Commonwealth v. Cheney

• Decision Date: 03 November 2003
• Citation: 800 NE 2d 309,440 Mass. 568
• Parties: COMMONWEALTH vs. MICHAEL CHENEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

440 Mass. 568

800 NE 2d 309

COMMONWEALTH vs. MICHAEL CHENEY.

Supreme Judicial Court of Massachusetts, Middlesex.

November 3, 2003.

December 15, 2003.

Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ.

Katharine B. Folger, Assistant District Attorney, for the Commonwealth.

Carlo A. Obligato for the defendant.

CORDY, J.

This case requires us to decide a question left open in Commonwealth v. Brandano, 359 Mass. 332 (1971) (Brandano), whether art. 30 of the Declaration of Rights of the Massachusetts Constitution permits a judge (prior to verdict, finding, or plea) to dismiss a legally adequate criminal indictment in the "interests of public justice" over the Commonwealth's objection. We conclude that it does not.

1. Background. In July, 1997, a grand jury returned four indictments charging the defendant Michael Cheney with rape of a child under sixteen years of age in violation of G. L. c. 265, § 23. The details of the alleged incidents are not relevant to our analysis, so we need not recite the specific allegations. See Commonwealth v. Tim T., 437 Mass. 592, 593 (2002) (Tim T.). In late 1999, Cheney was arraigned in the Superior Court. Cheney pleaded not guilty to all four indictments, and subsequently filed a "Motion for Disposition Under M.G.L. Ch. 276 Sec. 87,"¹ asking the court to place him on pretrial probation and to continue the case without a change of plea or an admission to sufficient facts. The Commonwealth objected to the use of pretrial probation as a disposition, requested that the indictments proceed to trial, and, in the alternative, demanded that the judge hold a hearing pursuant to Brandano before dismissing the indictments at the end of whatever pretrial probation period she imposed. On May 18, 2000, the judge placed Cheney on pretrial probation for six months and indicated her intent to dismiss the case thereafter. The Commonwealth gave notice of its intention to appeal from the eventual dismissal of the case, and asked the judge to reconsider her ruling and allow the case to proceed to trial. That request was denied.

One day before the end of the six-month "pretrial" probationary period, the Cmmmonwealth filed a motion for trial, which Cheney opposed. After holding a Brandano-type hearing,² the judge dismissed the indictments, making specific written findings and concluding that the "`interests of public justice' require a dismissal."³ The Commonwealth appealed, and we transferred the case to this court on our own motion. We now vacate the judge's orders and remand the case for further proceedings.

2. Discussion. General Laws c. 265, § 23, explicitly forbids a prosecution of rape of a child from being "placed on file or continued without a finding."⁴ We recently held that an indictment brought under the same statute in the Juvenile Court could not be disposed of, over the Commonwealth's objection, through the use of the means employed by the judge here, i.e., pretrial probation and dismissal under the procedures set forth in Brandano. Tim T., supra at 596-597. We first concluded that the "use of pretrial probation under G. L. c. 276, § 87, by itself, as a disposition of a case is inconsistent with the Legislature's intent in enacting that section," id. at 594, but that it could be used as a step leading to the disposition of a case when done in conjunction with G. L. c. 278, § 18, the statute governing guilty pleas and dispositions in the Juvenile Court, the District Court, and the Boston Municipal Court.⁵Id. at 595. We next concluded that G. L. c. 278, § 18, only permitted the use of pretrial probation and dismissal as a disposition after the tender of a guilty plea or an admission to sufficient facts, and, in any event, would not have permitted such a disposition to be imposed in a case involving an indictment under G. L. c. 265, § 23, where a continuance without a finding is "otherwise prohibited by law."⁶Id. at 595 & n.2. Absent compliance with G. L. c. 278, § 18, we held that the disposition imposed in Tim T. could not be undertaken over the Commonwealth's objection. Id. at 595. Implicit in our decision is the conclusion that, as concerns cases pending in the Juvenile Court, District Court, and Boston Municipal Court, a dismissal "in the interests of public justice" is only available in compliance with the terms of G. L. c. 278, § 18,⁷ see Commonwealth v. Rotonda, 434 Mass. 211, 217 (2001), and Brandano is no longer available for this purpose.

The question presented here is whether an indictment brought in the Superior Court, where the provisions of G. L. c. 278, § 18, do not apply, may properly be disposed of by combining an order of pretrial probation with a dismissal under Brandano. The answer turns on the outcome of the constitutional question left open in Brandano.

