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SJC-11908

   JOSHUA CHARBONNEAU vs. PRESIDING JUSTICE OF THE HOLYOKE
           DIVISION OF THE DISTRICT COURT DEPARTMENT.



       Suffolk.       October 8, 2015. - January 22, 2016.

  Present:   Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
                           & Hines, JJ.


Supreme Judicial Court, Superintendence of inferior courts.
     District Court. Practice, Criminal, Plea. Statute,
     Construction.



     Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on May 13, 2015.

    The case was reported by Botsford, J.


     Paul R. Rudof, Committee for Public Counsel Services (Ryan
M. Schiff, Committee for Public Counsel Services, with him) for
the plaintiff.
     Susanne G. Reardon, Assistant Attorney General, for the
defendant.
     William C. Newman, Chauncey B. Wood, & Joseph N.
Schneiderman, for American Civil Liberties Union of
Massachusetts & another, amici curiae, submitted a brief.


    HINES, J.     In this appeal, we determine whether a standing

order of the Holyoke Division of the District Court Department
                                                                      2


(Holyoke District Court), prohibiting the tender of a so-called

"defendant-capped" plea on the day of trial, contravenes the

guilty plea procedure mandated in G. L. c. 278, § 18, and Mass.

R. Crim. P. 12, as appearing in 442 Mass. 1511 (2004).       Joshua

Charbonneau, who stands charged in the Holyoke District Court

with larceny over $250, challenges the standing order on

statutory and constitutional grounds.    He contends that the

standing order violates his right to tender a defendant-capped

plea at any time prior to trial because neither G. L. c. 278,

§ 18, nor Mass. R. Crim. P. 12 imposes a time limit on such

tenders.   He also asserts that the judicially imposed time limit

unconstitutionally burdens his right to due process.    We

conclude that the standing order conflicts with and impairs a

defendant's right to tender a defendant-capped plea as provided

in G. L. c. 278, § 18, and Mass. R. Crim. P. 12.     Consequently,

we vacate the standing order on that ground and bypass

Charbonneau's constitutional claim.1

     1.    Background.   On February 19, 2015, the presiding

justice of the Holyoke District Court2 (presiding justice)

promulgated a standing order applicable to trials beginning with

     1
       We acknowledge the amicus brief filed by the American
Civil Liberties Union of Massachusetts and the Massachusetts
Association of Criminal Defense Lawyers.
     2
       The record before us indicates that the presiding justices
of the Greenfield and Orange Divisions of the District Court
Department have promulgated similar standing orders.
                                                                        3


the June, 2015, jury-of-six session.      In accordance with the

standing order, a defendant who intended to proffer a defendant-

capped plea was required to do so at the final pretrial status

conference which, in the Holyoke District Court, is scheduled

for the Wednesday two weeks prior to trial.3      After this

deadline, the court would only consider a so-called

"Commonwealth-capped" plea on the day of trial.

       In response to concerns expressed by the defense bar, the

presiding justice issued an "Amended Standing Judicial Order of

the Holyoke District Court" on March 31, 2015 (amended standing

order), extending the time during which a defendant could tender

a defendant-capped plea.      The amended standing order provides

that "the [c]ourt will allow a defendant-capped plea at any time

during the case until 2:00 P.M. the day prior to the scheduled

trial by judge or jury."      Amended standing order, supra at fifth

par.       The standing order further provides that "[t]he [c]ourt

will continue to accept unagreed pleas on the day of trial[.

H]owever, the pleas will be Commonwealth-capped pleas on the day

of trial and the defendant will not be allowed to withdraw a

plea which exceeds his suggested sentence unless the [c]ourt's

disposition exceeds the Commonwealth's recommendation."        Id. at

seventh par.      The presiding justice, implicitly recognizing that


       3
       Although the parties refer to a "readiness" conference, we
use the more recognized term of status conference.
                                                                    4


the time limit imposed by the standing order might affect a

defendant's exercise of his or her rights under G. L. c. 278,

§ 18, and rule 12,4 explained that "the intent of this [s]tanding

[o]rder is to recognize the need of the [c]ourt in efficiently

managing the flow of cases within its jurisdiction in order to

deliver justice efficiently and with speed and dignity."    Id. at

fifth par.   More specifically, the standing order, conceived as

part of a broader District Court Department trial readiness

initiative, was proposed as a means to maximize "juror

utilization."    By paring from the trial list those cases to be

disposed by plea, the court would reduce the number of jurors

summonsed to the court house for trial and minimize the burden

to witnesses, police officers, and others compelled to appear

for the trial.

