Com. v. Bolduc

• Decision Date: 28 June 1978
• Citation: 378 N.E.2d 661,375 Mass. 530
• Parties: COMMONWEALTH v. Francis T. BOLDUC. Suffolk
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 661

378 N.E.2d 661

375 Mass. 530

COMMONWEALTH v. Francis T. BOLDUC.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Sept. 13, 1977.

Decided June 28, 1978.

Daniel C. Mullane, Asst. Dist. Atty., for the Com.

P. J. Piscitelli, Brockton, for defendant.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN and WILKINS, JJ.

QUIRICO, Justice.

This is an appeal from the denial of a motion for a new trial, by which the defendant seeks to vacate the guilty pleas he entered in 1960 to thirty-four indictments for armed robbery and related crimes. The defendant contends that the pleas were made involuntarily and that he was denied his right to the effective assistance of counsel.

The findings of the judge who heard the motion for a new trial (motion judge) are summarized. On July 13, 1960, the defendant Francis T. Bolduc and two codefendants were arrested. The defendant at the time was an escapee from the Massachusetts Correctional Institution at Walpole where he had been serving a life sentence for murder in the second degree. After their arrest, the three men voluntarily admitted their participation in a series of armed robberies. Six episodes were involved, Bolduc having participated in all of them, one by himself, while each of the codefendants participated in three. Indictments were returned against them on August 2, 1960. Bolduc was charged in nineteen indictments with armed robbery, in four with confining or putting in fear, in two with assault and battery with a dangerous weapon, in one with breaking and entering in the nighttime, in five with possession of firearms, in one with assault with intent to murder, and in three with conspiracy.¹ Bolduc was arraigned on one charge on September 7, 1960, and pleaded not guilty. He was then removed from the Charles Street jail, where he had been incarcerated since his arrest, and returned to Massachusetts Correctional Institution at Walpole.

We conclude that the defendant's pleas of guilty must stand, but that the sentences imposed in consequence thereof are to be vacated and the cases remanded to the Superior Court for new sentencing.

Counsel for Bolduc was appointed on September 27, 1960. He was also appointed to represent the codefendants. During the next three weeks counsel prepared the case by interviewing the codefendants several times, and by obtaining as much information as possible from the police. He did not talk with Bolduc during this period.

A hearing was held before a judge of the Superior Court on October 18, 1960. The indictments were not read to the three defendants, nor does it appear that their reading was waived. Each of the two codefendants pleaded guilty to all charges. Bolduc pleaded not guilty. A recess was then requested by counsel. He gave as a reason that "(h)e (Bolduc) doesn't even know what . . . (the indictments) are."

Bolduc, his codefendants, and counsel were removed from the court room to a detention cell. Several of the indictments were mentioned to the defendant by counsel. The bulk of the discussion, however, appears to have been concerned with the wisdom of Bolduc's not guilty pleas. Counsel stressed to Bolduc that his pleas of not guilty would not benefit him, since he was already serving a life sentence, but that it might reduce the possibility that his codefendants would receive favorable sentences. Bolduc conferred with the codefendants and concluded that, if it would help them, he would plead guilty. The entire conference lasted approximately twenty minutes. On his return to the court room the defendant pleaded guilty to all the indictments against him except one that charging assault with intent to murder.

The guilty pleas were followed by the testimony of two police officers describing the crimes. Counsel then delivered a disposition argument for his clients. He asked for mercy for all three of his clients. He stated, however, that Bolduc's position was probably hopeless since he was already serving a life sentence. He therefore concentrated on the plight of the codefendants, arguing that Bolduc was the instigator of the criminal activity, and that they, the codefendants, had participated only because they felt honor-bound to help an escapee who had no one else to look to for aid. ² He repeated the theme of this argument prior to sentencing on November 14, 1960, when he asked the judge not to deal more harshly with the codefendants because of their association with Bolduc than he otherwise would.³ Bolduc was sentenced to the maximum terms of life imprisonment on the armed robbery counts, with lesser sentences on the other charges. ⁴ The life sentences given to Bolduc were not to begin running until after the expiration of the life sentence that he was serving before his escape.

