Appeals Court (December 1, 2009)

This case serves as a reminder that it is a violation of Article 30 of the MA Declaration of Rights for judges to accept a plea to a lesser offense and/or to dismiss a charge over the Commonwealth's objection.

The defendant was charged with one count of distribution of a class D substance and with distribution of a class D substance while in or on, or within 1,000 feet of a school. On the date of the suppression motion hearing, the parties submitted a form containing a conditional tender of a guilty plea under c. 278, §18. The parties could not agree on the disposition of the two counts. The defendant requested that the distribution charge be reduced to possession and the matter be continued without a finding for one year, and that the violation of a school zone charge be dismissed. The Commonwealth requested guilty findings on both counts, with a sentence of one day in the house of correction imposed on the distribution charge, and a two-year sentence imposed on the school zone charge to be served after the one-day sentence. After the judge conducted a colloquy, he accepted the defendant's requested recommendation and reduced the distribution charge to possession and dismissed the school zone charge, stating that he could not find facts sufficient on that count. The prosecutor objected and appealed.

The Appeals Court vacated the defendant's guilty pleas and remanded the case to the District Court: "It is well established that the judiciary does not have the power to dismiss an otherwise legally adequate complaint or indictment prior to verdict, finding, or plea, over the objection of the prosecutor. . . .The basis for this case law rests on the principle of separation of powers, set forth in Article 30 of the MA Declaration of Rights, which does not 'permit judges to substitute their judgment as to whom and what crimes to prosecute, for the judgment of those who are constitutionally charged with that duty,' namely the prosecution."

The Court also held that there is no distinction between a judge's decision, over the objection of the Commonwealth, to accept a plea to a lesser included offense and a judge's attempt to dismiss a valid complaint or indictment, because in each instance the judge's action intrudes on the executive branch's authority to decide what crimes to prosecute.