     In April, 2014, Charbonneau was charged with one count of

larceny over $250 and one count of larceny under $250.     At the

first trial status conference, the Commonwealth filed a nolle

     4
       The apparent concern of the presiding justice of the
Holyoke Division of the District Court Department (presiding
justice) is reflected in the following language: "The [c]ourt
recognizes that the defendant-capped plea under [G. L. c. 278,
§ 18,] is a mechanism that provides the defendant with an
important opportunity to present to the [c]ourt an agreed or
unagreed request for disposition along with the right to
withdraw the plea if the [c]ourt exceeds the disposition. This
[s]tanding [o]rder is not intended to prevent the defendant from
exercising this right in accordance with Rule 12 of the
Massachusetts Rules of Criminal Procedure." Amended Standing
Judicial Order of the Holyoke District Court, fifth par. (Mar.
31, 2015).
                                                                       5


prosequi of the misdemeanor complaint charging larceny under

$250 and the remaining complaint was scheduled for trial on

September 17, 2015.       Because Charbonneau's trial was scheduled

to occur after the effective date of the standing order, his

option to tender a defendant-capped plea at trial was

foreclosed.    His remaining option was to tender this plea not

later than 2 P.M. the day before trial.       Claiming an inviolable

statutory right to tender a defendant-capped plea on the day of

trial, Charbonneau petitioned a single justice of this court for

relief pursuant to G. L. c. 211, § 3.       After a hearing, the

single justice stayed implementation of the standing order and

reserved and reported the case to the full court.

       2.   Discussion.   a.   Right of review under G. L. c. 211,

§ 3.    The presiding justice contends that Charbonneau may pursue

other avenues of relief and has thus failed to establish a

"substantial claim" or "irremediable" error sufficient to

justify the extraordinary relief available under G. L. c. 211,

§ 3.    Commonwealth v. Jordan, 464 Mass. 1004, 1004 (2012),

quoting Commonwealth v. Richardson, 454 Mass. 1005, 1005-1006

(2009).     We bypass the issue, however, because where a single

justice reserves decision and reports a case to the full court,

we grant full appellate review of the matters reported.

Commonwealth v. Goodwin, 458 Mass. 11, 15 (2010).

       b.   Statutory right to tender defendant-capped pleas at
                                                                   6


trial.   The procedure for tendering a guilty plea in the

District, Boston Municipal, and Juvenile Court Departments is

governed by G. L. c. 278, § 18, and Mass. R. Crim. P. 12.    See

Commonwealth v. Rodriguez, 461 Mass. 256, 258 & nn.4, 5 (2012).

General Laws c. 278, § 18, first par., provides:

    A defendant who is before the Boston municipal court
    or a district court . . . shall plead not guilty or
    guilty . . . . Such plea of guilty shall be submitted
    by the defendant and acted upon by the court;
    provided, however, that a defendant with whom the
    commonwealth cannot reach agreement for a recommended
    disposition shall be allowed to tender a plea of
    guilty together with a request for a specific
    disposition. . . . If such a plea, with an agreed
    upon recommendation or with a dispositional request by
    the defendant, is tendered, the court shall inform the
    defendant that it will not impose a disposition that
    exceeds the terms of the agreed upon recommendation or
    the dispositional request by the defendant, whichever
    is applicable, without giving the defendant the right
    to withdraw the plea.

Similarly, rule 12 protects a defendant who chooses to tender a

guilty plea from the risk of a higher sentence -- whether or not

the parties agree on a recommendation for a specific

disposition.   More specifically, rule 12 (c) (4) (A), as

appearing in 470 Mass. 1501 (2015), applicable to

recommendations for sentencing not agreed upon by the parties,

provides that "the judge shall inform the defendant that the

disposition imposed will not exceed the terms of the defendant's

request without first giving the defendant the right to withdraw

the plea."   Rule 12 (c) (4) (B), as appearing in 470 Mass. 1501
                                                                     7


(2015), applicable to agreed-upon recommendations for

sentencing, contains the virtually identical language.

