Commonwealth v. Tirrell

Ct. 125 App. v. Tirrell. Commonwealth H. Tirrell. vs. Herbert 1979. 1980. 14, 30, Franklin. December June & Present: Armstrong, Perretta, Dreben, JJ. Plea, Criminal, and

Practice, between Agreement New Law, Agreement Due between defendant. Process of Attorney. District defendant. guilty pleas, on a defendant’s motion withdraw

In a proceeding the Common- finding to warrant a there was sufficient evidence arrangement leniency for with had not made an undisclosed wealth the defendant. principal against witness anticipated [126-127] the Commonwealth’s had informed a Where a a firm one be the same recommendation was and would sentence and, pleaded trial or after guilty, proceeded whether trial, the pros- defendant intended to аpparent it became that the recom- then informed the defendant Commonwealth’s ecutor substantially than the recom- mendation after a trial would be harsher pleas guilty originally promised, mendation vindictiveness. by prosecutorial because motivated involuntary J., dissenting. Armstrong, [127-137] returned in the found and Superior Indictments 30, 1979. January

Department was heard A motion leave withdraw Cross, J. T. for the defendant. Thomas Merrigan District Attorney (Edward R. Assistant Kaplan, Stephen Commonwealth. with for the him) F. Berlin 22, 1979, On the defendant pleaded J. Perretta, burn- malicious him with the to indictments charging 1, house, 266, c. larceny G. L. of a dwelling § G. L. c. breaking entering building, §§ G. L. to commit a felony, with the intent in the nighttime in accordance sentence 16. imposed c. § Two Commonwealth. the recommendation- later the defendant to withdraw days sought guilty pleas on the time basis at the of his he was unaware of pleas the fact that the Commonwealth had made or in- promises ducements an him. anticipated witness principal against After motion, an on the found evidentiary hearing judge that the had no Commonwealth made or induce- promise witness, ment to this denied the motion to withdraw A later pleas. week the defendant filed a motion for reconsideration, been involun- alleging because motivated tary vindictiveness in by prosecutorial of the form an increased sentence recommendation after trial if the defendant should elect to trial.1 The denied this motion after of judge coun- hearing arguments sel. We hold that the intended increase of the prosecutor’s sentence recommendation was and constituted unjustified vindictiveness, and order prosecutorial we reverse the deny- his motion vacate. we Because reverse the decision of on issue judge of the increase of the sentence recommenda- tion, we deal with the issue only briefly alleged agree- ment between the Commonwealth the defendant’s ac- held a full on Tir- complice. judge evidentiary hearing rell’s claim an undisclosed for arrangement leniency by the Commonwealth for his exchange accomplice Our defendant. review of tran- testimony against of this Commonwealth’s script responses hearing motions lead us to the conclusion pretrial that the fact on this issue were findings supported judge’s Commonwealth the evidence. See 9 Buonopane, 654 did err in App. had not Commonwealth made any concluding prom- ise or to the relative to inducement defendant’s accomplice with which he or in connection offenses was charged with its assent his motion to reduce his sentence. See this the face of the Although allegation was set out on motion, the eviden argued by first it was asserted and defense counsel at tiary held on motion. hearing the first McManus, 554 F.2d Mastrian cert. de (8th Cir.), Wood, sub nom. nied Mastrian U.S. cited approval Haywood, 755, 759 n.4 (“mere general leniency (1979) expectation need be revealed absent jury express implied The Commonwealths assent promise”). accomplices motion revise his sentence was based its sentence rec ommendation at the time accomplice’s pleas York, him. See Santobello New charges against 1141, 1143 U.S. United States v. F.2d (1971); Ewing, of these sentence 1973) (5th (“both proceedings [original and motion to reduce integral parts sentencing it] in this case”). 4, 1979, defendant’s second contention that on the told defense counsel that the Commonwealth’s sentence recommendation pleas would be one M.C.I., that would result in his incarсeration Concord, for three This would be rec- years. accomplished by that the defendant be sentenced on the ommending various in- dictments for an When de- aggregate years. twenty-five fense counsel asked the what recommendation would be if the defendant were to to trial and found the guilty, the prosecutor replied recommendation was a “firm” one. It would be the same if the defendant to trial or if proceeded he should The defendant plead guilty. when be- alleges came on apparent 8 that the defendant prosecutor May trial, intended to the informed defense coun- that, sel if the defendant were to be the found Com- guilty, monwealth’s recommendation the would be that defendant be M.C.I., incarcerated at of sixto ten a term Walpole, years. The defendant asserts that this threat of an increased recom- mendation resulted in his He that his pleas. alleges were as were the involuntary, they product fear instilled in him prosecutor’s actions. made no judge fact on this issue. findings Notwith- motions, labels attached to

standing these they impli- motions for a new citly see Penrose, Commonwealth v. 677, 363 Mass. 681 Huot, (1973); Commonwealth 380 10 Mass. App.

