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SJC-12118

                 COMMONWEALTH   vs.   ROGER D. FRANCIS.



            Plymouth.     April 3, 2017. - August 11, 2017.

  Present:     Gants, C.J., Lenk, Hines, Lowy, Budd, & Cypher, JJ.


                        Practice, Criminal, Plea.



     Indictment found and returned in the Superior Court on May
11, 1967.

     Following review by this court, 355 Mass. 108 (1969), a
motion for a new trial, see 411 Mass. 579 (1992), and the
withdrawal of a plea of guilty and a second trial, see 450 Mass.
132 (2007), a motion for a new trial, filed on August 5, 2013,
was heard by Linda E. Giles, J.

     A request for leave to appeal was allowed by Botsford, J.,
in the Supreme Judicial Court for the county of Suffolk.


     Mary E. Lee, Assistant District Attorney, for the
Commonwealth.
     Leslie W. O'Brien for the defendant.


    LOWY, J.      The Commonwealth claims that an order granting

the specific performance of a plea agreement constituted error.

We agree.
                                                                    2


     Background.    In 1967, the defendant, Roger Francis, was

convicted of murder in the first degree for killing his fifteen

year old girl friend.    See Commonwealth v. Francis, 355 Mass.

108, 108-109 (1969).     In 1989, a Superior Court judge allowed

the defendant's motion for a new trial because of errors in the

reasonable doubt jury instruction given in his 1967 trial.

Thereafter, this court, considering the Commonwealth's appeal on

report of a single justice pursuant to the gatekeeper provisions

of G. L. c. 278, § 33E, affirmed.    Commonwealth v. Francis, 411

Mass. 579, 580 (1992).

     In May, 1994, the defendant reached a plea agreement with

the Commonwealth:   The defendant would plead guilty to murder in

the second degree in exchange for the opportunity to immediately

seek parole, which the Commonwealth would not oppose.1    If the

parole board declined to grant the defendant parole, the

agreement allowed the defendant to withdraw his guilty plea and

proceed to trial on the murder in the first degree charge.

After the plea agreement had been reached, the defendant pleaded

guilty on May 25, 1994, before a Superior Court judge (plea

judge).   At the plea hearing, the defendant's counsel made

representations that there was an understanding between the


     1
       At the time of the defendant's 1994 plea, he had already
served more than fifteen years in prison. Those convicted of
murder in the second degree in 1967 were eligible for parole
after fifteen years. St. 1965, c. 766, § 1.
                                                                   3


parole board and the defendant that the defendant would not be

required to be in custody to be considered for parole.2    To

effectuate the understanding as it was represented,3 the plea

judge -- over the Commonwealth's objection -- stayed the

execution of the sentence on the charge of murder in the second

degree while the defendant's parole application was being

considered.   The parole hearing was scheduled for August, 1994.

     Before the scheduled parole hearing, the parole board

informed the parties and the plea judge of its position that

pursuant to the terms of G. L. c. 127, § 133A,4 the defendant had

to be in custody in order for the parole board to have

jurisdiction over him.   Because the defendant disagreed with

returning to custody, the August parole hearing was canceled.

     In September, 1994, in response to the parole board's

position, the plea judge issued a revised order that would

terminate the stay of the defendant's sentence once the parole



     2
       Nothing occurred during the plea colloquy to suggest that
the Commonwealth had agreed as a condition of the plea that the
defendant need not be in custody during the parole hearing.
     3
       It is questionable at best whether there was ever an
understanding between the parole board and the defendant that
the defendant need not be in custody during his parole hearing.
     4
       General Laws c. 127, § 133A, provides: "Every prisoner
who is serving a sentence for life in a correctional institution
of the commonwealth . . . shall be eligible for parole at the
expiration of the minimum term fixed by the court . . ."
(emphasis added).
                                                                    4


board commenced its hearing.   The order was designed to

accommodate the defendant's request to avoid custody.

    The parole hearing was rescheduled for March, 1999.5    This

hearing was canceled in part due to the defendant's resistance

to returning to custody.   The parole hearing was rescheduled for

March, 2000.   Because the defendant would have to return to

custody to have his parole hearing, he filed a motion to

continue the stay of his sentence, or, alternatively, to

withdraw his plea.