In Brandano, this court authorized a continuance without a finding and the ultimate dismissal, over the Commonwealth's objection, of a prosecution of the receipt of a stolen motor vehicle brought under G. L. c. 266, § 28. At the time of the case, G. L. (Ter. Ed.) c. 266, § 29 provided:

"A complaint or indictment for the violation of any provision of section twenty-seven A or twenty-eight shall not, unless the purposes of justice require such disposition, be placed on file or disposed of except by trial and judgment according to the regular course of criminal proceedings. It shall be otherwise disposed of only upon motion in writing, stating specifically the reasons therefor and verified by affidavit if facts are relied on. If the court or justice certifies in writing that he is satisfied that the cause relied on exists and that the interests of public justice require the allowance thereof, such motion shall be allowed, and said certificate shall be filed in the case." (Emphases added.) Brandano, supra at 334 n.2.⁸

In this context the court articulated the now familiar procedural requirements to be used in connection with determining whether the "interests of public justice" warrant a disposition of dismissal in the absence of a trial or a plea. Specifically:

"When dismissal of a case is proposed by the defendant or by the judge without the consent of the Commonwealth, the defendant shall file an affidavit in support of a dismissal which shall contain all the facts and the law relied upon in justification of a dismissal. The Commonwealth may file a counter affidavit, and, as to matters contained in the affidavits which are in dispute, there shall be a hearing, unless the judge concludes that on the face of the affidavits `the interests of public justice' do not warrant a dismissal. If the judge concludes that the `interests of public justice' require a dismissal he shall record the findings of fact and the reasons for his decision. The Commonwealth would have a right of appeal under G. L. c. 278, § 28E, as amended." Id. at 337.

We stated that "we believe[d] that the procedure, utilized in this case either generally or under the statute, would not be constitutionally offensive," implying that the articulated procedure might be permissible even in prosecutions brought under statutes other than G. L. c. 266, § 29 (emphasis added).⁹ Id. However, we specifically declined to decide the "ultimate question of constitutionality." Id. at 337.¹⁰ Today, we are called on to decide that ultimate question.¹¹

Article 30 states:

"In the government of this Commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men."

In the context of criminal prosecutions, the executive power affords prosecutors wide discretion in deciding whether to prosecute a particular defendant, and that discretion is exclusive to them. See Commonwealth v. Taylor, 428 Mass. 623, 629 (1999); Commonwealth v. Pellegrini, 414 Mass. 402, 404-405 (1993); Shepard v. Attorney Gen., 409 Mass. 398, 401 (1991). Once commenced, "the decision to nol pros a criminal case is within the discretion of the executive branch of government, free from judicial intervention." Commonwealth v. Gordon, 410 Mass. 498, 500 (1991). See Commonwealth v. Wheeler, 2 Mass. 172, 173 (1806). "The effect of dismissing a complaint without a trial is like that of quashing or entering a nolle prosequi of an indictment." Commonwealth v. Bressant, 126 Mass. 246, 247 (1879). Accord Commonwealth v. Gordon, supra; Commonwealth v. Brandano, supra at 334-335. "Judicial review of decisions which are within the executive discretion of the [prosecutor] `would constitute an intolerable interference by the judiciary in the executive department of the government and would be in violation of art. 30 of the Declaration of Rights.'" Shepard v. Attorney Gen., supra, quoting Ames v. Attorney Gen., 332 Mass. 246, 253 (1955). Thus, when a judge, "[w]ithout any legal basis . . . preempt[s] the Commonwealth's presentation of its case [t]hat action effectively usurp[s] the decision-making authority constitutionally allocated to the executive branch." Commonwealth v. Gordon, supra at 501. See Burlington v. District Attorney for the N. Dist., 381 Mass. 717, 721 (1980) ("virtual exclusion of judicial intervention to check or correct the district attorney in the [decision to nol pros] . . . follows from Part I, art. 30 of the Massachusetts Constitution declaring a separation of powers"); Commonwealth v. Hart, 149 Mass. 7, 8 (1889) ("Only an attorney authorized by the Commonwealth to represent it has authority to declare that he will not further prosecute a case in behalf of the Commonwealth. A court is not a prosecuting officer, and does not act as the attorney for the Commonwealth. Its office is judicial, — to hear and determine between the Commonwealth and the defendant").

The conclusion...