Commonwealth v. Dean-Ganek

• Decision Date: 12 January 2012
• Docket Number: SJC–10860.
• Citation: 960 N.E.2d 262,461 Mass. 305
• Parties: COMMONWEALTH v. Aaron D. DEAN–GANEK.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

461 Mass. 305

960 N.E.2d 262

COMMONWEALTH

v.Aaron D. DEAN–GANEK.

SJC–10860.

Supreme Judicial Court of Massachusetts, Suffolk.

Submitted Oct. 4, 2011.Decided Jan. 12, 2012.

Catherine Langevin Semel, Assistant District Attorney (Jessica M. Strasnick, Assistant District Attorney, with her) for the Commonwealth.

Linda A. Harvey for the defendant.

Daniel F. Conley, District Attorney, & Kris Foster, Assistant District Attorney, for District Attorney for the Suffolk District, amicus curiae, submitted a brief.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

GANTS, J.

In Commonwealth v. Rodriguez, 461 Mass. 256, 960 N.E.2d 245 (2012) ( Rodriguez ), we concluded that where a judge acts on his own timely motion to revise or revoke a sentence under Mass. R.Crim. P. 29(a), 378 Mass. 899 (1979), the judge has the authority to reduce a sentence “if it appears that justice may not have been done,” regardless whether a plea agreement includes an agreed sentence recommendation. This case presents the separate but related question whether the Commonwealth has the authority to require a judge to vacate a defendant's guilty plea where the Commonwealth made a charge concession as part of the plea agreement and the judge imposes a sentence less severe than the agreed sentence recommendation. We conclude that the Commonwealth does not have this authority under Mass. R.Crim. P. 12, as appearing in 442 Mass. 1511 (2004), or G.L. c. 278, § 18. We further conclude that if the guilty plea were to be vacated at the prosecution's request and over the objection of the defendant, double jeopardy would bar further prosecution on that charge.¹

Background. The defendant, Aaron Dean–Ganek, was charged in a criminal complaint with a single count of armed robbery, in violation of G.L. c. 265, § 17. The prosecutor and the defendant, through his attorney, entered into a plea agreement in which the Commonwealth agreed to enter a partial nolle prosequi to reduce the armed robbery charge to the charge of larceny from a person²; the defendant would plead guilty in the District Court to the reduced charge; and the defendant would agree to the Commonwealth's sentencing recommendation of two years in a house of correction, six months to be served with the balance suspended for two years. In addition, the defendant agreed that, on his release on probation, his whereabouts would be electronically monitored through a “bracelet” for six months; he would continue with psychological evaluation and treatment; he would stay away from the victim; and he would pay $220 in restitution jointly and severally with his codefendants. Also under the agreement, the Commonwealth would dismiss an unrelated charge of leaving the scene of property damage.

At the beginning of the plea hearing, the judge asked whether it was “an agreed upon disposition”; defense counsel said that it was and outlined the contours of the agreed sentence recommendation.³ After the judge's colloquy with the defendant and the prosecutor's recitation of the facts that would be proved at trial, the judge accepted the guilty plea and found that the defendant had pleaded guilty knowingly, intelligently, and voluntarily, and that there was a factual basis for the plea. The prosecutor then filed with the court a document confirming its partial nolle prosequi of the armed robbery charge.

The judge immediately proceeded to the sentencing hearing. The judge had learned during the plea colloquy that the defendant was a nineteen year old high school student who suffered from bipolar disorder, Asperger's syndrome, and attention deficit hyperactivity disorder. At the sentencing hearing, the judge learned that the defendant had a substance abuse problem but no prior record.⁴ The judge called counsel to sidebar and the sentencing hearing was adjourned until “[f]urther call.” ⁵ When the sentencing hearing reconvened later that day, the Commonwealth was represented by a different prosecutor, who had negotiated the plea agreement with the defendant. The prosecutor claimed that the partial nolle prosequi that had reduced the charge from armed robbery to larceny from a person was “contingent” on the judge's accepting the agreed sentence recommendation. The prosecutor asked the judge to impose the agreed sentence recommendation or, in the alternative, to “reject the plea” that the judge had just accepted and “put the parties back in the same position they were prior to the plea,” with the defendant still facing the armed robbery charge. The judge noted that “a nolle prose[qui] is the prosecutor's unilateral prerogative,” that the parties had presented the partially nol prossed charge of larceny from a person with no conditions, and that the judge had accepted the defendant's plea to larceny from the person. The judge then imposed a sentence of two years in a house of correction, suspended for two years, with all of the other conditions included in the agreed recommendation.

