| Mass. App. Ct. | Oct 7, 1982
We are asked to consider whether acceptance of a written withdrawal of an appeal to a jury of six session in a District Court must be accompanied by a colloquy between the judge and the defendant to ascertain if, in withdrawing his appeal, the defendant acted voluntarily and with understanding. We conclude that such a colloquy is required.
On December 21, 1979, Connor Construction Company, Inc. (the company), of which the defendant Eugene R. Connor was president, held Christmas revels during which the peaceful sentiments of the season apparently became submerged. Before the party was over, Eugene Connor, his son, his brother and four employees of the company were
Each defendant was found guilty, and the judge imposed fines aggregating $550 per defendant. The defendants promptly appealed to a jury of six session, conformably with G. L. c. 278, § 18, as appearing in St. 1978, c. 478, § 302.
On the advice of the company’s corporate counsel, the defendants retained a lawyer who specialized in criminal cases, Thomas Shapiro, whose office is in Boston. Eugene Connor thought local counsel would be helpful and brought into the picture a lawyer from Tewksbury, Kevin Sullivan, who, as the appellants’ brief put it, “was familiar with the Lowell Court.” Mr. Sullivan was to file an appearance in the cases and to address the court on behalf of the defendants, while Mr. Shapiro played a monitoring and advisory role. It was Mr. Sullivan’s object to vacate the finding of guilty, to have the cases continued for one year without a finding, and to have the fines reclassified as court costs.
Defendants were next scheduled to appear in court on January 16, 1980. Before the lunch recess on that day Mr. Sullivan thought he had reached agreement with the prosecution that it would recommend the terms he desired and so reported to Mr. Shapiro, who relayed the good news to the defendants. After arranging for the preparation of written withdrawals of the appeals with the clerk, Mr. Shapiro went serenely to lunch with the defendants.
Upon their return to court shortly before 2:00 p.m., the defendants learned from Mr. Sullivan that the understanding had become unglued: the police prosecutor would not join in the desired recommendation. Mr. Sullivan urged the defendants to withdraw their appeals despite the change in circumstances. Necessarily hasty consultation with Mr. Shapiro ensued but this was interrupted by a summons into
On January 21, 1980, Eugene and Michael Connor each filed a motion to vacate the judgments and to reinstate the appeals on the ground that “Defendant signed a written withdrawal of appeal without knowingly, voluntarily, and deliberately waiving his right to a jury trial in these matters.” After a hearing at which Eugene Connor, Michael Connor and Mr. Shapiro testified, the judge denied the motion from the bench. He did so without findings of fact, but indicated by comments that he took into account the defendants’ initial admission to sufficient facts and that, in consequence, the defendants’ argument was about disposition, rather than guilt. The judge also observed that three lawyers had advised the defendants at various stages and deduced, therefore, that they had not gone through the process uncounselled. From the denial of their motion, the defendants have appealed.
When the defendants came before him in the jury of six session, the District Court judge did not have the benefit of the opinion in Commonwealth v. Duquette, 386 Mass. 834" court="Mass." date_filed="1982-07-23" href="https://app.midpage.ai/document/commonwealth-v-duquette-2102848?utm_source=webapp" opinion_id="2102848">386 Mass. 834 (1982). There the court observed that the device of admitting to sufficient facts is primarily used to expedite a de nova jury trial at the second tier of District Court proceedings. Id. at 838. See also Smith, Criminal Practice and Procedure
Withdrawal of an appeal in the jury of six session has the same elements of lost opportunity for a jury trial and resultant finality. The effect of a withdrawal of an appeal from the jury of six session of a District Court is to waive the right to a trial by jury. That was the right waived in Ciummei v. Commonwealth, supra, and Costarelli, petitioner, supra. The court in those cases, while recognizing that waiver of a jury had not as much weight or consequence as a guilty plea, required nonetheless that a judge hold a brief colloquy with a defendant who waives a jury trial so that the judge may satisfy himself that the waivers are voluntary and intelligent. Ciummei v. Commonwealth, 378 Mass, at 508-510. Among the things a judge may wish to state in the case of a withdrawal of an appeal in the District Court, in addition to those set out in Ciummei, at 510,
The judgments are reversed, and the findings of guilty are set aside. The cases are remanded to the jury of six session of the District Court for trial.
So ordered.
We assume that, had the appeal not been withdrawn, the judge who heard the case at the first tier would have recused himself and a different judge would have presided at the jury of six trial.
Those included: that the defendant may participate in the selection of the jury; that the verdict of the jury must be unanimous; that the jury decide guilt or innocence while the judge makes rulings of law in the course
Had the judge at the second tier been other than the judge who sat at the first tier, he would have lacked power to revise and revoke the original sentence, and would have been bound to order the defendants to comply with the original sentence or to reschedule the matter so that it would come before the judge who imposed the original sentence. See Standards for Trials and Probable Cause Hearings of the District Court Department, supra § 2:04.