COMMONWEALTH vs. HERBERT H. TIRRELL.
Supreme Judicial Court of Massachusetts
February 11, 1981.
382 Mass. 502
Franklin. October 9, 1980. — February 11, 1981. Present: HENNESSEY, C.J., QUIRICO, BRAUCHER, KAPLAN, WILKINS, LIACOS, & ABRAMS, JJ.
The principles set forth in North Carolina v. Pearce, 395 U.S. 711 (1969), and Blackledge v. Perry, 417 U.S. 21 (1974), are inapposite to the plea bargaining process. [506-510]
Evidence that a defendant had entered pleas of guilty after learning that the prosecutor had decided to recommend a more severe sentence if the defendant went to trial than the one he had originally agreed to recommend did not support a claim that the pleas were involuntary. [510-511]
The fact that a prosecutor had made a “firm” agreement to recommend a certain sentence whether the defendant pleaded guilty or went to trial and that, after learning the defendant would stand trial, he stated that he would not recommend that sentence but a longer one did not entitle the defendant to withdraw his subsequent pleas of guilty where the recommendation made on the pleas was in accordance with the original agreement, and the sentences imposed were consistent with the agreement. [511-512] KAPLAN, J., dissenting.
INDICTMENTS found and returned in the Superior Court Department on January 30, 1979.
A motion for leave to withdraw pleas of guilty was heard by Cross, J.
After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.
Stephen R. Kaplan, Assistant District Attorney, for the Commonwealth.
Thomas T. Merrigan for the defendant.
Peter W. Agnes, Jr., Assistant District Attorney, for the Attorney General & various district attorneys, amici curiae, submitted a brief.
The defendant pleaded guilty on May 22, 1979, to three indictments charging wilful burning of a dwelling house,
The record shows that defense counsel and the prosecution negotiated the following plea bargain: on May 4, the Commonwealth made a “firm” offer to recommend a sentence to yield three years’ actual incarceration time at M.C.I. Concord whether the defendant entered a plea or went to trial. After the defendant brought a motion for change of venue and a motion for examination to determine his capacity to form criminal intent,2 the prosecutor informed the defendant‘s attorney, on May 11, that the original recommendation promised would not be made, rather the recommendation was changed to a six- to ten-year sentence at M.C.I. Walpole.3 The prosecutor explained that he based his original offer on the belief that the defendant would not stand trial, given the strength of the Commonwealth‘s case. He also explained that, upon reconsideration
On May 22, 1979, the defendant did not go forward with a scheduled hearing on his motion to suppress, but decided to change his plea. Before the change, the defendant‘s attorney obtained the prosecutor‘s assurance that the Commonwealth would make the recommendation originally promised if the defendant now pleaded guilty. At the hearing on the plea, the defendant responded in the negative when asked whether he had been in any way induced or threatened to plead guilty, and defense counsel endorsed the Commonwealth‘s sentence recommendation. The plea was taken in accordance with the procedures set forth in
The parties make these arguments on appeal. The defendant alleges that he was entitled to disclosure of an agreement that the Commonwealth would not indict Longo for arson, and that the prosecution would assent to Longo‘s pending motion to revise his sentence in exchange for Longo‘s testimony against the defendant. The defendant further claims involuntariness in his plea, which he asserts resulted from prosecutorial vindictiveness and coercion.
1. Prosecutorial Vindictiveness and Due Process of Law. The essence of the dispute between the Commonwealth and the defendant, which divided the Appeals Court as well,5 is whether, as a matter of Federal constitutional law, the mandate of North Carolina v. Pearce, 395 U.S. 711 (1969), and Blackledge v. Perry, 417 U.S. 21 (1974), applies to the facts of the case at bar. Alternatively, the question may be put as to whether the facts of this case are governed by the principles set forth in Bordenkircher v. Hayes, 434 U.S. 357 (1978). The majority opinion of the Appeals Court in Commonwealth v. Tirrell, supra, states, inter alia: “We hold that the Pearce rule applies to the plea bargaining process. . . .” Id. at 131. “We hold only that an unjustified change in the [prosecutor‘s] recommendation is vindictive and it serves no legitimate purpose.” Id. at 132-133. “Therefore, justification for the increased recommendation after the defendant‘s failure to accept the original recommendation6 must affirmatively appear on the record, and
In considering whether the Appeals Court properly applied Pearce and Perry to this case, we note at the outset that neither case involved plea bargaining. Pearce involved the question whether, after a successful appeal by a defendant, a harsher sentence may be imposed on conviction resulting from a retrial. It also involved action by a judge, not a prosecutor. In Pearce the trial judge imposed a more severe sentence upon retrial after appeal. The Court found that the judge acted in retaliation for the defendant‘s exercising his right to appeal. 395 U.S. at 726. The present facts in no way suggest an abuse of the judge‘s sentencing power. On the same basis we reject Tirrell‘s reliance on Letters v. Commonwealth, 346 Mass. 403 (1963), in which we found that the trial judge improperly coerced a guilty plea by threatening a more severe sentence after trial. Id. at 408.
