Supreme Judicial Court ( June 26, 2007)

A defendant charged with subsequent-offense OUI must be tried in a two-step, bifurcated process - first, on the underlying substantive offense of operating under the influence, and then a separate proceeding on the subsequent portion of the complaint.

The defendant was charged with operating under the influence of liquor, third offense. He pled guilty to the underlying offense of operating under the influence. During the plea, the prosecutor read facts into evidence to support the underlying OUI offense. The judge then inquired of the defendant whether he had committed the acts described by the Commonwealth. The defendant responded in the affirmative, and the judge found him guilty and sentenced him as a first offender. The Commonwealth objected to the defendant's sentence and asked the court to be able to proceed on the subsequent portion of the complaint. The judge refused, ruling the Commonwealth had one opportunity to present facts to the court, and because there was no evidence before the court of any subsequent offense, the court could only sentence the defendant as a first offender.

The Commonwealth appealed pursuant to G.L. c. 211, § 3, arguing that the court's action denied the Commonwealth the opportunity to present evidence as to the prior offenses pursuant to G.L. c. 278, §11A, which provides that

a defendant charged with a crime for which more severe punishment is provided for second and subsequent offenses who pleads guilty or is found guilty after trial shall be further inquired of for a plea of guilty or not guilty to that portion of the complaint or indictment alleging that the crime charged is a second or subsequent offense before sentence is imposed.

The SJC agreed with the Commonwealth, holding that G.L. c. 278, s. 11A, requires that a two-step, bifurcated procedure, "first, on the underlying substantive crime and, then, in a seperate proceeding, on that component of the charge referring to the crime as a second or subsequent offense." The statute does not require a judge to conduct a seperate colloquy during the second step of the bifurcated proceeding (unless the defendant was tried and found guilty at the first step), but the judge must specifically inquire of the defendant as to his plea on the subsequent portion of the complaint.