. 1176 (2005). Furthermore, when there is a family
relationship between two defendants, "one defendant . . .
[might] involuntarily sacrifice his [or her] own best interests
for those of a family member . . . in a belief that the package
deal will benefit the other." Id. See Bordenkircher, 434 U.S.
at 364 n.8; Hodge, 412 F.3d at 489; State v. Bey, 270 Kan. 544,
554-555 (2001); State v. Hoang Muc Danh, 516 N.W.2d 539, 542
(Minn. 1994). To mitigate these concerns, courts in other
jurisdictions have required that, for a package deal to be
enforced, the parties "must notify the . . . court that a
package deal exists," and the court must inquire into the
voluntariness of the package agreement "with special care."
Hodge, supra at 489-491. See Mescual-Cruz, supra at 8; United
States v. Caro, 997 F.2d 657, 659-660 (9th Cir. 1993); State v.
Solano, 150 Ariz. 398, 402 (1986); In re Ibarra, 34 Cal. 3d
at 288-290; Bey, supra at 555; Howell v. State, 185 S.W.3d 319,
335-336 (Tenn. 2006).
We conclude that courts in Massachusetts should adopt a
similar approach. Rule 12 (a) (3) of the Massachusetts Rules of
Criminal Procedure, as amended, 482 Mass. 1501 (2019), states
that a judge "may accept a plea of guilty . . . only after first
30
determining that it is made voluntarily with an understanding of
the nature of the charge and the consequences of the plea." "A
plea is voluntary if entered without coercion, duress, or
improper inducements" (citation omitted). Commonwealth v.
Sherman, 451 Mass. 332, 338 (2008). Accordingly, during the
plea colloquy, "a judge must conduct a real probe of the
defendant's mind to determine that the plea is not being
extracted from the defendant under undue pressure" (quotations
and citation omitted). Id. This inquiry is rendered incomplete
if the judge is not made aware that the defendant's codefendants
had reason to pressure the defendant to plead guilty.
Accordingly, from the date of the issuance of the rescript
in this case, if a plea agreement "is conditioned on the
cooperation of more than one defendant," the plea judge must be
informed of the "package nature of the deal."6 Caro, 997 F.2d
at 660. In the absence of such information, the judge's probe
into the voluntariness of the defendant's plea cannot account
for the "risks inherent in package deals." Mescual-Cruz, 387
F.3d at 9. Further, in determining whether a defendant whose
plea was pursuant to a package agreement "was subject to undue
pressure to plead guilty" (citation omitted), Sherman, 451 Mass.
6 We ask this court's standing advisory committee on the
rules of criminal procedure to propose a suitable amendment to
Mass. R. Crim. P. 12 to delineate these requirements.
31
at 338, the judge must consider "the traditional types of
coercion and the unique pressure from a co-defendant or family
member that might be present in a package deal," Mescual-Cruz,
supra. Consequently, a defendant must "be allowed to withdraw
his or her guilty plea if the [Commonwealth] fails to fully
inform the trial court of the nature of the [package] plea."
Bey, 270 Kan. at 555.
3. Conclusion. The Superior Court judge's order denying
the defendant's motion to enforce the plea bargain is affirmed.
So ordered.