Com. v. Tirrell

• Decision Date: 30 June 1980
• Citation: 10 Mass.App.Ct. 125,406 N.E.2d 689
• Parties: COMMONWEALTH v. Herbert H. TIRRELL.
• Court: Appeals Court of Massachusetts

Page 689

406 N.E.2d 689

10 Mass.App.Ct. 125

COMMONWEALTH v. Herbert H. TIRRELL.

Appeals Court of Massachusetts, Franklin.

Argued Dec. 14, 1979.

Decided June 30, 1980.

Thomas T. Merrigan, Greenfield, for defendant.

Stephen R. Kaplan, Asst. Dist. Atty. (Edward F. Berlin, Greenfield, with him), for the Com.

Before ARMSTRONG, PERRETTA and DREBEN, JJ.

PERRETTA, Justice.

On May 22, 1979, the defendant pleaded guilty to indictments charging him with the malicious burning of a dwelling house, G.L. c. 266, § 1, larceny in a building, G.L. c. 266, §§ 16, 20, and breaking and entering in the nighttime with the intent to commit a felony, G.L. c. 266, § 16. The judge imposed sentence in accordance with the recommendation of the Commonwealth. Two days later the defendant sought to withdraw his guilty pleas on the basis that at the time of his pleas he was unaware of the fact that the Commonwealth had made promises or inducements to an anticipated principal witness against him. After an evidentiary hearing on the motion, the judge found that the Commonwealth had made no promise or inducement to this witness, and he denied the motion to withdraw the guilty pleas. A week later the defendant filed a motion for reconsideration, alleging that his pleas had been involuntary because motivated by prosecutorial vindictiveness in the form of an increased sentence recommendation after trial if the defendant should elect to proceed to trial. ¹ The judge denied this motion after hearing arguments of counsel. We hold that the prosecutor's intended increase of the sentence recommendation was unjustified and constituted prosecutorial vindictiveness, and we reverse the order denying his motion to vacate.

Because we reverse the decision of the judge on the issue of the prosecutor's increase of the sentence recommendation, we deal only briefly with the issue of an alleged agreement between the Commonwealth and the defendant's accomplice. The judge held a full evidentiary hearing on Tirrell's claim of an undisclosed arrangement for leniency by the Commonwealth for the accomplice in exchange for his testimony against the defendant. Our review of the transcript of this hearing and the Commonwealth's responses to the defendant's pretrial motions lead us to the conclusion that the judge's findings of fact on this issue were supported by the evidence. See Commonwealth v. Buonopane, --- Mass.App. ---, --- ^a, 403 N.E.2d 1186 (1980). The judge did not err in concluding that the Commonwealth had not made any promise or inducement to the defendant's accomplice relative to the offenses with which he was charged or in connection with its assent to his motion to reduce his sentence. See Mastrian v. McManus, 554 F.2d 813, 823 (8th Cir.), cert. denied sub nom. Mastrian v. Wood, 433 U.S. 913, 97 S.Ct. 2985, 53 L.Ed.2d 1099 (1977), cited with approval in Commonwealth v. Haywood, 377 Mass. ---, --- n. 4 ^b, 388 N.E.2d 648 n. 4 (1979) ("mere general expectation of leniency need not be revealed to jury absent express or implied promise"). The Commonwealth's assent to the accomplice's motion to revise his sentence was based upon its sentence recommendation at the time of the accomplice's pleas of guilty on the charges against him. See Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); United States v. Ewing, 480 F.2d 1141, 1143 (5th Cir. 1973) ("both of these proceedings (original sentence and motion to reduce it) were integral parts of the sentencing process in this case.").

The defendant's second contention is that on May 4, 1979, the prosecutor told defense counsel that the Commonwealth's sentence recommendation upon the defendant's pleas of guilty would be one that would result in his incarceration at M.C.I., Concord, for three years. This would be accomplished by recommending that the defendant be sentenced on the various indictments for an aggregate of twenty-five years. When defense counsel asked what the recommendation would be if the defendant were to proceed to trial and be found guilty, the prosecutor replied that the recommendation was a "firm" one. It would be the same if the defendant proceeded to trial or if he should plead guilty. The defendant alleges that when it became apparent to the prosecutor on May 8 that the defendant intended to go to trial, the prosecutor informed defense counsel that if the defendant were to be found guilty, the Commonwealth's recommendation would be that the defendant be incarcerated at M.C.I., Walpole, for a term of six to ten years. The defendant asserts that this threat of an increased recommendation resulted in his guilty pleas. He alleges that his pleas were involuntary, as they were the product of the fear instilled in him by the prosecutor's actions.

