Commonwealth v. DiBenedetto

Docket NumberSJC-13253
Decision Date28 February 2023
PartiesCOMMONWEALTH v. FRANK DiBENEDETTO.
CourtUnited States State Supreme Judicial Court of Massachusetts

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COMMONWEALTH
v.
FRANK DiBENEDETTO.

No. SJC-13253

Supreme Judicial Court of Massachusetts, Suffolk

February 28, 2023


Heard: November 4, 2022.

Indictments found and returned in the Superior Court Department on May 21, 1986. Following review by this court, 414 Mass. 37 (1992), 427 Mass. 414 (1998), 458 Mass. 657 (2011), and 475 Mass. 429 (2016), a motion for postconviction relief, filed on May 7, 2021, was heard by James F. Lang, J.

A request for leave to appeal was allowed by Gaziano, J., in the Supreme Judicial Court for the county of Suffolk.

Ruth Greenberg for the defendant.

Cailin M. Campbell, Assistant District Attorney, for the Commonwealth.

The following submitted briefs for amici curiae:

Travis H. Lynch, Assistant District Attorney, for District Attorney for the Hampden District.

Robert F. Hennessy for Committee for Public Counsel Services.

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Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, & Wendlandt, JJ.

GAZIANO, J.

In 1994, the defendant, who had been indicted, along with two codefendants, on two counts of murder in the first degree, and was to be tried jointly with one of his codefendants, was offered a "package deal" plea bargain. Under the terms of this offer, the defendant would have been able to plead guilty to manslaughter, but only if his codefendant also agreed to the same plea. The defendant agreed to the terms of the agreement, but his codefendant, a juvenile, refused. Both the defendant and his codefendant subsequently were tried and convicted of all charges, and sentenced to consecutive terms of life in prison without the possibility of parole. In May 2021, the defendant filed a motion in the Superior Court, pursuant to Mass. R. Crim. P. 30, as appearing in 435 Mass. 1501 (2001), to vacate his convictions of murder in the first degree and to accept his pleas to manslaughter, as the Commonwealth originally had offered. The defendant's motion to enforce the terms of the proffered agreement was based on the argument that the condition attached to the offer -- that both he and his codefendant plead guilty -- violated his due process right to decide whether to accept the plea or to go to trial. A Superior Court judge, who was not the trial judge, denied the motion. The defendant filed a gatekeeper petition in the county court, pursuant to G. L. c. 278, § 33E, seeking leave to appeal from the denial of the

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motion, and a single justice allowed the appeal to proceed in this court.

We conclude that the plea offer did not violate the defendant's rights to due process. A package deal plea is consonant with the prosecutor's broad discretion to decide whether, and under what terms, to enter into a plea agreement. A prosecutor may insist that, in order for a defendant to receive a more lenient sentence than what might be received at trial, all codefendants must agree to waive their rights to trial.[1]

1. Background.

a. Prior proceedings.

This case has a lengthy history in this court. In April 1988, the defendant and one of his codefendants, Louis R. Costa, were found guilty of two counts of murder in the first degree after a joint trial. Another codefendant, Paul Tanso, also was convicted of two counts of murder in the first degree at a separate trial. In 1992, this court reversed the convictions of all three defendants because recorded testimony of a witness who was unavailable at the trials had been admitted improperly. See Commonwealth v. DiBenedetto, 414 Mass. 37, 50 (1992); Commonwealth v. Tanso, 411 Mass. 640, 656, cert. denied, 505 U.S. 1221 (1992).

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The defendant and Costa were retried jointly, and on February 3, 1994, they each were convicted of two counts of murder in the first degree on a theory of deliberate premeditation. The defendant also was found guilty on a theory of extreme atrocity or cruelty. The defendant and Costa each were sentenced to consecutive sentences of life without the possibility of parole. This court affirmed the convictions and denied the defendants' requests for relief under G. L. c. 278, § 33E. See Commonwealth v. DiBenedetto, 427 Mass. 414, 416 (1998). In March 1994, Tanso was retried separately and was acquitted.