    At the hearing on this motion, in March, 2000, a different

judge attempted to craft a solution that would allow the

defendant to remain out of custody while conforming with the

parole board's position that the defendant must be in custody

for it to conduct a hearing.   The judge proposed that the stay

be continued until the moment the parole hearing commenced (in

keeping with the 1994 plea judge's order), and that the stay be

automatically reimposed following the parole hearing if the

defendant were denied parole, so that he could withdraw his

plea.   The Commonwealth objected to this proposal.   The judge

then granted the defendant's alternative request for relief,

    5
       This five-year gap was the result of the defendant
requesting that his attorney not pursue a parole hearing and,
apparently, the Commonwealth losing track of the defendant's
case. In 1998, the prosecutor's office was informed by the
Superior Court clerk's office in Brockton that the court was
still holding the defendant's bail money, and the case began to
proceed.
                                                                      5


allowing the defendant to withdraw his guilty plea to murder in

the second degree.

     The defendant was retried on the original indictment for

murder in the first degree in 2003 before a third Superior Court

judge and jury.     His conviction of that crime was upheld by this

court.6   See Commonwealth v. Francis, 450 Mass. 132, 133 (2007).

In 2013, the defendant filed a motion for a new trial alleging

ineffective assistance of counsel and that his 1967 sentence was

cruel or unusual.     Although the judge -- who was the judge at

the defendant's 2003 trial -- found the defendant's arguments

unavailing, "[i]n light of the extenuating facts of this case,"

she granted the motion based on "principles of fundamental

fairness and due process," even though she found that the

Commonwealth had not reneged on the plea offer.     The judge

ordered specific performance of the 1994 plea agreement, and

allowed the defendant to plead guilty to murder in the second

degree.   The judge reasoned that this was the correct result

because "another party to the negotiation, the court, adopted an

interpretation of the [s]tatute -- that the Parole Board could

entertain the defendant's request for parole and conduct a

hearing at the Board's office without his surrendering into

[Department of Correction] custody -- on which the defendant


     6
       Prior to this trial, the defendant filed a motion to
enforce the plea agreement, which the trial judge denied.
                                                                     6


relied to his detriment."7   The Commonwealth appealed to a single

justice of this court pursuant to G. L. c. 278, § 33E, who

allowed the petition.

     Discussion.   The decision whether the Commonwealth enters

into a plea agreement with the defendant is the prosecutor's

alone.   See Commonwealth v. Gordon, 410 Mass. 498, 500 (1991).

See also Commonwealth v. Hart, 149 Mass. 7, 8 (1889) ("Only an

attorney authorized by the Commonwealth to represent it has

authority to declare that he will not further prosecute a case

in behalf of the Commonwealth.     A court is not a prosecuting

officer . . .").   As a general matter, when a judge accepts a

defendant's plea of guilty to murder in the second degree to an

indictment for murder in the first degree over the objection of

the Commonwealth, she usurps "the decision-making authority

constitutionally allocated to the executive branch."     Gordon,

supra at 501, and cases cited.     A judge may, however, enforce a

plea agreement over the Commonwealth's objection if she finds

that the defendant has reasonably relied on a prosecutor's

promise to his or her detriment.     Commonwealth v. Smith, 384

Mass. 519, 521 (1981).   Whether an enforceable promise exists is

primarily a question of contract law, id. at 521-522, but, in

addition, "[w]e would go beyond contract principles to order

     7
       As we explain, infra, the court is not a party to plea
negotiations, and, more importantly, the defendant never relied
to his detriment on any promise related to custody.
                                                                    7


specific performance of a prosecutor's promise even where no

contract may have existed, if, on principles of fundamental

fairness encompassed within notions of due process of law, the

promise should be enforced."   Id. at 522.

     The issue before us is whether the judge in 2013 abused her

discretion in deciding to enforce the 1994 plea agreement

between the Commonwealth and the defendant.    More particularly,

the issue is whether the prosecutor made an enforceable promise

to the defendant that he need not be in custody for the parole

hearing.