Commonwealth o. Tirrell. 403, and factual findings Mass. (1980), Commonwealth, been made. See Earl v. claim should have 378 Mass. Mass.R.Crim.P. Mass. (1969); 30(b), McHoul Common July 1979). Compare (effective wealth, 365 Mass. Commonwealth (1974), however, Porter, not, Ct. We need 9 Mass. App. (1980). if we remand this case for because even findings not, assertions, factual they truth all law, for an increased rec matter of constitute justification its Additionally, urges ommendation. all imported finding brief that judge’s general finding his determination ‍​‌​​​​‌​​‌‌​‌‌​​‌​‌​​‌​​‌‌​​​‌‌​‌​​‌​​‌​‌​‌​‌​‌‌‍which the facts necessary support evidence, view of conclusive if reasonable any supported by Co., P. O’Connell Co. Cas. Maryland . J evi 232, 234 could give legitimately where there was statements counsel dentiary weight v. Har neither nor as here. Harper contradiction objection, Boumil, 4 85, 88 Abdallah (1952). per, them ar- as the during We recite facts prosecutor alleged reconsider. on the motion vacate and motion guments office had re- of thе district He related that staff attorney’s at its outset and that it had been the defendant’s case viewed should be incar- of the office that the defendant the consensus of four of correction for a minimum years. cerated in a house consensus, he of this had that spite The stated recommendation” of at three incarceration years “firm made no that “there he believed was way Concord because to to His was trial.” belief this man go world that going that there were thirty-five pending charg- facts based upon had that the Commonwealth a the defendant and es against to that his explained judge case. strong based 4 had been recommendation May and to that if the defendаnt were willing plead fact rehabilitation, he prosecutor) a (the demonstrate sense recommenda- office for a lower would be willing fight own in my recommendation “relying tion. the firm He gave he that thinking would plead guilty, mind Defendant that Mass. u. Tirrell. would in his attitude.” The demonstrate this change prosecu- on tor stated when defense counsel filed motion that May of venue and a motion for an examination of a change he defendant to G. L. c. had become an- pursuant § viewed He because he those motions as demand- gry dilatory. ed that the motions be heard that were denied they day, however, on 8.2 He that his had May represented, anger Rather, to do with the recommendation. increased nothing it became that would apparent go [the “[w]hen defendant] I have He conscience reviewed began problems.” and had a with his discussion “posture” lengthy office, after which was determined that first staff recom- mendation should enforced.3 He advised defense counsel Commonwealth’s after a May recommendation trial and verdict of ten would be term six to years On were in court Walpole. parties prepared forward on the filed and scheduled motion to previously sup- when the defendant indicated that wished to press, plead guilty.4

Defense stated in counsel his affidavit in his mo- support tion to reconsider that on the 22 the defend- morning May ant advised him that “hе was scared to stand trial and risk a sentence,” and that the Walpole “notwith- pleaded standing disapproval Defense coun- misgivings.” [counsel’s] sel stated to the defendant would not listen his advice because “he didn’t know what was to be just going 2The Commonwealth states its brief that the allowance of either of these “pushed motions would have sitting” case off the there have delay been several months. noted, prosecutor, represented he told defendant that the “firm,” year

three Concord recommendation was and the record does not re recommendation, flect that the staff’s original years’ a minimum of four in correction, carceration in a house of evеr been communicated defense counsel or the defendant. trial, The increased only recommendation related to sentence after was not tied to the suppress. defendant’s motion to When the defendant of that, fered his of guilty, judge advised him if the judge could not ac recommendation, cept the Commonwealth’s sentence the defendant would pleas. allowed withdraw his guilty he exercise should con-

the outcome should his right total, there forward, inasmuch as had been such a tinue ex- drastic and substantial without any unexplainable, change it.” ternal for justification