The judge made no findings of fact on this issue. Notwithstanding the labels attached to these motions, they were implicitly motions for a new trial, see Commonwealth v. Penrose, 363 Mass. 677, 681, 296 N.E.2d 819 (1973); Commonwealth v. Huot, --- Mass. ---, --- ^c, 403 N.E.2d 41 (1980), and factual findings on the defendant's claim should have been made. See Earl v. Commonwealth, 356 Mass. 181, 183, 248 N.E.2d 498 (1969); Mass.R.Crim.P. 30(b), Mass. (1979) (effective July 1, 1979). Compare McHoul v. Commonwealth, 365 Mass. 465, 468, 312 N.E.2d 539 (1974), with Commonwealth v. Porter, --- Mass.App. --- ^d, 403 N.E.2d 430 (1980). We need not, however, remand this case for findings because even if we accept the truth of all the prosecutor's factual assertions, they would not, as matter of law, constitute justification for an increased recommendation. Additionally, the Commonwealth urges in its brief that the judge's general finding imported a finding of all the facts necessary to support his determination which was conclusive if supported by any reasonable view of the evidence, J. P. O'Connell Co. v. Maryland Cas. Co., 302 Mass. 232, 234, 18 N.E.2d 805 (1939), and that the judge could legitimately give evidentiary weight to the statements of counsel where there was neither contradiction nor objection, as here. Harper v. Harper, 329 Mass. 85, 88, 106 N.E.2d 439 (1952). Abdallah v. Boumil, 4 Mass.App. 499, 500, 351 N.E.2d 551 (1976).

We recite the facts as the prosecutor alleged them during arguments on the motion to vacate and the motion to reconsider. He related that the staff of the district attorney's office had reviewed the defendant's case at its outset and that it had been the consensus of the office that the defendant should be incarcerated in a house of correction for a minimum of four years. The prosecutor stated that in spite of this consensus, he had made "firm recommendation" of three years incarceration at Concord because he believed that "there was no way in the world that this man was going to go to trial." His belief was based upon the facts that there were thirty-five pending charges against the defendant and that the Commonwealth had a strong case. The prosecutor explained to the judge that his original recommendation of May 4 had been based upon the fact that if the defendant were willing to plead guilty and to demonstrate a sense of rehabilitation, he (the prosecutor) would be willing to fight in his office for a lower recommendation. He gave the firm recommendation "relying in my own mind that the Defendant would plead guilty, thinking that he would demonstrate this change in his attitude." The prosecutor stated that on May 8, when defense counsel filed a motion for a change of venue and a motion for an examination of the defendant pursuant to G.L. c. 123, § 15, he had become angry because he viewed those motions as dilatory. He demanded that the motions be heard that day, and they were denied on May 8. ² He represented, however, that his anger had nothing to do with the increased recommendation. Rather, "(w)hen it became apparent that (the defendant) would go to trial, I began to have conscience problems." He reviewed the defendant's "posture" and had a lengthy discussion with his office, after which it was determined that the first staff recommendation should be enforced. ³ He advised defense counsel on May 11 that the Commonwealth's recommendation after a trial and verdict of guilty would be a term of six to ten years at Walpole. On May 22 the parties were in court prepared to go forward on the previously filed and scheduled motion to suppress, when the defendant indicated that he wished to plead guilty. ⁴

Defense counsel stated in his affidavit in support of his motion to reconsider that on the morning of May 22 the defendant advised him that "he was scared to stand trial and risk a Walpole sentence," and that the defendant pleaded "notwithstanding (counsel's) disapproval or misgivings." Defense counsel stated to the judge that the defendant would not listen to his advice because "he just didn't know what was going to be the outcome should he exercise his right to trial, should he continue to go forward, inasmuch as there had been such a total, unexplainable, drastic and substantial change without any external justification for it."

The defendant argues that the increase in the recommendation was the result of prosecutorial vindictiveness because it penalized the exercise of his right to trial and violated his right to due process of law. See North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1959); Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). The Commonwealth argues that increasing the original recommendation was permissible as it was within "the 'give-and-take' of plea bargaining" and that the defendant was "free to accept or reject the prosecution's offer" of May 11. See Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S.Ct. 663, 667, 54 L.Ed.2d 604 (1978); Commonwealth v. LeRoy, --- Mass. ---, --- ^e, 380 N.E.2d 128 (1978).

North Carolina v. Pearce, supra, 395 U.S. at 724-726, 89 S.Ct. at 2080-2081, holds that a harsher sentence upon reconviction...