In 2005, the defendant and Costa each filed a motion for a new trial based on newly discovered evidence concerning deoxyribonucleic acid testing of bloodstains on the defendant's sneakers. In 2009, the Superior Court judge who had presided over the defendant's second trial denied these motions. The defendant and Costa each filed gatekeeper petitions in the county court pursuant to G. L. c. 278, § 33E, seeking leave to appeal from the denial of their motions for a new trial; two different single justices allowed these gatekeeper petitions to proceed. On a consolidated appeal from the denials, this court remanded the matter to the Superior Court for further findings

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concerning the newly uncovered evidence and its exculpatory value. See Commonwealth v. DiBenedetto, 458 Mass. 657, 670-673 (2011). After a nonevidentiary hearing, a Superior Court judge again denied the motions. The defendant then filed a petition in the county court to reinstate his appeal in the full court. A single justice held that the defendant was "required to seek leave to appeal from the renewed denial of his new trial motion through a second gatekeeper petition under [G. L. c. 278,] § 33E." Commonwealth v. DiBenedetto, 475 Mass. 429, 431 (2016). The single justice "treated the defendant's petition to reinstate his appeal as a second gatekeeper petition" and "denied the petition." Id. In September 2015, "the defendant filed a motion in the full court to reinstate his appeal." Id. at 431-432. We held that "reinstatement of the appeal [was] appropriate, even though the court did not expressly retain jurisdiction." Id. at 432. We further concluded that the "motion judge did not abuse his discretion in denying the defendant's motion [for a new trial]." Id.

On October 9, 2015, Costa, who was sixteen at the time of the shooting, was resentenced to serve two concurrent life sentences with the possibility of parole. The resentencing followed this court's decision in Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass. 655, 671 (2013), S.C., 471 Mass. 12 (2015), in which we concluded that the

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Massachusetts Declaration of Rights does not permit a sentence of life in prison without the possibility of parole for individuals who commit murder in the first degree while under the age of eighteen. On July 26, 2018, Costa was released on parole.

In May 2021, the defendant, who was nineteen years old at the time of the shooting, filed a motion in the Superior Court, pursuant to Mass. R. Crim. P. 30, to vacate his convictions of murder in the first degree and to enforce a plea arrangement under which he would plead guilty to two counts of manslaughter. In his motion, the defendant asserted that, during his retrial in 1994, the prosecutor offered him and Costa a plea agreement in which they each would plead guilty to manslaughter, but only on the condition that both of them accepted the arrangement. The defendant agreed to accept the proffered agreement, but Costa rejected it. As grounds for his motion, the defendant argued that "making [his] plea offer contingent on the willingness of his codefendant to accept it . . . violated his due process right, protected by the Fourteenth Amendment and art. 12, to make his own decision whether to accept the plea or go to trial." The defendant's motion was denied. The defendant filed another gatekeeper petition pursuant to G. L. c. 278, § 33E, in the county court, seeking leave to appeal from the denial of the motion. The single justice allowed the appeal to

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proceed "on the ground that it presents a new and substantial question which ought to be determined by the full court."

b. Plea offer.

The defendant submitted six affidavits to support his contention that the Commonwealth offered him and Costa a plea arrangement during the course of the 1994 retrial. One affidavit was by the defendant himself; two were from the attorney who represented him on retrial; one was by the attorney's then associate, who assisted him on the case; one was from the defendant's sister, who was in the court room during the retrial; and one was by Costa.

The defendant avers that the prosecutor offered him and Costa the opportunity to plead guilty to two counts of manslaughter, with the imposition of consecutive sentences, provided that both accepted the offer. The defendant recollects that the plea arrangement would have included a combined sentence of from twenty-four to twenty-six years; the defendant asserts that, given then-available statutory good time and reductions for time served, had he been able to accept the plea, he would have been released in 2004. The defendant maintains that he wanted to accept the offer, but that Costa refused to do so. According to the defendant, if he were released from custody, he would live with his sister and would work at a restaurant that she and her husband own.

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The other affidavits accord with the defendant's recollection. Costa recalled that the plea arrangement would have required that the defendants "agree to a sentence that would have each of [them] serve another eight or so years in prison"[2] and that "[t]he offer was a take it or leave it for both of [them] together." The other affiants did not recall the length of the proposed sentence.

According to the affidavit by the defendant's sister, during the 1994 retrial, she "learned that the Commonwealth had offered [the defendant] and his codefendant . . . a plea to manslaughter provided that both of them accepted it. [The defendant] said he wanted to accept the plea. In a hallway outside the courtroom, [she] saw [Costa's] lawyer . . . get on his knees and beg [Costa] to take the plea, but he refused." The defendant's attorney and his associate each recalled that Costa's...

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