The defendant the increase in recommenda- argues because it tion was the result of vindictiveness prosecutorial the exercise of his to trial and violated right right penalized Pearce, 395 to due See North Carolina v. U.S. law. process U.S. (1969); Blackledge Perry, (1974). recom- Commonwealth argues increasing it was “the mendation was within permissible ‘give-and- and that defendant was “free take’ plea bargaining” offer” of 11. Bor- prosecution’s reject 434 U.S. Common- denkircher Hayes, (1978); 243, 246 wealth LeRoy, 724-726, holds North Carolina v. supra, sentence reconviction a success- that a harsher upon following the due clause of Four- ful would violate process appeal if it Constitution teenth Amendment to United States for the Such judi- as a successful appeal. imposed punishment defend- cial vindictiveness causes direct penalized injury chill exercise ant and places upon impermissibly who convicted defendants refrain all right appeal this out fear of retaliation sen- exercising law, therefore, not de- Due only tencing judge. be free of vindic- a sentence retrial mands that imposed upon tiveness; defendants be free of that all convicted ap- requires on the of a sentenc- motivation part of a retaliatory prehension motiva- To absence of this improper guarantee ing judge. harsher tion, that when a sen- imposes Pearce requires retrial, his reasons for tence a defendant after his doing the funda- rests on must holding so affirmatively appеar. for choos- that a cannot be mental principle person penalized 724. See also to exercise constitutional Id. at rights. Chaf- n.20 Borden- 412 U.S. 32-33 (1973); v. Stynchcombe, fin kircher, supra, 434 U.S. at 363. Blackledge Perry, supra, vin- prosecutorial extended Pearce afford protection against that reindictment its dictiveness or by holding appearance 10 131 Mass. App. a more offense a serious exercise defendant of following his de on trial novo offense right appeal violate due Protection vin- similarly process. against dictiveness not been limited to the has exercise the statu- de or trial novo other forms of See Unit- tory right appeal. Jones, 802, ed 587 States F.2d 805 United (5th 1979);5 Thomas, 593 615, States F.2d 624 n.28 Cir. 1979). (5th We hold Pearce rule applies plea bargain- to ing process, recognized beneficial process “mutually both the defendant and the State.” Corbitt New Jersey, 212, 439 222 U.S. States, also v. United (1978). Brady 742, 397 York, U.S. 751-752 Santobello v. New 404 (1970); 257, U.S. 260-261 Allison, 431 U.S. (1971); Blackledge 63, ;6 71 Discretion, Prosecutorial Plea (1977) Bargaining and the Court’s Supreme Bordenkircher v. Opinion 269, L. Hastings Const. 287-292 Neme- Hayes, Q. (1979); roon, Coercive L. Minn. Rev. 715-719 Sentencing, Plea under circumstances that bargaining proceeds to a defendant difficult put choices which have been “up- held as an inevitable attribute to any legitimate system tolerates encourages negotiation pleas.” 412 U.S. Stynchcombe, (1973), citing Chaffin Santobello While this can be Brady. cеrtainly used “to persuade forgo right plead Bordenkircher, not guilty,” Common- wealth v. LeRoy, cannot 5In pleaded defendant not to an indictment and a short Jones time the prosecutor later secured additional indictments. The defendant sought to dismiss the subsequent indictments in basis additional dictments could be used to chill a right plead defendant’s exercise of the guilty. motion was denied because could show defendant prosecutorial vindictiveness. The knew in defendant plead tended to before secured even the Fur first indictment. ther, additional indictments secured on the basis of evidence which the subsequent discovered the first indictment. principles While contract employed are sometimes resolution issues, Santobello, supra, those plea bargaining do not override principles dispose penalized constitutional claim that one has been for exercis supra. trial. 10 Mass. v. Tirrell. method retaliation used as punitive of- the recommendation because he fails simply increase in a sentence fered for his An plea. exchange is the exer- a factor recommendation based such upon in it the tion of inherent is imposi- pressure plea bargaining; the exercise of his tion of a penalty upon in- Due of law trial.7 process prohibits prosecutor be- the sentence recommendation solely creasing and it intends to requires cause defendant made, ‍​‌​​​​‌​​‌‌​‌‌​​‌​‌​​‌​​‌‌​​​‌‌​‌​​‌​​‌​‌​‌​‌​‌‌‍an recommendation is prose- that when increased that all This is so cutor’s reasons must affirmatively appear. free with a crime will be appre- defendants charged on the hension of such a motivation retaliatory part Pearce, elect to trial. should they 725. U.S. at must do intimate that the Commonwealth engage

