Commonwealth v. Rodriguez
Supreme Judicial Court, January 12, 2012
Mass. R. Crim. P. 29(a) gives a judge the authority to reduce a defendant’s sentence after accepting the Commonwealth and defendant’s agreed plea recommendation.
On November 19, 2009, the defendant and the Commonwealth entered into a plea agreement where the defendant agreed to offer a plea of guilty to the charges of possession with intent to distribute a class B and D substance and additional charges in Boston Municipal Court for a concurrent two and one-half years sentence to the house of correction. The Commonwealth agreed not to seek indictments for those charges. A judge accepted the defendant’s plea and adopted the sentencing recommendation.
On January 6, 2010, on his own motion, the judge ordered a hearing to consider whether the sentence should be revised and revoked under Mass. R. Crim. P. 29(a). Immediately thereafter, the judge revised the sentence to a concurrent sentence of two years in the house of correction with one year to serve and the balance suspended for two years. The Commonwealth filed a petition under G.L. c. 211, § 3 asking a single justice to revise and remand the sentence to its original form, and the single justice reserved and reported the case to the full Court.
The Commonwealth argued that “once a judge accepts the terms of an agreed recommendation in a plea agreement, the judge is bound by the terms of the agreement and may not exercise the authority under rule 29 to revise or revoke the sentence.” The SJC disagreed.
The Court cited the language of Mass. R. Crim. P. 12(b)(1)(B) that indicates a plea conditioned on an agreement “shall not be binding upon the court.” Unlike Federal R. Crim. P. 11, rule 12 does not create any plea agreement where the recommendation is binding on the judge. “[R]ule 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.” The Court acknowledged that sentencing is one of the most difficult judicial responsibilities and that Mass. R. Crim R. 29(a) permits a judge to revise a sentence based on new information that is learned after sentencing, to correct incomplete or mistaken information offered at sentencing and to revise a sentence where justice otherwise “may not have been done.”
Based on these reasons, the Court held “[a] judge, therefore, is not barred from reducing a sentence the judge has imposed until the time limits established in rule 29 to revise or revoke a sentence have expired. The existence of a plea agreement, even a plea agreement with an agreed recommendation, does not bind a judge to a sentence the judge later determines to be unjustly harsh.”
Commonwealth v. Dean-Ganek
Supreme Judicial Court, January 12, 2012
The Commonwealth has no authority to require a judge to vacate a defendant’s guilty plea, when the Commonwealth made a charge concession as part of an agreed upon plea and the judge imposed a less severe sentence.
The defendant was charged with one count of armed robbery, in violation of G.L. c. 265, § 17. The Commonwealth and the defendant agreed that the Commonwealth would reduce the charge to larceny from a person for an agreed upon plea to two years with six months to serve and the balance suspended with detailed probation conditions (the Commonwealth also agreed to dismiss an unrelated charge of leaving the scene of property damage). The judge accepted the plea and then imposed a lesser sentence. The Commonwealth appealed.
The Commonwealth argued that Mass. Rule Crim. P. 12 did not preclude the Commonwealth from withdrawing its consent to a plea where the judge imposes as sentence less severe than the agreed sentencing recommendation. The SJC was not persuaded by this argument. “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 only time the Commonwealth’s consent is relevant is when the defendant unilaterally attempts to plead to a lesser offense because the charging decision belongs to the prosecutor. However, when the Commonwealth exercises its prerogative to nolle prosequi a portion of a charge, the defendant is entitled to offer a plea of guilty to that charge without the Commonwealth’s consent.
“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 recommendation.”
NOTE: When the Commonwealth is reducing a charge contingent on the judge’s sentencing the defendant to the agreed recommendation, the Commonwealth must notify the judge to the provisions of the agreement under Mass. R. Crim. P. 12(b)(2) and best practice suggests all contingencies should be written on the nolle prosequi. The Court suggests a prosecutor concerned that a judge may impose a lenient sentence despite a plea agreement can conference the case with the judge before the tender of plea and inquire whether the judge is inclined to accept the plea; however, a judge is under no obligation to reveal any inclination before sentencing.