449 Mass. 392 | Mass. | 2007
The defendant, Gregory Pelletier, was charged with operating a motor vehicle while under the influence of intoxicating liquor, third offense, pursuant to G. L. c. 90, § 24 (1) (a) (1). He pleaded guilty to the underlying charge of operating while under the influence, but, as we shall explain, no plea was taken on the subsequent offense portion of the charge and he was sentenced as a first-time offender. The Commonwealth, asserting that it had been denied the opportunity to present evidence as to the prior offenses pursuant to G. L. c. 278, § 11 A, objected and filed a motion to reconsider. That motion was denied after a hear
Factual and procedural background. A complaint issued against the defendant on July 1, 1994, charging him with operating while under the influence, third offense, in violation of G. L. c. 90, § 24; operating after suspension of a license for drunk driving in violation of G. L. c. 90, § 23; and failing to drive within marked lanes, in violation of G. L. c. 89, § 4A (a civil infraction included in the complaint for procedural purposes only).
At the outset of the plea hearing the judge noted that the Commonwealth was seeking a disposition in accordance with a
The judge then inquired of the defendant whether he had committed the acts described by the Commonwealth. After the defendant responded yes, the judge stated, “There’s just been an admission to an GUI one, there were no facts read into the record that I recall about any subsequents so the admission stands and that’s what we have.” The prosecutor interjected that the Commonwealth was prepared to offer additional facts to support the charge of third offense. The judge, however, refused to hear any additional facts, stating that the Commonwealth had already had its chance to state what it was capable of proving but did not do so. The judge reiterated that there had been an admission only to so much of the complaint as charged operating while under the influence, first offense, and sentenced the defendant as a first-time offender.
The Commonwealth objected and filed a motion to reconsider the disposition, seeking to vacate the sentence as illegally imposed. The judge denied the Commonwealth’s motion after a hearing, and the Commonwealth filed a notice of appeal.
Discussion. We review the single justice’s decision for abuse of discretion or other clear error of law. Youngworth v. Commonwealth, 436 Mass. 608, 611 (2002). As an initial matter, the defendant argues that the single justice should have dismissed the Commonwealth’s “appeal” because it was untimely. The case was before the single justice as a request for relief pursuant to G. L. c. 211, § 3, however, not as an appeal as a matter of right from any action taken in the trial court.
Furthermore, it is uncertain whether the Commonwealth could have even proceeded as a matter of right with an appeal under G. L. c. 278, § 28E, and Mass. R. Crim. R 15 (a) (1), as appearing in 422 Mass. 1501 (1996), in these circumstances. Even if we were to view the judge’s ruling as a “dismissal” of the subsequent offense portion of the complaint, a dubious proposition on this record, the subsequent offense portion of the charge against a defendant does not create an independent crime; rather,
Under G. L. c. 278, § 11A, a defendant “charged with a crime for which more severe punishment is provided for second and subsequent offenses” who pleads guilty or is found guilty after trial “shall be further inquired of for a plea of guilty or not guilty to that portion of the complaint or indictment alleging that the crime charged is a second or subsequent offense” before sentence is imposed. If the defendant pleads not guilty, he is “entitled to a trial by jury of the issue of conviction of a prior offense . . . [or] may waive trial by jury.” Where a defendant has been found guilty by a jury, the judge may, in his discretion, hold the same jury to determine the issue of conviction of prior offenses or may empanel a new jury. The statute, in other words, requires a defendant to be tried in a two-step, bifurcated procedure: “first, on the underlying substantive crime and, then, in a separate proceeding, on that component of the charge referring to the crime as a second or subsequent offense.” Commonwealth v. Miranda, 441 Mass. 783, 788 (2004). See Commonwealth v. Koney, 421 Mass. 295, 301-302 (1995); Commonwealth v. Jarvis, 68 Mass. App. Ct. 538, 540 (2007). A two-step, bifurcated proceeding must also take place when a defendant pleads guilty to the underlying offense, the difference being that the first step is a plea hearing, rather than a trial.
Whether the second step is a trial or a plea hearing turns, of course, on how the defendant pleads to the subsequent offense
Before accepting a plea, a judge must satisfy himself that the defendant’s plea is voluntary and that the defendant understands the nature of the charges. See Commonwealth v. Quinones, 414 Mass. 423, 431 (1993). A “plea is valid only when the defendant offers it voluntarily, with sufficient awareness of the relevant circumstances . . . and with the advice of competent counsel” (citations omitted). Commonwealth v. Fernandes, 390 Mass. 714, 715-716 (1984). Toward this end, the judge typically begins the colloquy with an extensive set of preliminary questions designed to inform the defendant of his rights and to begin to “probe ... the defendant’s mind,” id. at 716, quoting Commonwealth v. Foster, 368 Mass. 100, 107 (1975), as to his understanding of the circumstances and the consequences of a guilty plea. See K.B. Smith, Criminal Practice and Procedure §§ 1235-1242 (2d ed. 1983). Then, after the prosecutor has had an opportunity to set forth the facts relevant to the charges against the defendant, the judge will inquire of the defendant whether he committed the acts described by the prosecutor. When satisfied that the defendant is entering his plea voluntarily, with an understanding of its consequences, and that sufficient facts warrant a finding of guilty on the underlying offense, the plea on the underlying offense can be accepted (although the sentence will not be imposed at that point).
What follows thereafter, in the second step of the bifurcated proceeding, will be dictated by the defendant’s plea on the subsequent offense portion of the charge. Where a defendant is pleading guilty, we do not read the statute as requiring that a judge conduct an entirely new plea colloquy during the second
In those cases where a defendant pleads guilty to the underlying offense but not guilty to the subsequent offense portion of the charge, the plea colloquy on the underlying offense must be followed by a trial. Where, as apparently was the case here, a defendant is willing to admit to some but not all of the alleged prior offenses, the defendant could simplify matters at trial by stipulating to certain offenses. With or without such a stipulation, however, the Commonwealth bears the burden of proving the prior offenses charged.
This procedure was not followed here. After conducting the initial questioning, the judge asked the prosecutor to present the facts. The prosecutor set forth only those facts relevant to the underlying offense, apparently believing that after the defendant entered a plea on that offense, the second step of the bifurcated procedure would take place. In other words, and as the statute requires, the prosecutor apparently expected the subsequent offense portion of the charge to be handled separately, after the defendant pleaded guilty to the underlying offense. The statute commands such a bifurcated proceeding.
We agree with the single justice that the plea judge’s actions
Conclusion. The judgment of the single justice, remanding the matter to the District Court for further proceedings on the subsequent offense portion of the complaint, is therefore affirmed.
So ordered.
The charge of operating a motor vehicle after suspension of license and the civil citation are not at issue in this appeal.
The Commonwealth asserts that on the same day as the plea hearing, February 24, 2005, it delivered a motion to reconsider to the judge’s lobby and also left a telephone message for defense counsel regarding the motion. The docket does not reflect the filing of that motion. On April 27, 2005, the Commonwealth filed an amended motion to reconsider, after having received a transcript of the plea hearing. That motion was docketed and a hearing was held on the motion on December 2, 2005, before the same judge who held the plea hearing. When
Although the Commonwealth did file a notice of appeal after the denial of its motion for reconsideration, the Commonwealth suggests that it did so only in an abundance of caution. That appeal is not what brought the parties before the single justice.
This would not, of course, be the case for a defendant who had gone to trial on the underlying offense and was pleading guilty to the subsequent offense portion of the charge against him. There, a full colloquy would be required.