We defendant, with a see Commonwealth plea bargaining 599, nor do we 372 Mass. imply Coyne, violated of the Fourteenth Amendment is due clause sets at the when outset prosecutor, plea bargaining, Bordenkircher, 434 U.S. forth harsh alternatives. dissent- id. at n.2. J., 360-364. 370-371 Compare (Powell, when a be “actualized” These harsh alternatives may ing). Gerard, withdrawn, see Stаtes is United plea be in- F.2d they may 1305-1306 (9th 1974), defendant’s conduct creased or withdrawn when the justi- un- hold that an U.S. at 726. We only fies it. is vindictive in the recommendation justified change n.8, type this of conduct as did not view 7Brady, 397 U.S. at 751 no reference to the situa “We here make process. inherent to the pressure both, their deliberately employ judge, or or tion where particular to induce a charging sentencing powers prosecu there is no claim that Brady’s In case guilty. tender a by the evidence justified on a prosecution charge threatened tor if convicted Brady with a harsher sentence the trial threatened See also Letters plead guilty.” him to after trial order to induce Commonwealth, Mass. 403 serves no See note “As legitimate was purpose.8 infra. John, said 569-570 Commonwealth St. [1899], such are made by ‘When promises public prose- cutor or will court see due authority, them, and that the regard faith has paid public been him is duly kept. pledged highest of ethics should be the standard of the degree sovereign which should serve as to all others. The courts example have enforce standard.” duty Benton, 448-449 (1969). Commonwealth’s attempt Bordenkircher rely upon 359-360, fails here. In Bordenkircher, 434 U.S. at focused the facts that the defendant told at the outset of the plea negotiations what choices and the of each and that his elec consequences tion to to trial on “led his indictment” the more serious offense, as he had been told it would. In just out setting these the facts, Court invited without comparison, endorse ment, of in the United States rel. holdings ex Williams v. Mc Mann, F.2d Cir. and (2d United States v. 1970), 534 F.2d 1367 Ruesga-Martinez, Cir. Bordenkir (9th 1976). cher, 434 U.S. at 360 n.5. These cases were decided supra, on the basis whether there was a in the justified change in to the prosecutor’s position offense to respect be charged. The of events in the case “a sequence present created sig- nificant that discretion possibility prosecutor’s] [the legitimate is clear that the purposes bargaining 8“[I]t are not if prosecutor served powers abuses his order to an unwilling coerce defendant into foregoing constitutional trial.” Hayes Cowan, 547 F.2d 44 (6th 1976), Cir. rеversed sub nom. Bordenkir cher, below, supra. Bordenkircher, In the reversing court statement; the rather, Court did not take issue with this it concluded no power abuse of had “The occurred. ultimate conclusion of the of Appeals thus seems to been have that a acts vindic tively and in violation of due of law whenever charging deci sion is influenced what he hopes gain of plea bargaining course negotiations.” As is from opinion, clear our we attribute the different results Hayes Bordenkircher to the emphasis Supreme Court placed upon the fact options defendant was advised of his the outset. supra, See also Brady, 397 U.S. at 751 n.8 (see supra). note Tirrell.

Commonwealth v. exercised with a vindictive motive havе been purpose.” F.2d at 1369. Lovett v. But- See also Ruesga-Martinez, Therefore, terworth, F.2d 1979).9 (1st the de- for the increased recommendation after justification must failure recommendation fendant’s original record, must “based on and it affirmatively appear information identifiable conduct upon concerning objective the time of after occurring part Pearce, 395 U.S. at 726. recommendation. original” his reasons twice represented he recommendation, each for the increased hearing in- for the offered the same and reason as only justification of defense counsel crease: the continued actions prepar- did not for him that the defendant trial demonstrated he based the rehabilitative attitude possess mistaken recommendation.10 his original does constitute certainty assessment guilty pleas his actions. The had spe- basis for acceptable defense that the recommendation advised counsel cifically if the defendant should exercise his right would not change now the defendant’s election cannot cite to trial as recommen- increasing justification Moreover, dation. prosecutor’s explanation more a return to recommendation was no than changed irrelevant, as there staff’s recommendation note in no for such a return. (We passing justification in a do view a minimum of four incarceration years we not ten at house correction as six years of comparable Walpole.) personal acted with prosecutor mean suggest 9We do not As used use the word “vindictiveness.” by animus to the defendant our justifica it is a term an absence of by supra, meaning the Court in 28; Walker, 417 U.S. Blackledge, Perry,