The Commonwealth filed a petition under G.L. c. 211, § 3, asking a single justice to vacate the defendant's sentence, to vacate the order of the District Court “precluding the Commonwealth from withdrawing its consent to the defendant's plea,” and to “[r]emand the case for resentencing.” On November 9, 2010, the single justice reserved and reported the case to the full court.

Discussion. The Commonwealth argues that rule 12 does not preclude the Commonwealth from withdrawing “its consent to a plea” where the judge imposes a sentence less severe than an agreed sentence recommendation. We rejected this argument in Rodriguez, supra at 258–259, 960 N.E.2d at 248–49, where we declared:

“The procedure for tendering a guilty plea and sentencing a defendant who has pleaded guilty is governed by Mass. R.Crim. P. 12 ... and G.L. c. 278, § 18.⁶ In all criminal cases where the Commonwealth and the defendant have entered into a plea agreement, the judge must be informed of the substance of the agreement that is contingent on the plea. Mass. R.Crim. P. 12(b)(2). Where a plea agreement includes a sentence recommendation, whether it be a recommendation by the prosecutor that the defendant is free to oppose or an agreed recommendation made jointly by the prosecutor and defendant, a judge is required to inform the defendant that the judge ‘will not impose a sentence that exceeds the terms of the recommendation without first giving the defendant the right to withdraw the plea.’ Mass. R.Crim. P. 12(c)(1)(A). Neither rule 12 nor G.L. c. 278, § 18, declares that a plea may be vacated or that the Commonwealth may be released from its obligations under a plea agreement where a judge imposes a sentence below that recommended by the prosecutor, even where there is an agreed recommendation in a plea agreement. Rather, where a plea agreement includes an agreed recommendation, rule 12(b)(1)(B) requires that the recommendation be made ‘with the specific understanding that the recommendation shall not be binding upon the court.’ In short, rule 12 protects a defendant from the risk that the judge will exceed the prosecutor's recommendation, but does not protect the Commonwealth from the risk that the judge will impose a sentence below the prosecutor's recommendation.”

Apart from misinterpreting rule 12, the Commonwealth makes a fundamental error in assuming that its “consent” is required for a defendant's tender of a guilty plea. Once, as here, the Commonwealth has exercised its prerogative partially to nol pros a criminal charge and reduce it to a lesser charge, the charge before the judge is the lesser charge and a defendant is entitled to plead guilty to that charge without the Commonwealth's consent. A defendant must consent to a guilty plea because he relinquishes his constitutional right to trial by pleading guilty. The Commonwealth relinquishes nothing where a defendant pleads guilty; it has simply obtained the guilty finding it would have sought at trial without the time and expense of a trial. Therefore, in a plea colloquy, the Commonwealth's only role is to provide the factual basis for the charge; at no point does the judge ask for or need the Commonwealth's consent.

The Commonwealth's consent to a plea is relevant only where a defendant unilaterally attempts to plead to a lesser offense, thereby impermissibly modifying the prosecutorial charging decision, see Commonwealth v. Pelletier, 449 Mass. 392, 398–399, 868 N.E.2d 613 (2007) (judge may not accept defendant's plea to lesser included offense over objection of Commonwealth), or where a defendant has committed a breach of the plea agreement, thereby depriving the Commonwealth of the benefit of its bargain. See, e.g., United States v. Donahey, 529 F.2d 831, 832 (5th Cir.), cert. denied, 429 U.S. 828, 97 S.Ct. 85, 50 L.Ed.2d 91 (1976) (government entitled to withdraw from plea bargain where defendant is in breach). See also Ricketts v. Adamson, 483 U.S. 1, 8–9, 107 S.Ct. 2680, 97 L.Ed.2d 1 (1987) (where plea agreement expressly provides that it becomes null and void on defendant's breach and “then the parties shall be returned to the positions they were in before this agreement,” double jeopardy clause of United States Constitution not violated when defendant's earlier plea was vacated after refusal to comply with terms of plea agreement). The Commonwealth does not contend here that the defendant attempted to plead to a lesser charge than the one ultimately prosecuted, or that the defendant committed a breach of the plea agreement.

Where the Commonwealth has entered into a plea agreement and the defendant has honored its terms and relied on the agreement to waive his right against self-incrimination and admit his guilt at the plea hearing, we shall not release the Commonwealth from its obligations under the agreement simply because the judge, who is not a party to the agreement and under rule 12 is not bound by the agreement, did not accept the sentencing...