Com. v. LeRoy

• Decision Date: 28 August 1978
• Parties: COMMONWEALTH v. Frederick R. LeROY, Jr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 128

380 N.E.2d 128

376 Mass. 243

COMMONWEALTH v. Frederick R. LeROY, Jr.

Supreme Judicial Court of Massachusetts, Plymouth.

Argued July 13, 1978.

Decided Aug. 28, 1978.

Albert E. Grady, Brockton, for defendant.

Thomas E. Finnerty, Dist. Atty. and Thomas A. Hensley, Asst. Dist. Atty., for the Commonwealth.

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

ABRAMS, Justice.

At a de novo trial before a jury of six, see G.L. c. 218, § 27A, the defendant, Frederick R. LeRoy, Jr. (LeRoy), was convicted of the offense of operating a motor vehicle while under the influence of intoxicating liquor. G.L. c. 90, § 24. General Laws c. 90, § 24(1)(B ), provides that on a conviction for operating a vehicle under the influence of intoxicating liquor the defendant's license is to be revoked. Following the jury verdict and pursuant to G.L. c. 90, §§ 24(1)(B ) and (C ), the defendant's license was suspended for one year. The defendant sought to avoid the loss of his license after the verdict by moving for alternative disposition under G.L. c. 90, § 24E. The effect of a disposition pursuant to G.L. c. 90, § 24E, is that there is no conviction and, therefore, a defendant's license is not automatically revoked. The District Court judge denied this motion on the ground that he had no authority to set aside the jury verdict; he noted, however, that if he did possess such authority he would, in his discretion, allow the motion. It is from the denial of this motion that the defendant appeals to this court. See G.L. c. 218, § 27A. We affirm the decision of the District Court judge.

General Laws c. 90, § 24D, provides that a person convicted of or charged with operating a motor vehicle while under the influence of intoxicating liquor may be placed on probation for one year and shall as a condition of probation be assigned to a driver alcohol education program; the establishment of such program is also provided for by G.L. c. 90, § 24D. General Laws c. 90, § 24E, as appearing in St.1975, c. 505 § 2, provides that "(w)here a person has been charged with operating a motor vehicle under the influence of intoxicating liquor, and where the case has been continued without a finding and such person has been placed on probation with his consent and where such person is qualified for disposition under . . . (G.L. c. 90, § 24E), a hearing shall be held by the court at any time after sixty days but not later than ninety days from the date where the case has been continued without a finding to review such person's compliance with the program ordered as a condition of probation (under G.L. c. 90, § 24D) and to determine whether dismissal of the charge is warranted. . . . If the judge finds sufficient basis to conclude that said person has satisfactorily completed or is satisfactorily complying with said program the judge may enter a dismissal of the charge."

The defendant first contends that under G.L. c. 90, §§ 24, 24D and 24E, the District Court judge did possess the authority to order the alternative disposition requested by him. We disagree. Section 24(1)(B ), provides for automatic revocation of a defendant's license on conviction, ¹ and § 24(1)(D ), as amended by St.1955, c. 198, § 2, states that "a person shall be deemed to have been convicted if he pleaded guilty or nolo contendere or was found or adjudged guilty by a court of competent jurisdiction, whether or not he was placed on probation without sentence or under a suspended sentence or the case was placed on file . . . ." The jury verdict of guilty satisfied this definition of "conviction" and required revocation of the defendant's license. Under G.L. c. 90, § 24E, two prerequisites for the alternative disposition sought by the defendant are that "a person has been charged with operating a motor vehicle under the influence of intoxicating liquor, and . . . (that) the case has been continued without a finding." The defendant's case was not continued without a finding; rather, a jury found him guilty of the charge. Thus, each of these sections taken alone and both of them construed together indicate that a judge has no authority to order the method of disposition which would not result in revocation of a defendant's license once a defendant has been found guilty of the offense charged. See J. R. Nolan, Criminal Law § 557 (1976).

The defendant next argues that this construction of the statute denies him equal protection of the law. He maintains that there is no rational basis for distinguishing between those persons who are tried by a jury and are therefore ineligible for the alternative disposition sought in this case since the jury can only convict or acquit and those persons who are tried before a judge and are thus eligible for the alternative disposition. We find no merit in this claim. There is no constitutional equal protection right that such a method of disposition be available to all. See Healy v. First Dist. Court of Bristol, 367 Mass. 909, 327 N.E.2d 894 (1975). And the possibility that a more severe punishment might be accorded to those who choose to be tried by a jury does not constitute an invidious classification. See North Carolina v. Pearce, 395 U.S. 711, 722-723, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). See also Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).

The defendant finally argues that, since he can only receive the disposition he seeks if he chooses to be tried by a judge, the statute infringes his right to a jury trial. We disagree. Not all government imposed choices in the criminal process which discourage the exercise of rights are impermissible. Chaffin v. Stynchcombe, 412 U.S. 17, 29-35, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973). See Gavin v. Commonwealth, 367 Mass. 331, 327 N.E.2d 707 (1975); Mann v. Commonwealth, 359 Mass. 661, 271 N.E.2d 331 (1971); Walsh v. Commonwealth, 358 Mass. 193, 260 N.E.2d 911 (1970). The possibility that a greater penalty will result from a jury trial than from the entry of a guilty plea has not been found to infringe impermissibly on the right to a jury trial. See Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). See also Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978); Commonwealth v. Simpson, 370 Mass. ---, --- - --- ^a, 345 N.E.2d 899 (1976). The fact that counsel could be obtained only at a type of proceeding in which the defendant risked greater penalties has been found permissible, Middendorf v. Henry, 425 U.S. 25, 46-48, 96 S.Ct. 1281, 47 L.Ed.2d 556 (1976), and the possibility that a greater sentence might be imposed on retrial was not found to chill the defendant's right to appeal his conviction. Chaffin v. Stynchcombe, supra. See Mann v. Commonwealth, supra, 359 Mass. at 667, 27...