     Applying contract principles, the record does not indicate

that the Commonwealth made any enforceable promise to the

defendant that he would not have to go into custody before his

parole hearing could take place.    Indeed, the record is to the

contrary.   Thus, we apply a two-prong test to determine whether

fundamental fairness requires us to find an enforceable promise

in the plea agreement:   first, we ask "whether the defendant had

reasonable grounds for assuming his interpretation of the

bargain," Smith, 384 Mass. at 523, quoting Blaikie v. District

Attorney for the Suffolk Dist., 375 Mass. 613, 616 n.2 (1978);

and second, we ask "whether [the defendant] relied on that

interpretation to his detriment."    Smith, 384 Mass. at 523.

     Here, the defendant's argument fails both prongs of the

test.   There were no reasonable grounds for the defendant to
                                                                      8


believe that the prosecutor acquiesced to his not being in

custody during the parole hearing process.    The prosecutor

consistently objected to the stay of the defendant's sentence

throughout the plea process and continued to object to it over

the course of subsequent hearings.     See Commonwealth v. Cruz, 62

Mass. App. Ct. 610, 612 (2010).     The prosecutor's objection

demonstrates that it had made no enforceable promise that the

defendant would avoid custody at the time he would be considered

for parole.   This view is consistent with the judge's finding

that the Commonwealth never reneged on its offer.

    Even if there were reasonable grounds for the defendant to

believe that the Commonwealth had promised him that he would not

have to be in custody for the parole board to conduct its

hearing, the defendant's argument also fails the second prong of

the test, because there is no evidence that he relied on the

alleged promise to his detriment.     The parole board did not hold

a hearing between 1994 and 2000 while the defendant was at

liberty.   The defendant, therefore, took advantage of his

interpretation of the plea agreement (adopted by the court) that

he be allowed to withdraw his plea if he were required to go

into custody as a condition of his parole hearing.     Contrast

Santobello v. New York, 404 U.S. 257, 261-262 (1971)

(detrimental reliance where defendant pleaded guilty based on

promise of prosecutor to make no sentencing recommendation, but
                                                                   9


prosecutor subsequently broke promise and recommended maximum

sentence); Commonwealth v. Benton, 356 Mass. 447, 448-449 (1969)

(detrimental reliance where defendants pleaded guilty based on

promise of prosecutor to enter nolle prosequi to certain

charges, but prosecutor subsequently indicted defendants on

charges that had been so disposed).   The defendant never relied

to his detriment on any alleged promise from the Commonwealth.

His plea agreement specifically allowed him to withdraw the plea

and have the trial he requested.   The plea bargaining process

did not put the defendant in a worse position than he would have

been if the prosecutor had never agreed to the bargain in the

first place.   Smith, 384 Mass. at 522.   The defendant withdrew

his plea and he was then left with the adequate remedy of

proceeding to trial.   Id.8

    A judge may not use the vantage point of hindsight to

second guess the decisions of a defendant in rejecting a plea

agreement.   See Commonwealth v. Mahar, 442 Mass. 11, 17 (2004).

That is what happened here.   There was no enforceable promise

made by the Commonwealth that the defendant did not have to ever


    8
       This situation is different from that presented by
Commonwealth v. Mahar, 442 Mass. 11 (2004). In that case, we
held that a fair trial does not ameliorate the harm of
ineffective assistance of counsel during the plea consideration
process. Id. at 14-15. Here, where the judge below rejected
the defendant's ineffective assistance claim, nothing impeded
the defendant during plea negotiations besides his refusal to go
back into custody so that the board could conduct a hearing.
                                                                    10


go into custody.     Thus, there were no grounds for the judge to

allow the defendant to plead guilty to murder in the second

degree.9   We conclude that the judge abused her discretion in

granting the defendant's motion for new trial.     See Commonwealth

v. Yardley Y., 464 Mass. 223, 227 (2013) (grant or denial of

motion to challenge or enforce plea reviewed for abuse of

discretion).

     Conclusion.   The grant of the defendant's motion for a new

trial is reversed.

                                     So ordered.




     9
       We note that following the 2003 trial, the judge had the
authority to reduce the verdict of murder in the first degree to
murder in the second degree under Mass. R. Crim. P. 25 (b) (2),
379 Mass. 896 (1979). There is no argument before us that the
judge's action in 2013 was undertaken pursuant to this rule.
