Com. v. Parzyck, 94-P-736

• Decision Date: 26 August 1996
• Docket Number: No. 94-P-736,94-P-736
• Citation: 668 N.E.2d 1358,41 Mass.App.Ct. 195
• Parties: COMMONWEALTH v. Daniel PARZYCK.
• Court: Appeals Court of Massachusetts

Page 1358

668 N.E.2d 1358

41 Mass.App.Ct. 195

COMMONWEALTH v. Daniel PARZYCK.

No. 94-P-736.

Appeals Court of Massachusetts,

Hampshire.

Argued Sept. 6, 1995.

Decided Aug. 26, 1996.

Robert J. Wheeler, Jr., Boston, for defendant.

Deborah M. Clark, Assistant District Attorney, for Commonwealth.

Before SMITH, GILLERMAN and FLANNERY, JJ.

SMITH, Justice.

On September 20, 1989, the defendant pleaded guilty in the Superior Court to one count of breaking and entering in the nighttime with intent to commit a felony and one count of larceny in a building. The defendant's guilty pleas were the result of a plea bargain made with the prosecutor. The details of the bargain were as follows: (1) the defendant would plead guilty to both counts of the indictment; (2) the prosecutor would recommend a five-to-seven year State prison sentence, but the defendant could argue for a lesser sentence; (3) if the defendant received a State prison sentence, the district attorney's office would recommend a concurrent house of correction sentence on cases that the defendant had pending in the Northampton District Court. ¹ After the plea colloquy, the judge sentenced the defendant to from not less than five to not more than seven years at M.C.I., Cedar Junction, on the breaking and entering count and a concurrent three-to-five year sentence on the larceny charge. ²

On April 2, 1990, the defendant pleaded guilty in the Northampton District Court to the charges that had been the subject of the plea negotiations. In accordance with the plea agreement made in the Superior Court, the prosecutor recommended in the District Court a sentence concurrent with the defendant's State prison sentence. The judge accepted the guilty plea but then exceeded the joint recommendation, imposing a house of correction sentence that was to be served on and after the sentence imposed in the Superior Court matter. However, because the judge had not afforded the defendant an opportunity to withdraw his guilty pleas once the judge imposed a sentence that exceeded the joint recommendation, see Mass.R.Crim.P. 12(c)(2), as amended, 399 Mass. 1215 (1987), the District Court judge later allowed the defendant's motion for a new trial. The defendant, pursuant to the de novo system then in effect, had a jury trial. He was convicted on all three charges.

At the time of sentencing in the District Court, the prosecutor recommended a house of correction sentence to be served on and after the State prison sentence, contrary to the plea agreement entered into in the Superior Court. The judge imposed sentences of four and one-half years in the house of correction to be served on and after the State prison sentence.

This sentence was subsequently revised to two and one-half years in the house of correction to be served on and after the State prison sentence. This court then reversed the defendant's conviction for reasons unrelated to this appeal in an unpublished memorandum and order pursuant to Appeals Court Rule 1:28, 36 Mass.App.Ct. 1117, 634 N.E.2d 156 (1994). The defendant was retried and on September 14, 1994, was convicted of assault and battery with essentially the same sentence imposed. The Commonwealth argues that the prosecutor's recommendation at the conclusion of the first jury trial is the conduct at issue in this appeal. The defendant contends, however, that the Commonwealth was required to recommend concurrent sentences "throughout."

On September 1, 1992, the defendant filed a motion to withdraw his guilty pleas in the Superior Court. He claimed that the Commonwealth violated the terms of the agreement when the prosecutor failed to recommend that the sentences imposed in the District Court be concurrent with the sentences imposed in the Superior Court. The Superior Court judge denied the motion ruling that, if any grounds existed for the motion, they were at the District Court level and not in the Superior Court.

"[W]hen the prosecutor enters into plea bargain agreements, 'the court will see that due regard is paid to them, and that the public faith which has been pledged by him is duly kept.' " Commonwealth v. Santiago, 394 Mass. 25, 28, 474 N.E.2d 154 (1985), quoting from Commonwealth v. Benton, 356 Mass. 447, 448, 252 N.E.2d 891 (1969). "The touchstone for determining whether a defendant has been improperly denied the advantages he expected ... is whether that defendant has reasonable grounds for reliance on his interpretation of the prosecutor's promise, and whether the defendant in fact relied to his detriment on that promise." Commonwealth v. Santiago, supra. Commonwealth v. Doe, 412 Mass. 815, 819, 593 N.E.2d 237 (1992).

The defendant claims that the plea bargain that he entered into in the Superior Court was clear and unequivocal. It was agreed that, if he pleaded guilty in the Superior Court and received a State prison sentence which the prosecutor had recommended, the prosecutor would then recommend in the District Court that the defendant receive a house of correction sentence concurrent with his State prison sentence.

The Commonwealth challenges the defendant's interpretation of the plea agreement and sets forth several reasons why the prosecutor was entitled to make a different recommendation at the District Court level. First, the Commonwealth claims that the defendant violated the terms of the plea bargain in the District Court when he disputed the facts that were being read into the record by the prosecutor. We disagree. There is nothing in the plea agreement that states that the defendant must agree to all the facts as read into the District Court record by the prosecutor.

Second, the Commonwealth argues that the defendant was not justified in relying on the prosecutor's promise because the prosecutor could not guarantee what sentence the judge would impose in the District Court. This argument also fails. The plea agreement did not guarantee a sentence; it stated that the prosecutor would recommend the agreed-upon sentence, which he did not do. Commonwealth v. Santiago, 394 Mass. at 28, 474 N.E.2d 154.

Third, the Commonwealth argues that, when the judge allowed the defendant to withdraw his plea and go to trial in District Court, the Commonwealth was no longer bound by the agreement. The Commonwealth asserts that there is no indication that it agreed to sustain the recommendation after a trial. This argument also fails because the Commonwealth never predicated the bargain on there being a guilty plea in District Court. The focus of the bargain was the defendant pleading guilty in Superior Court, not District Court. The defendant performed his part of the bargain in reliance on the prosecutor's promise to recommend a concurrent...