Com. v. Tirrell

• Decision Date: 11 February 1981
• Citation: 382 Mass. 502,416 N.E.2d 1357
• Parties: COMMONWEALTH v. Herbert H. TIRRELL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1357

416 N.E.2d 1357

382 Mass. 502

COMMONWEALTH v. Herbert H. TIRRELL.

Supreme Judicial Court of Massachusetts, Franklin.

Argued Oct. 9, 1980.

Decided Feb. 11, 1981.

Stephen R. Kaplan, Asst. Dist. Atty., for the Commonwealth.

Thomas T. Merrigan, Greenfield, for defendant.

Peter W. Agnes, Jr., Asst. Dist. Atty., for Atty. Gen. and various dist. attys., amici curiae, submitted a brief.

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

LIACOS, Justice.

About midnight of January 23, 1979, the defendant and Carl Longo drove in Longo's car to a doctor's office in Greenfield where the defendant broke into the office, looked for money, but finding none, left. After driving around Greenfield, the two broke into the local welfare office. While the defendant made a long distance telephone call, Longo rifled through desk drawers in another room, and removed food stamp identification cards. The telephone call made by the defendant was to an ex-girl friend in Maryland whom he implored to marry him. She refused. He became quite angry and told her he was going to destroy the office. After the call, the defendant opened a filing cabinet and set fire to its contents. With a fire burning in the file cabinet, the two drove away. They were apprehended shortly thereafter.

The defendant pleaded guilty on May 22, 1979, to three indictments charging wilful burning of a dwelling house, G.L. c. 266, § 1, breaking and entering in the nighttime with intent to commit a felony, G.L. c. 266, § 16, and larceny in a building, G.L. c. 266, § 20. ¹ The trial judge sentenced him to serve twenty-five years in the Massachusetts Correctional Institution at Concord and imposed a three- to five-year suspended sentence to the Massachusetts Correctional Institution at Walpole. On May 23, 1979, the defendant filed a motion to revise, revoke and withdraw his guilty plea. The judge denied this motion after an evidentiary hearing. In response to the defendant's motion to reconsider, the judge conducted another hearing on July 12, 1979, and denied the motion to reconsider without further findings.

The defendant's original motion to withdraw his guilty plea and the accompanying affidavit were based on the prosecutor's alleged failure to comply with an order to disclose agreements of inducements or reward to prospective witnesses, namely, an agreement with Longo. At the subsequent hearing on his motion to reconsider, the defendant claimed prosecutorial vindictiveness and coercion induced the plea of guilty, a claim the defendant had briefly raised orally, and without substantiation, at the first hearing. The defendant appealed the denial of both motions. The Appeals Court upheld the findings and conclusions of the trial judge that there was no agreement of leniency made with Longo and no violation of a duty of disclosure. The Appeals Court, however, held that the pleas were produced by prosecutorial vindictiveness, and reversed the order denying the defendant's motion to withdraw his pleas. Commonwealth v. Tirrell, --- Mass.App. ---, ---, --- ^a, 406 N.E.2d 689 (1980). We granted the Commonwealth's application for further appellate review. We affirm the trial judge's rulings.

The record shows that defense counsel and the prosecution negotiated the following plea bargain: on May 4, the Commonwealth made a "firm" offer to recommend a sentence to yield three years' actual incarceration time at M.C.I. Concord whether the defendant entered a plea or went to trial. After the defendant brought a motion for change of venue and a motion for examination to determine his capacity to form criminal intent, ² the prosecutor informed the defendant's attorney, on May 11, that the original recommendation promised would not be made, rather the recommendation was changed to a six- to ten-year sentence at M.C.I. Walpole. ³ The prosecutor explained that he based his original offer on the belief that the defendant would not stand trial, given the strength of the Commonwealth's case. He also explained that, upon reconsideration of the "(d)efendant's attitude," he concluded that the original offer was too lenient. He acknowledged that the defendant's filing of pretrial motions after the May 4 negotiation struck him as "dilatory" and that it angered him because he had no knowledge of the defendant's intent to bring the motions. But the prosecutor represented that anger did not impel him to change the recommendation. The defendant's attorney protested the change by letter of May 17, 1979, to which the prosecutor never responded. Defense counsel characterized the defendant's reaction to the prospect of six to ten years at Walpole as one of panic. "He quickly and rapidly evaporated from his prior position of wanting to be tried ..., retreated to a position where he felt he was safer and forewent his constitutional right to a trial."

