Appeals Court, (July 9, 2007)

When a defendant waives trial by jury and admits to sufficient facts to support a conviction, but elects not to proceed with the plea, she is not entitled to withdraw her jury trial waiver, nor must the court advise her that she may proceed to trial before a different judge.

The defendant was charged with uttering a false check and larceny over $250. She waived her right to a jury trial and the case was set down for a bench trial. On the date of trial, she indicated to the court that she wished to change her plea. After the colloquy and the prosecutor's recitation of facts, the plea broke down and after a brief recess the judge conducted a jury-waived trial. The defendant neither moved to withdraw her waiver of jury trial, nor did she request to proceed to trial before a different judge. The court found her guilty on both charges and she appealed, claiming that the judge should have advised her that she could withdraw her jury trial waiver, or that she had the right under G.L. c. 218, §26A to have the jury-waived case heard before a different judge.

As to the waiver of jury trial, the Appeals Court cited Commonwealth v. Armand, 411 Mass. 167, 173-175 (1991) where, under similar facts, the SJC ruled that the trial court, upon hearing the case facts and rejecting a plea agreement, was not required to afford the defendant an opportunity to revoke his jury waiver. As to the right of a defendant who has admitted to inculpatory facts during a plea colloquy and then decides to proceed to trial, G.L. c. 218, §26A provides that

"[w]here the defendant has properly filed a waiver and consented to be tried without a jury, as hereinbefore provided, trial shall proceed in accordance with the provisions of law applicable to jury-waived trials in the superior court; provided, however that at the option of the defendant, the trial may be before a judge who has not rejected an agreed recommendation or dispositional request made by the defendant pursuant to the provisions of section eighteen of chapter two hundred and seventy-eight."

The Appeals Court found this right to trial before a different judge to be "permissive rather than mandatory, and then only at the defendant's option." The statute does not require the court to notify the defendant of this right or to conduct a colloquy; the initiative lies with the defendant.

Note: The court went on to say, "[w]e do not intend by our holding, however, to endorse the practice of a judge presiding over a bench trial of a defendant who has previously admitted before the same judge to sufficient facts to support the conviction of the charged offense. Though a trial judge sitting without a jury ordinarily is presumed able to weigh the evidence appropriately to avoid consideration of extraneous factors…, it may well ask too much by way of mental gymnastics to require a judge to ignore an admission of facts sufficient to establish a defendant's guilt."