In Blackledge v. Perry, supra, the Court faulted the prosecutor who obtained a felony indictment against the defendant, upon the defendant‘s claim of trial de novo following conviction of a misdemeanor. The felony indictment was based on the same incident which gave rise to the misdemeanor complaint. Id. at 28-29. Although the facts of Perry better resemble those under review, we find a substantive difference between the prosecutor‘s augmenting the charges to which the defendant was subject and his changing only the offer to recommend sentence for an unaltered charge. Although a plea of guilty to the felony indictment was set aside in Perry, there was no plea of guilty at issue in Pearce. We view these cases, therefore, neither as plea bargaining cases, nor as cases which essentially deal with the problem of the voluntariness of pleas. Instead we view
with the original agreement, giving him the right to go to trial and retain the original sentence recommendation promised.
In the latter instance, we think it significant that the Court concluded that due process precluded the bringing of the enhanced charge. “The ‘practical result’ dictated by the Due Process Clause in this case is that North Carolina simply could not permissibly require Perry to answer to the felony charge.” Perry, supra at 31.7 Thus, we distil from these cases that the essential underpinnings of their decision is not found in the ascertainment of the voluntariness of a plea of guilty, but in a rule deterring abuse of the criminal process by “vindictive” behavior by the judges or prosecutors.8
Our conclusion that Pearce and Perry are based on a different rationale from that involved when a court is seeking to ascertain whether a guilty plea was voluntarily made and are inapposite to the plea bargaining process is reinforced by Bordenkircher v. Hayes, 434 U.S. 357 (1978). In Bordenkircher, the defendant refused to plead guilty to a felony charge with a potential punishment of two to ten years in prison in exchange for a prosecutorial recommendation of
“The Court has emphasized that the due process violation in cases such as Pearce and Perry lay not in the possibility that a defendant might be deterred from the exercise of a legal right . . . but rather in the danger that the State might be retaliating against the accused for lawfully attacking his conviction. . . . But in the ‘give-and-take’ of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution‘s offer. . . . Indeed, acceptance of the basic legitimacy of plea bargaining necessarily implies rejection of any notion that a guilty plea is involuntary in a constitutional sense simply because it is the end result of the bargaining process. By hypothesis, the plea may have been induced by promises of a recommendation of a lenient sentence or a reduction of charges, and thus by fear of the possibility of a greater penalty upon conviction after a trial” (citations omitted). Bordenkircher v. Hayes, supra at 363. Cf. Brady v. United States, 397 U.S. 742 (1970); Commonwealth v. Leate, 367 Mass. 689 (1975). See III ABA Standards for Criminal Justice, Pleas of Guilty 14-3.1 (1980).
We conclude, therefore, that the principles of Pearce and Perry do not apply to the facts of this case. The defendant claims, however, his guilty pleas were coerced by the
2. The Voluntariness of Defendant‘s Pleas.
While acknowledging the use and effectiveness of plea bargaining, the United States Supreme Court has required demonstration of the voluntariness of a guilty plea. Boykin v. Alabama, 395 U.S. 238, 243-244 (1969) (trial judge must establish record of voluntariness of guilty plea). See Parker v. North Carolina, 397 U.S. 790, 796-798 (1970); McMann v. Richardson, 397 U.S. 759, 766-767 (1970); Brady v. United States, 397 U.S. 742, 748 (1970). In expounding the parameters of voluntariness, however, neither this court nor the Supreme Court has required total absence of psychological or emotional pressure. In any plea bargaining situation the defendant is necessarily put to a difficult choice — the risk of a more serious sentence after trial and conviction against the probabilities of the trial judge‘s accepting the prosecutor‘s recommended leniency. The defendant‘s fond hopes for acquittal must be tempered by his understanding of the strength of the case against him, his prior record, and the completely unknowable reaction of the trier of fact. See Commonwealth v. Leate, 367 Mass. 689, 694 (1975). Without some showing of peculiar susceptibility, which rendered the defendant “so gripped by fear of the . . penalty or hope of leniency that he . . . could not . . . rationally weigh the advantages of going to trial against the advantages of pleading guilty,” Brady, supra at 750, we cannot say that the pressure of the decision per se destroys voluntariness. Contrast Pate v. Robinson, 383 U.S. 375, 385-386 (1966) (record of irrational conduct required hearing on defendant‘s incompetency to stand trial).