tion. Jackson 1978). (5th F.2d 142 n.3 his defendant’s allege perception The does not was cause of the increased deliberately dilatory 8 as motions of this, not Indeed, and we need specifically denies recommendation. as by regarded of motions filing consider whether a recommendation. increasing dilatory justification constitute could Mass. v. Tirrell. to indicate has power

aWhile of not guilty, the risks pleading recommendation sentence of that the use do not allow and Blackledge Perry Pearce will.11 Cf. Ruesga- risks at to redefine those power The 1370-1371. Martinez, ‍​‌​​​​‌​​‌‌​‌‌​​‌​‌​​‌​​‌‌​​​‌‌​‌​​‌​​‌​‌​‌​‌​‌‌‍only justification 534 F.2d at the defend- recommendation for the increased given ac- one. ant’s failure law, based therefore, matter of not, tion was Pearce. justification required 397 U.S. at relies

The Commonwealth upon Brady, Henderson, 411 U.S. 258 argue and Tollett v. virtue of his from relief by is precluded The essence do agree. We pleas.12 the constitutional infirmity prosecutor is that complaint culmin infected very process ial vindictiveness claim is within scope in the Such a ated pleas. n.8, Tollett, 411 U.S. at at 751 397 U.S. Brady, entered, may and intelligently voluntаrily (“A guilty plea, the defendant was advised not be vacated because poten to avoid prosecutors could seek are aware of fact that We offering plea bargaining process by problems tial Pearce However, prac the outset. such a harsh alternatives from unrealistically matter, would, with little choice but present defendants practical tice as a to the detriment process it would frustrate the Allison, 431 U.S. at 71: “Whatever Blackledge supra, all. As stated in world, guilty plea is that the in an ideal fact might be the situation components of this important are plea bargain and the often concomitant administered, they can justice system. Properly сriminal country’s pretrial extended incarcera The defendant avoids benefit all concerned. trial; speedy he gains the anxieties and uncertainties tion and case, prompt and a acknowledge guilt, the chance to of his disposition for rehabilitation. there realizing potential whatever start in public resources. The conserve vital and scarce Judges prosecutors offenses charged those with criminal posed by from the risks protected pro completion of criminal large awaiting on bail while who are at omitted.) ceedings.” (footnote Perry, to reach this issue required court was not 30-31, precluded by the due because the State was to answer to the requiring in the first instance clause See also Commonwealth pleaded guilty. to which felony charge Zion, (1971). conceivable every in constitutional abatement plea he might have to the and it waived charge”), itself. plea v. Allison, 431 U.S. at 71-83. The supra, Commonwealth has never contended that its actions did not indeed, produce pleas; its brief states pleas “were the product give-and-take negotiations” A permissible. “must be plea considered as voluntary for the if it present is the purpose own, guided reasonable advice of counsel, his his own knowledge what he done, has and a fair of the alterna- understanding tives.” Commonwealth Mass. Manning, (1975). Bolduc, 536-537 A induced plea thrоugh imposition penalty upon exercise to trial is the antithesis a voluntary plea its nature. guilty by If very plea negotiation a prosecutor can redefine at will the risks of then a defendant proceeding cannot have a fair of the alternatives to understanding his because plea will be they Moreover, subject inexplicable change. counsel cannot a defendant with guide reasonable advice in such a situation. a which rests Consequently, this distortion of the cannot be negotiation process volun- and the defendant should tary, have been allowed with- draw his pleas.

The Commonwealth defendant should argues not be allowed to withdraw because if he elects to to trial he be will immunized from receiving harsher sentence than that imposed upon guilty pleas by of Pearce. The implications Commonwealth contends that this will place be- superior position cause he was never that after a trial the guaranteed judge the Commonwealth’s sentence recommenda- tion. We do not Unlike a on the agree. hearing offering a trial guilty pleas, with far more informa- provides tion about the defendant and the crime “Pearce charged. was not written with a view to the mere protecting against that, once slate is possibility clean and the wiped prose- anew, cution a fresh sentence for some begins higher 10 Mass. App. v. Tirrell. for and the need flexibility

valid reason associated of a The possibility process. discretion sentencing Pearce, and accepted sentence recognized higher [in of the retrial concomitant as a legitimate 723] does Thus, Pearce 412 U.S. at 25. Chaffin, process.” defendant. It protection provides immunity provide vindictiveness, imposition against against Colten v. motives. Cf. in accordance with sentence proper Commonwealth, Gavin v. 407 U.S. 104 Kentucky, (1974); 367 Mass. 331 (1972). motion to withdraw

