Com. v. Pelletier

• Decision Date: 26 June 2007
• Docket Number: SJC-09771
• Citation: 868 N.E.2d 613,449 Mass. 392
• Parties: COMMONWEALTH v. Gregory PELLETIER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

868 N.E.2d 613

449 Mass. 392

COMMONWEALTH v. Gregory PELLETIER.

SJC-09771

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 3, 2007.

Decided June 26, 2007.

Elin H. Graydon, Assistant District Attorney, for the Commonwealth.

Michael A. Manzi, Lawrence, for the defendant.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, & COWIN, JJ.

IRELAND, J.

The defendant, Gregory Pelletier, was charged with operating a motor vehicle while under the influence of intoxicating liquor, third offense, pursuant to G.L. c. 90, § 24(1) (a) (1). He pleaded guilty to the underlying charge of operating while under the influence, but, as we shall explain, no plea was taken on the subsequent offense portion of the charge and he was sentenced as a first-time offender. The Commonwealth, asserting that it had been denied the opportunity to present evidence as to the prior offenses pursuant to G.L. c. 278, § 11A, objected and filed a motion to reconsider. That motion was denied after a hearing and the Commonwealth then filed a G.L. c. 211, § 3, petition with a single justice of this court. The single justice remanded the case to the District Court for further proceedings relevant to sentencing. The defendant now appeals. Because the single justice was correct in concluding that the plea judge erred in denying the Commonwealth the right to introduce evidence of the defendant's prior offenses in accordance with G.L. c. 278, § 11A, we affirm.

Factual and procedural background. A complaint issued against the defendant on July 1, 1994, charging him with operating while under the influence, third offense, in violation of G.L. c. 90, § 24; operating after suspension of a license for drunk driving in violation of G.L. c. 90, § 23; and failing to drive within marked lanes, in violation of G.L. c. 89, § 4A (a civil infraction included in the complaint for procedural purposes only).¹ The defendant was in default on the complaint from September 19, 1994, until May 3, 2004. The case was eventually scheduled for disposition in the District Court on February 24, 2005. A second case against the defendant was also scheduled for disposition that day. Before the cases were called, the plea judge conducted a lobby conference. The Commonwealth, according to the prosecutor, indicated its intent to demonstrate that this was the defendant's third offense and that it was seeking the mandatory minimum sentence for the charged offense of operating while under the influence, third offense. The defendant, on the other hand, indicated that he would plead guilty only to so much of the complaint as charged a second offense. According to the prosecutor, the lobby conference dealt largely with the issue of the recommended disposition, but the manner in which the Commonwealth would prove the prior offenses was also discussed, including the Commonwealth's plan to call the defendant's probation officer as a witness. The parties then submitted a tender of plea form to the judge, with their respective recommendations. A separate tender of plea form was submitted to the judge on the separate case against the defendant that was also scheduled for disposition.

At the outset of the plea hearing the judge noted that the Commonwealth was seeking a disposition in accordance with a charge of operating while under the influence, third offense. He then commenced the plea colloquy. After questioning the defendant about his background and ensuring that he was voluntarily waiving his right to a trial and otherwise understood the consequences of the plea hearing, the judge asked the Commonwealth to state the facts that it was prepared to prove. The prosecutor, after first pointing out that there were two separate cases before the court, proceeded to set out the facts the Commonwealth was prepared to prove on the charge of operating while under the influence. The prosecutor appropriately did not at that point set out any facts to support the portion of the complaint that charged a subsequent offense. Noting the docket number of the second case, the prosecutor then set out the facts the Commonwealth was prepared to prove on that case.

The judge then inquired of the defendant whether he had committed the acts described by the Commonwealth. After the defendant responded yes, the judge stated, "There's just been an admission to an OUI one, there were no facts read into the record that I recall about any subsequents so the admission stands and that's what we have." The prosecutor interjected that the Commonwealth was prepared to offer additional facts to support the charge of third offense. The judge, however, refused to hear any additional facts, stating that the Commonwealth had already had its chance to state what it was capable of proving but did not do so. The judge reiterated that there had been an admission only to so much of the complaint as charged operating while under the influence, first offense, and sentenced the defendant as a first-time offender.

