Com. v. Penrose

• Decision Date: 01 June 1973
• Citation: 363 Mass. 677,296 N.E.2d 819
• Parties: COMMONWEALTH v. Ronald E. PENROSE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 819

296 N.E.2d 819

363 Mass. 677

COMMONWEALTH v. Ronald E. PENROSE.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued May 8, 1973.

Decided June 1, 1973.

Francis John Stolarz, Boston, for defendant.

John J. Droney, Dist. Atty., Terence M. Troyer, and Barbara A. H. Smith, Asst. Dist. Attys., for the Commonwealth.

Before TAURO, C.J., and REARDON, BRAUCHER, HENNESSEY, and WILKINS, JJ.

BRAUCHER, Justice.

By this appeal under G.L. c. 278, §§ 33A--33G, the defendant asks us to rule that the validity of his guilty pleas may be challenged by a motion for a new trial under G.L. c. 278, § 29, as amended through St. 1966, c. 301. The trial judge took a contrary view and denied such a motion. The defendant asserts, and we agree, that the remedy by motion is suitable for the purpose, and that such use of it is a logical application of the reasoning in Earl v. Commonwealth, 356 Mass. 181, 248 N.E.2d 498. Accordingly, we reverse the order denying a new trial and remand the case for hearing on the motion.

In November, 1968, the defendant was indicted for murder and attempted armed robbery committed September 16, 1968. On February 27, 1969, he pleaded guilty to murder in the second degree and to attempted armed robbery, and was sentenced. In January, 1972, he filed on his own behalf a written motion for a new trial. The motion, sworn to by him, alleged among other things that he was deprived of a mental examination prior to his 'trial,' that his counsel waived mental examination contrary to his desire and without his knowledge, and that he was incompetent during his 'trial' and could not intelligently assist in his defence.

On January 28, 1972, the motion was heard and denied. The transcript discloses appearances by an assistant district attorney and by counsel for the defendant and a statement by the judge, but no statement or opportunity for statement by the defendant or his counsel. The judge ruled that a new trial could not be granted where there had never been a trial, and that as a motion to retract a guilty plea under G.L. c. 278, § 29C, the motion was not timely. He then said, 'The only other interpretation that I could give to this instrument would be to treat it as a motion to retract your plea of guilty, because as you say, it was not intelligently and knowingly made.' He read the questions put by the court before the plea was accepted and the defendant's answers to those questions, ruled that the plea was intelligently and knowingly made, and denied the motion. A written claim of exception dated the same day at the prison was filed by mail on February 3, 1972, and a claim of appeal was filed February 8, 1972.

1. Since the defendant was indicted for murder, the case remained subject to G.L. c. 278, §§ 33A--33G, notwithstanding his plea of guilty to murder in the second degree. Guilmette v. Commonwealth, 344 Mass. 527, 528, 183 N.E.2d 298. His appeal was timely. See Commonwealth v. Millen, 290 Mass. 406, 411, fn., 195 N.E. 541; Commonwealth v. McGarty, 351 Mass. 707, 222 N.E.2d 877.

2. The judge's ruling that 'a new trial cannot be granted where there has never been a trial' was in accord with several decisions of this court. Commonwealth v. Soderquest, 183 Mass. 199, 201, 66 N.E. 801; Commonwealth v. Phelan, 271 Mass. 21, 22, 171 N.E. 53; Commonwealth v. Brody, 328 Mass. 521, 523--524, 105 N.E.2d 243. Those decisions did not rest entirely on word play; they fitted into a legal setting which emphasized the public interest in the finality of convictions in criminal cases. A motion for a new trial came too late if made after sentence and more than a year after verdict. G.L. c. 278, § 29, as amended through St.1962, c. 310, § 1. Commonwealth v. Sacco, 261 Mass. 12, 15, 158 N.E. 167. See Aronson v. Commonwealth, 331 Mass. 599, 603--604, 121 N.E.2d 669. A motion to vacate sentence could not be considered after the end of the sitting at which the sentence was imposed. Commonwealth v. Brody, 328 Mass. 521, 524, 105 N.E.2d 243. Compare G.L. c. 278, § 29C, allowing sixty days after sentence; Commonwealth v. Burrone, 347 Mass. 451, 452, 198 N.E. 407; Commonwealth v. L'Italien, 352 Mass. 424, 425, fn. 1, 226 N.E.2d 192. Relief after sentence was, however, open by writ of error or by appeal for clemency to the Governor. See Commonwealth v. Dascalakis, 246 Mass. 12, 20, 140 N.E. 470. Insanity of the defendant has long been recognized as a basis for a writ of error. See Hathaway v. Clark, 7 Pick. 145; Blankenburg v. Commonwealth, 260 Mass. 369, 376, 157 N.E. 693.

In 1965 we took note of 'the gradual and necessary expansion of the statutory writ of error (G.L. c. 250, §§ 1, 9) as a postconviction remedy broad enough to deal with constitutional problems arising under recent decisions of the Supreme Court of the United States.' Shoppers' World, Inc. v. Assessors of Framingham, 348 Mass. 366, 376, fn. 9, 203 N.E.2d 811, 819. In the Federal courts those decisions produced 'dramatic change' in the functions of the writ of habeas corpus. See Hensley v. Municipal Court (1973), --- U.S. ---, --- 93 S.Ct. 1571, 36 L.Ed.2d 294; Preiser v. Rodriguez (1973), --- U.S. ---, ---, 93 S.Ct. 1827, 36 L.Ed.2d 439. By St.1964, c. 82, the one year limit on motions for a new trial under G.L. c. 278, § 29, was removed, and such a motion is now permitted 'at any time.' In Earl v. Commonwealth, 356 Mass. 181, 183, 248 N.E.2d 498, 499, decided in 1969, we took note of the change in the statute. We recognized that a single justice of this court had power to entertain 'a writ of error involving alleged misconduct on the part of a prosecutor,' but thought it preferable 'that these questions be resolved in the first instance by the trial judge upon a motion for new trial. The effect of this practice will be to place in the hands of the trial judge, rather than in the hands of the single justice, the task of resolving factual disputes underlying alleged constitutional errors. The petitioner will retain the right to a full review by this court on questions of constitutional interpretation as well as of sufficiency of the evidence to support the trial judge's factual determinations.' See American Bar Association, Standards Relating to Post-Conviction Remedies (Approved Draft, 1968), pp. 23, 30, 32...