Bolduc requested a review of his sentences in an appeal to the Appellate Division of the Superior Court under G.L. c. 278, § 28B. The appeal was dismissed and it does not appear that any further appeal was taken at that time. ⁵ In 1973 Bolduc, through his present appellate counsel, petitioned this court for an order vacating his guilty pleas. A single justice transferred the matter to the Superior Court for treatment as a motion for a new trial. After a series of hearings the judge denied the motion. On review, the Appeals Court overturned the motion judge's rulings and held that Bolduc's pleas were "unknowing and involuntary in a constitutional sense." ⁶ Commonwealth v. Bolduc, --- Mass.App ---, --- ^a 360 N.E.2D 340, 345 (1977). We granted an application for further appellate review. G.L. c. 211A, § 11.

1. Voluntariness of pleas. The defendant first challenges his guilty pleas on the ground that they were made involuntarily, specifically that his counsel had coerced him into making the pleas, and that he had made them without understanding the consequences or the nature of the charges against him. Because the pleas were entered prior to the case of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the burden is on the defendant to show the claimed involuntariness. Commonwealth v. Balliro, --- Mass. ---, --- n. 5 ^b 350 N.E.2d 702 (1976); Commonwealth v. Leate, 367 Mass. 689, 693-694, 327 N.E.2d 866 (1975).

The coercion alleged by the defendant was by his counsel's statement that a guilty plea by him might increase the likelihood of favorable sentences for the codefendants. Facing a decision whether or not to plead guilty while weighing such a consideration certainly places some pressure on a defendant. There is nothing in this record, however, sufficient to rebut the finding of the motion judge that "the pressures inherent in the situation which faced this defendant (did not) rise to the level of constitutional infirmity." Any defendant who pleads guilty does so under the weight of an assortment of pressures that are intrinsic to such a situation. Leate, supra at 694, 327 N.E.2d 866. Commonwealth v. Manning, 367 Mass. 699, 705-706, 327 N.E.2d 715 (1975). The recognition of these pressures on the defendant is not enough, however, to render the plea involuntary in a constitutional sense. See Manning, supra. So long as the plea "is the defendant's own, guided by reasonable advice of his counsel, his own knowledge of what he has done, and a fair understanding of the alternatives," it must be considered voluntary. Id. at 706, 327 N.E.2d at 719.

According to the findings of the motion judge, counsel, in conferring with the defendant just prior to the latter's guilty pleas, "stressed the fact that since defendant was serving a life sentence, he had nothing to lose by pleading guilty and hence all of his refusal would serve to accomplish was to diminish the possibility that his two co-defendants would receive lighter sentences." Counsel testified at the motion hearing, however, that this statement was made in the context of his describing to the defendant all the alternatives that were available to him. Counsel said that he did not recommend any particular course of action to the defendant, and that the defendant's decision to plead guilty was his own. ⁷ No plea bargaining agreement conditioned on a guilty plea by the defendant had been entered into between the prosecutor and defense counsel. On these facts the degree of inducement to plead guilty is even less than that which we held in Commonwealth v. Balliro, ---, --- - ---^c 350 N.E. 702 (1976), was not coercive. There the prosecutor and defense counsel had entered into an agreement whereby the defendant's guilty plea was exchanged for a favorable recommendation on sentencing for the codefendants. We therefore hold that there was no error in the ruling of the motion judge that the defendant's pleas were "not the result of coercion."

Also relied on by the defendant as a ground for the involuntariness of the pleas is the claim that he was unaware of both the nature of the charges against him and the consequences of pleading guilty. See Commonwealth v. Morrow, 363 Mass. 601, 605, 296 N.E.2d 468 (1973); Calabrese v. United States, 507 F.2d 259, 260 (1st Cir. 1974). The contention that the defendant was unaware of the consequences of the pleas may be disposed of easily. The motion judge found that prior to the proceedings challenged in this case the defendant had had a great deal of experience with the criminal justice system, having been in court on numerous occasions on a variety of charges. On the most noteworthy of these occasions the defendant had pleaded guilty to murder in the second degree on an indictment charging murder in the first degree. At that time his counsel had explained to him the possible consequences of a guilty plea. Further, counsel who represented the defendant at the proceeding challenged here testified at the motion hearing that he had informed the defendant, prior to the entry of the pleas, of the potential results of such action, including the possibility of the imposition of the on-and-after sentences that were in fact...