The Commonwealth objected and filed a motion to reconsider the disposition, seeking to vacate the sentence as illegally imposed. The judge denied the Commonwealth's motion after a hearing, and the Commonwealth filed a notice of appeal.² The Commonwealth also filed a G.L. c. 211, § 3, petition to which the defendant filed no opposition. The single justice concluded that the plea judge erred in denying the Commonwealth the opportunity to present evidence of prior convictions in accordance with G.L. c. 278, § 11A, and remanded the matter for the purpose of conducting either a proper plea hearing or a trial on so much of the complaint as charged the defendant with a subsequent offense. This appeal followed.

Discussion. We review the single justice's decision for abuse of discretion or other clear error of law. Youngworth v. Commonwealth, 436 Mass. 608, 611, 766 N.E.2d 834 (2002). As an initial matter, the defendant argues that the single justice should have dismissed the Commonwealth's "appeal" because it was untimely. The case was before the single justice as a request for relief pursuant to G.L. c. 211, § 3, however, not as an appeal as a matter of right from any action taken in the trial court.³ In arguing that the Commonwealth's "appeal" should have been dismissed, the defendant does not specifically argue that the Commonwealth's G.L. c. 211, § 3, petition was not properly before the single justice. The defendant, in fact, filed no opposition to the petition. Under the circumstances of this case, G.L. c. 211, § 3, was a proper vehicle for the Commonwealth to seek review of the plea judge's actions. It is well within this court's general superintendence power to correct any error or rectify any abuse of discretion that might have occurred here. Cf. Commonwealth v. Cowan, 422 Mass. 546, 547, 664 N.E.2d 425 (1996). See also Commonwealth v. Quispe, 433 Mass. 508, 510, 744 N.E.2d 21 (2001).

Furthermore, it is uncertain whether the Commonwealth could have even proceeded as a matter of right with an appeal under G.L. c. 278, § 28E, and Mass. R.Crim. P. 15(a)(1), as appearing in 422 Mass. 1501 (1996), in these circumstances. Even if we were to view the judge's ruling as a "dismissal" of the subsequent offense portion of the complaint, a dubious proposition on this record, the subsequent offense portion of the charge against a defendant does not create an independent crime; rather it concerns only the punishment to be imposed if a defendant is convicted of the underlying crime and the prior offenses are proved. Commonwealth v. Hernandez, 60 Mass.App.Ct. 416, 417-418, 802 N.E.2d 1059 (2004), quoting Bynum v. Commonwealth, 429 Mass. 705, 708-709, 711 N.E.2d 138 (1999). See Commonwealth v. Johnson, 447 Mass. 1018, 1019-1020, 856 N.E.2d 822 (2006). The defendant's sentence on the underlying charge in the complaint is also "inextricably bound" with the plea judge's treatment of the subsequent offense portion of the complaint. See Commonwealth v. Johnson, supra at 1019, 856 N.E.2d 822. Where, as here, the complaint itself (or any distinct portion of it charging a separate crime) was not dismissed, an appeal from a "dismissal" of only that portion of the complaint charging a subsequent offense may not lie. The single justice was therefore warranted in addressing the matter on the merits pursuant to G.L. c. 211, § 3.

Under G.L. c. 278, § 11A, a defendant "charged with a crime for which more severe punishment is provided for second and subsequent offenses" who pleads guilty or is found guilty after trial, "shall be further inquired of for a plea of guilty or not guilty to that portion of the complaint or indictment alleging that the crime charged is a second or subsequent offense" before sentence is imposed. If the defendant pleads not guilty, he is "entitled to a trial by jury of the issue of conviction of a prior offense ... [or] may waive trial by jury." Where a defendant has been found guilty by a jury, the judge may, in his discretion, hold the same jury to determine the issue of conviction of prior offenses or may empanel a new jury. The statute, in other words, requires a defendant to be tried in a two-step, bifurcated procedure: "first, on the underlying substantive crime and, then, in a separate proceeding, on that...