Dunbrack v. Com.

• Decision Date: 16 October 1986
• Citation: 398 Mass. 502,498 N.E.2d 1056
• Parties: Richard M. DUNBRACK v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1056

498 N.E.2d 1056

398 Mass. 502

Richard M. DUNBRACK v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts Suffolk.

Argued Sept. 12, 1986.

Decided Oct. 16, 1986.

Morris M. Goldings, Boston, for plaintiff.

Don L. Carpenter, Asst. Dist. Atty., for Com.

Before HENNESSEY, C.J., and WILKINS, LIACOS and ABRAMS, JJ.

ABRAMS, Justice.

Pursuant to G.L. c. 211, § 3, Richard M. Dunbrack asked a single justice of this court specifically to enforce a sentencing agreement. After hearing, the single justice denied relief. Dunbrack appeals. We affirm.

The relevant facts are as follows. Dunbrack was arrested on September 4, 1984, and charged with operating a motor vehicle while under the influence of intoxicating liquor, in violation of G.L. c. 90, § 24. On October 26, 1984, Dunbrack entered an admission to sufficient facts pursuant to an agreement reached between defense counsel and an assistant district attorney. In exchange for this admission, the assistant district attorney agreed to recommend that Dunbrack be placed on probation for one year, and, as a condition of this probation, Dunbrack was assigned to an eight-week driver alcohol education program. See G.L. c. 90, § 24D (1984 ed.). ¹ The recommendation was based on Dunbrack's probation report, which showed that Dunbrack had no prior record. The judge accepted the recommendation of counsel, and Dunbrack was sentenced to one year's probation, conditioned on his completion of the alcohol education program. ²

Shortly after this hearing, an error in Dunbrack's probation report was discovered. In fact, Dunbrack had been arrested for operating a motor vehicle while under the influence of alcohol in 1981. As a result of this prior charge, Dunbrack previously had attended the same driver alcohol education program. Because Dunbrack was a second offender, he was not eligible to repeat the education program. ³

On February 12, 1985, Dunbrack's status as a second offender was called to the attention of the sentencing judge. ⁴ The sentencing judge cancelled the condition of probation concerning the driver education program and substituted sanctions specified in G .L. c. 90, § 24, ⁵ for second offenders. Specifically, the sentencing judge assigned Dunbrack to a repeat offender program which included alcohol counseling and a fourteen-day residential alcohol treatment program. Because this modification in the conditions of probation varied from the plea agreement, Dunbrack brought this action to reinstate the terms of the original agreement.

In an application for extraordinary relief under G.L. c. 211, § 3, the party seeking relief must demonstrate both a substantial claim of violation of his substantive rights and error that cannot be remedied under the ordinary review process. Hadfield v. Commonwealth, 387 Mass. 252, 255 n. 2, 439 N.E.2d 279 (1982). Schipani v. Commonwealth, 382 Mass. 685, 409 N.E.2d 1300 (1980). Morrissette v. Commonwealth, 380 Mass. 197, 198, 402 N.E.2d 492 (1980). The appropriate method for attacking the lawfulness of the admission to sufficient facts and the sentence imposed is a postconviction motion for new trial pursuant to rule 30(b) of the Massachusetts Rules of Criminal Procedure, 378 Mass. 900 (1980). ⁶ See Commonwealth v. Fernandes, 390 Mass. 714, 715, 459 N.E.2d 787 (1984); Commonwealth v. DeMarco, 387 Mass. 481, 482, 440 N.E.2d 1282 (1982); Commonwealth v. Huot, 380 Mass. 403, 406 & n. 3, 403 N.E.2d 411 (1980). At oral argument, Dunbrack admitted that he could seek a new trial pursuant to Mass.R.Crim.P. 30(b). Because Dunbrack's substantive rights can be protected through normal postconviction relief, the single justice correctly denied relief pursuant to G.L. c. 211, § 3.

We comment briefly on Dunbrack's claim. Dunbrack contends that the disposition in this case is controlled by our decision in Buckley v. Quincy Div. of the Dist. Court Dep't, 395 Mass. 815, 482 N.E.2d 511 (1985). We do not agree. In Buckley, a supervisory court sought to modify the terms and conditions of probation imposed by the sentencing court. Further, the supervisory court tried to impose additional conditions on the probation which were unrelated to the original offense. Id. at 817. We said that a supervisory court has no power to modify the conditions of probation absent any material change in the probationer's circumstances since the imposition of probation. Id. at 828. We specifically did not "outline those situations in which the sentencing court might modify the terms of probation" (emphasis in original). Id.

Unlike the Buckley case, the conditions of probation of Dunbrack were modified by the original sentencing judge to make his sentence lawful and within the statutory scheme. Moreover, the modified terms directly related to the offense for which Dunbrack was sentenced. Because the original sentencing judge modified the conditions of Dunbrack's probation in response to the discovery of an error in his probation report, and because the modification related to the original offense, the Buckley case is inapposite.

This case simply presents an instance of the trial court's correction of an error on which Dunbrack's sentence was based. The original agreement and the sentence rested on erroneous information, and as a result, the agreement was not lawful. At the time the sentencing judge was given the correct information, he altered the conditions of probation according to the minimum statutory requirements. There was no prosecutorial misconduct or bad faith. Unlike the circumstances described in Commonwealth v. Benton, 356 Mass. 447,...