The order denying case is remanded Superior is reversed. The ‍​‌​​​​‌​​‌‌​‌‌​​‌​‌​​‌​​‌‌​​​‌‌​‌​​‌​​‌​‌​‌​‌​‌‌‍consistent with this opinion. Court further proceedings

So ordered. cher v. In Bor denkir Hayes, (dissenting). Armstrong,], a conten Court U.S. 357 Supreme rejected (1978), tion Carolina v. 395 U.S. that the North princiрle into the should be extended area plea negotia (1969), drew distinction between a defendant’s right tion. It involved in the Pearce conviction, from a which was appeal 417 U.S. 21 case and Blackledge Perry, defendant’s to insist on which Supreme right States, United 397 U.S. recently (see Brady of a more held could burdened by possibility [1970]) be the situation onerous sentence. “Whatever might the often world, ideal the fact is that guilty plea of this concomitant are components plea bargain important at Bordenkircher criminal system.” country’s justice Allison, 361-362, 431 U.S. quoting with the risk of a defendant “While confronting have a more severe clearly may ‘discouraging punishment the im effect on the assertion of his trial rights, — and difficult choices an inevitable’ those position [is] — ‘attribute of system permissible any legitimate tolerates and encourages negotiation pleas.’ Chaffin U.S. Stynchcombe, .... (1979)] [412 [T]his Court has necessarily accepted constitutionally legitimate simple reality interest bar table tois gaining persuade forgo Id. plead at 364. In guilty.” light Bordenkir decision, cher the seems me to be on majority unsound the ground of North applying principles Carolina Pearce and to a recom Blackledge Perry sentencing mendation a in the proposed by of prosecutor plea negotiation. seem to treat as the majority fact that pivotal

prosecutor to the sentence he changed position recommend if the defendant insisted on to trial.1 But going 1Unlessthe of change position justified by is new information coming prosecutor attention of the after the original proposal for a sentence recom mendation, the majority seem to hold that change is “vindic prompted by law, tiveness” as matter of fitting thus the case into the operative rubric of North Carolina v. Pearce and eliminating the need for an inquiry into the prosecutor’s actual motives. Doubtless judge may permit a trial and should a unfair, vindictive, defendant withdraw a guilty plea which was induced or unconscionable by prosecutor, behavior a but the record before us shows none of thеse. The prosecutor explained to the judge (this being explana tion from which the majority infer in the “vindictiveness” artificial sense in they employ the word) that he had offered the three-year recommen despite dation consensus his office that the given defendant should be time, years four of in-prison proposed that his recommendation was based on an erroneous surmise that the defendant has no of thought contesting guilt conscience-stricken; and that he was genuinely that when the defendant in might dicated he to trial filed what the prosecutor thought to be motions, dilatory “felt in good conscience that the original one”; recommendation in this case was not a fair that based on “the con attitude, record, sideration of the given that a substantial prior [defendant's him, the large number of offensesstill facing probation violation that was him, still facing the fact that in past he has served as many as ten months already in I jail, felt that the too really recommendation was lenient. I com municated all that information to May 11th of [the counsel] 1979. I have notes to that effect. I communicated that to him as soon my thereafter as I felt that in good conscience I could not stick recommendation, your Honor. I communicated to him forthrightly, openly, honestly expeditiously. That communication was made on 1979. I’d suggest that there could be no substantial reliancе what recommendation; soever on of the fact was [defendant privy to days prior that information for ten to that time that we walked into this courtroom days two ago.” v. Tirrell. of a position case also involved change the Bordenkircher held that nevertheless Court Supreme the prosecution;2 no application Carolina Pearce North principle in the context occurred because change position course, that settled, It negotiation. has the defendant after on his promise renege York, on it. New in reliance Santobello pleaded guilty nor neither case law But principles 404 U.S. 257 (1971). time. It before that bind the contract or equity is at indeed, where is a one-sided negotiation involved a Perry case and Both the Bordenkircher more Perry the defendant. In charges against returned change found after the defendant had been charge brought severe Superior appeal taken in District Court and had charge lesser novo; that North it was held where he would obtain a trial de charges, the more severe precluded bringing Carolina v. Pearce statutory right impermissibly that such action burdened that the told the defendant prosecutor In the case appeal. Bordenkircher charge prosecutor to the the plead guilty pending if he did not out brought; prosecutor more to be the later carried charges сause severe of on North Carolina Appeals, relying the threat. The Court in the like the decision strikingly majority’s held in a decision reasoned less severe prosecutor a obtains indictment present case “[w]hen a discre might permit, to him the time makes than the facts known at seek by are served tionary determination that the interests the state fail, Accordingly, plea negotiations if after charges more serious .... crime, strong a more serious charging he then an indictment procures charges the more serious only the reason for inference is created that circumstances, should be re the vindictiveness. Under these Cowan, 42, 44-45 (6th 547 F.2d his action.” quired justify Hayes 361 n.6. opinion, 434 U.S. at 1976), in the Bordenkircher quoted reversed, v. Pearce holding North Carolina Supreme Court dealing the Court was “In those cases Blackledge Perry inapplicable. who penalty upon a defendant imposition with the State’s unilateral — a his conviction to attack legal chosen to exercise in negotiation common give-and-take different from the ‘very situation defense, arguably which prosecution plea bargaining between at power.” Bordenkircher possess relatively equal bargaining Carolina, (1970) (opinion U.S. quoting Parker North Brennan, goes case fur present in the J.). opinion majority Ap than did the Court restricting ther in discretion case, binding was overturned Bordenkircher peals decisiоn which formally position by bringing to a taken only early stage position informally taken at an charge sentencing but also to a plea negotiation.