Here defense counsel depicts the defendant as so frightened that he impulsively decided to change his plea in “impromptu reaction to the prosecutor‘s threat of a Walpole sentence.” The record, however, does not support this claim.10 The bare representation of counsel as to Tirrell‘s
3. The Contract Aspect of the Plea.
The defendant argues that the “firm” agreement of the prosecution to recommend a sentence that would produce
counsel] I find no reason to change my findings or to reconsider my ruling.” Although failure to make specific findings appears to contravene
The judge‘s ultimate conclusion was based on three different hearings. The original hearing on Tirrell‘s change of plea was a model inquiry into the knowingness and voluntariness of the plea. As noted in the text, neither the defendant nor his counsel raised any suggestion of coercion at the time of the plea. After the second hearing, the judge made detailed findings regarding the prosecutor‘s alleged agreement with Longo. Because the same judge presided over all three hearings, we consider the entirety of this record in determining that there was ample evidence to support the judge‘s conclusion of voluntariness. Williams, supra at 225-226. See Commonwealth v. Mahnke, 368 Mass. 662, 689-691 (1975), cert. denied, 425 U.S. 959 (1976) (trial judge‘s conclusions of voluntariness based on oral testimony deserve deference); accord, Commonwealth v. Tabor, 376 Mass. 811, 822 (1978). Cf. Commonwealth v. McCarthy, 375 Mass. 409, 416 (1978) (remand for findings unnecessary where judge‘s reasons are clear from the record).
We agree with the defendant‘s argument that plea bargaining is often analogized to a contractual negotiation. See, e.g., Santobello v. New York, 404 U.S. 257, 262-263 (1971); Jones v. Estelle, 584 F.2d 687, 689 (5th Cir. 1978). On May 4, the Commonwealth made a “firm” offer.11 Whether the Commonwealth was contractually or honor bound at that point to abide by its offer depends on whether Tirrell acted in reliance on the prosecution‘s statement. See Santobello, supra at 262; Commonwealth v. Benton, 356 Mass. 447, 448 (1969). In Santobello and Benton, the defendant went forward with a guilty plea, only to find that the prosecutor had set different, harsher terms. Those cases are inapposite. On the record before us we find no similar detrimental reliance. The defendant did not change position to his detriment between the time the agreement was made and the guilty pleas entered. The recommendation made was in accordance with the original agreement. The sentences imposed were consistent with the agreement. Had the defendant gone to trial and, being convicted, received a more severe sentence as a result of an enhanced prosecutorial recommendation in violation of the “firm” agreement, we might well take a different view.
Having concluded that the trial judge was correct in finding that the pleas were not coerced, we are unable to perceive how the “contract” claim furthers the defendant‘s cause. The orders denying the defendant‘s motions are affirmed.
So ordered.
It seems to me that the defendant, after giving himself some time for reflection, should be allowed to withdraw the plea, if he is willing upon advice of counsel to take the risks to himself that that may entail.
The Commonwealth is in the wrong for having reneged on its commitment or having threatened to do so. In such a situation I would not speculate about whether the defendant was actually hurt — whether he would in fact have gone to trial if no breach or threatened breach of the commitment had occurred, and whether, had he gone to trial, he might have succeeded on the merits.
With respect, I believe the substance of the case has slipped through the mesh of the analytics of the court‘s opinion. It is only of mild interest whether any constitutional right may have been implicated. This dissent need not rest on the Constitution. It merely insists that the Commonwealth take care to behave itself.
I should add that, despite vehement argument by the Commonwealth to the contrary, I do not perceive how the view I have expressed would interfere with the fair conduct of plea bargaining or prosecution.