On May 22, 1979, the defendant did not go forward with a scheduled hearing on his motion to suppress, but decided to change his plea. Before the change, the defendant's attorney obtained the prosecutor's assurance that the Commonwealth would make the recommendation originally promised if the defendant now pleaded guilty. At the hearing on the plea, the defendant responded in the negative when asked whether he had been in any way induced or threatened to plead guilty, and defense counsel endorsed the Commonwealth's sentence recommendation. The plea was taken in accordance with the procedures set forth in Mass.R.Crim.P. 12, --- Mass. --- (effective July 1, 1979); the original recommendation was made. The sentence which the defendant is currently serving conforms to the Commonwealth's initial offer.

The parties make these arguments on appeal. The defendant alleges that he was entitled to disclosure of an agreement that the Commonwealth would not indict Longo for arson, and that the prosecution would assent to Longo's pending motion to revise his sentence in exchange for Longo's testimony against the defendant. The defendant further claims involuntariness in his plea, which he asserts resulted from prosecutorial vindictiveness and coercion. The Commonwealth asserts that there was no such agreement with Longo; that, by his plea of guilty, the defendant waived his right to appeal nonjurisdictional questions, and that the plea was voluntarily given. With regard to the issues of waiver and nondisclosure, we adopt the reasoning and conclusions of the Appeals Court without discussion. ⁴ We focus on the questions whether the prosecutor acted vindictively and whether the pleas of guilty were involuntarily made. We also consider whether there was "breach" of a contract entered into between the Commonwealth and the defendant.

1. Prosecutorial Vindictiveness and Due Process of Law.

The essence of the dispute between the Commonwealth and the defendant, which divided the Appeals Court as well, ⁵ is whether, as a matter of Federal constitutional law, the mandate of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), and Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), applies to the facts of the case at bar. Alternatively, the question may be put as to whether the facts of this case are governed by the principles set forth in Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978). The majority opinion of the Appeals Court in Commonwealth v. Tirrell, supra, states, inter alia: "We hold that the Pearce rule applies to the plea bargaining process ...." Id. at ---, ^b 406 N.E.2d 689. "We hold only that an unjustified change in the (prosecutor's) recommendation is vindictive and it serves no legitimate purpose." Id. at ---, ^c 406 N.E.2d 689. "Therefore, justification for the increased recommendation after the defendant's failure to accept the original recommendation ⁶ must affirmatively appear on the record, and it must be 'based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original' recommendation. Pearce, 395 U.S. at 726 (89 S.Ct. at 2081)." --- MASS.APP. AT ---, 406 N.E.2D 689^D.

In considering whether the Appeals Court properly applied Pearce and Perry to this case, we note at the outset that neither case involved plea bargaining. Pearce involved the question of whether, after a successful appeal by a defendant, a harsher sentence may be imposed on conviction resulting from a retrial. It also involved action by a judge, not a prosecutor. In Pearce the trial judge imposed a more severe sentence upon retrial after appeal. The Court found that the judge acted in retaliation for the defendant's exercising his right to appeal. 395 U.S. at 726, 89 S.Ct. at 2081. The present facts in no way suggest an abuse of the judge's sentencing power. On the same basis we reject Tirrell's reliance on Letters v. Commonwealth, 346 Mass. 403, 193 N.E.2d 578 (1963), in which we found that the trial judge improperly coerced a guilty plea by threatening a more severe sentence after trial. Id. at 408, 193 N.E.2d 578.

In Blackledge v. Perry, supra, the Court faulted the prosecutor who obtained a felony indictment against the defendant, upon the defendant's claim of trial de novo following conviction of a misdemeanor. The felony indictment was based on the same incident which gave rise to the misdemeanor complaint. Id. 417 U.S. at 28-29, 94 S.Ct. at 2102-2103. Although the facts of Perry better resemble those under review, we find a substantive difference between the prosecutor's augmenting the charges to which the defendant was subject and his changing only the offer to recommend sentence for an unaltered charge. Although a plea of guilty to the felony indictment was set aside in Perry, there was no plea of guilty at issue in Pearce. We view these cases, therefore, neither as plea bargaining cases, nor as cases which essentially deal with the problem of the voluntariness of pleas. Instead we vie...