liberty time change position before any making but each plea, taken position prosecutor represents an irrevocable concession to the defendant. The all-but-in- evitable result of such a rule practical would be that will a harsh alternative to the put defendant at the outset and will not soften that position significantly; fewer will be consequence, plea struck, more cases bargains will be tried, and defendants who under the plead guilty law as now stands will be of the benefits of the deprived plea and will tend to receive more bargaining system severe States, sentences. See v. United Brady 752.3 Plea would doubtless have no bargaining an ideal place criminal but the justice and Bordenkircher system; Brady cases of our acknowledge dependence present system free and frank and the latter seems to me negotiation; to be a of North Carolina square holding principles v. Pearce and have no Perry application plea negotiation process.

There is further reason decision should judge’s not be motion, disturbed. The was, effect, a motion for a new raised that was not nothing known to the defendant and fully his counsel at time the Smith, defendant entered his Criminal guilty ‍​‌​​​​‌​​‌‌​‌‌​​‌​‌​​‌​​‌‌​​​‌‌​‌​​‌​​‌​‌​‌​‌​‌‌‍plea. Praсtice and Procedure It is well (1970). §§ settled that a defendant waive terminate a trial “may then elect pleading guilty, sample penalty Com- litigate preexisting legal nonjurisdictional questions.” Zion, monwealth v. “When a criminal defendant has admitted court solemnly open that he inis fact of the offense with which he is not thereafter raise claims charged, may independent to the of constitutional that oc- relating deprivation rights curred of the He at- prior entry guilty plea. only tack the character of the voluntary intelligent conceded, it Correspondingly, plead guilty must be some of those who will, trial, the present system under as a result of forced to be ac being quitted. 10 Mass. Tirrell. i>. from cоunsel he received the advice showing forth in the standards set within [McMann Henderson, Tollett

Richardson, 397 U.S. 759 (1970)].” context, in this 258, “Voluntary”, 411 U.S. (1973).4 more free from the influence potentially not mean does the defendant should if recommendation severe sentence 751; States, 397 U.S. v. United elect to go Brady that is more coercive than alleged proven and nothing case. instant set the action of refusing I would affirm aside guilty pleas. rule, but exception one recognized Court has Supreme “ proceedings very initiation here. That is where

inapplicable [t]he him deny operated . . . Superior against [the defendant] law,” 30-31. In that case Perry, due to a appeal following the defendant’s supra) prosecutor, note (see the District Court conviction at from his misdemeanor superior court facts. level, based the same felony indictment secured

Case Details

Case Name: Commonwealth v. Tirrell

Court Name: Massachusetts Appeals Court

Date Published: Jun 30, 1980

Citation: 406 N.E.2d 689

Court Abbreviation: Mass. App. Ct.