    The statute, complemented by the rule, defines the two

essential elements of a defendant-capped plea:    (1) the

defendant shall tender a guilty plea; and (2) on the tender of

the plea, the judge shall inform the defendant of his or her

unconditional right to withdraw the plea if the proposed

disposition exceeds the agreed-upon recommendation or that

requested by the defendant.   In defining the requisites of a

defendant-capped plea, neither the statute nor the rule

incorporates a time limit.    Rather, the tender of a guilty plea

triggers the sentencing protections inherent in a defendant-

capped plea.   The judge's recital of the defendant's right to

withdraw the plea is mandatory, not discretionary.

    Both Charbonneau and the presiding justice rely on the

absence of language specifying a timeframe for the tender of a

defendant-capped plea to support their arguments regarding the

validity of the standing order.    Charbonneau contends that where

the statute and rule lack a specific provision imposing time

limitations on the tender of a plea, none may be implied.

Conversely, the presiding justice argues that the statute is

silent as to when a plea may be tendered and that, as a

consequence, the timing of the tender is a matter left to the

court's discretion and may be governed by court management
                                                                     8


rules.     The presiding justice further argues that the court may

impose a reasonable limitation on the right to tender a

defendant-capped plea, as a means of improving court efficiency.5

We are not persuaded by the presiding justice's arguments and

conclude that G. L. c. 278, § 18, and rule 12 preclude the

imposition of a time limitation, as set forth in the standing

order, on the tender of a guilty plea.

         While we acknowledge that neither G. L. c. 276, § 18, nor

rule 12 contains express language governing the timing of a plea

tender, we disagree that the absence of such language permits a

judicially imposed time limitation.    Applying familiar rules of

statutory construction, we conclude that the Legislature's

failure to include a time limit for the plea tender cannot

justify an interpretation that undermines the purpose of the

statute.

     If a statute is "simply silent" on an issue, "we interpret

the provision 'in the context of the over-all objective the

Legislature sought to accomplish.'"     Seller's Case, 452 Mass.

804, 810 (2008), quoting National Lumber Co. v. LeFrancois

Constr. Corp., 430 Mass. 663, 667 (2000).     Our task is to

discern and implement the intent of the Legislature.     Oxford v.

     5
       In view of our conclusion that the standing order violates
defendants' statutory right to tender a defendant-capped plea at
trial, we need not reach the presiding justice's contention that
the standing order's pretrial deadline is a reasonable limit on
a defendant's due process rights.
                                                                     9


Oxford Water Co., 391 Mass. 581, 587 (1984).    Based on our

review of the statute as a whole, we conclude that the central

purpose of G. L. c. 278, § 18, is to preserve a defendant's

right to tender a defendant-capped plea.    This purpose is

plainly discernible from the single mandate of the statute:

that the court "shall inform the defendant that it will not

impose a disposition that exceeds the terms of the agreed upon

recommendation or the dispositional request by the defendant."

G. L. c. 278, § 18.   This singular focus establishes that

purpose as the sine qua non of the statute.

      The centrality of this purpose is further evinced by the

timing of the statute's enactment.   The Legislature created the

defendant-capped plea procedure at the same time that it

eliminated the two-tier trial de novo system in the District

Court and Boston Municipal Court Departments.    See Commonwealth

v. Pyles, 423 Mass. 717, 720-721 (1996).    The trial de novo

procedure, which originated in the Colonial era, allowed a

convicted defendant to opt for a new trial.    See St. 1783, c.

51.   In effect, this was a risk-free opportunity to put the

Commonwealth to its proof of the crime charged.    Although the

Legislature preserved the right to a jury trial when it

eliminated the de novo trial, this change altered the balance

that had previously favored defendants.    Viewing the elimination

of the long-standing trial de novo system as a curtailment of
                                                                   10


defendants' rights, the Legislature properly could create a

statutory right to tender a defendant-capped plea as the

appropriate counterbalance.   Thus, our analysis proceeds on the

assumption that protection of the right to tender a defendant-

capped plea lies at the heart of the statute and that rule 12

reinforces this purpose by incorporating a comprehensive scheme

to protect that right.

    In deference to the legislative prerogative to provide this

protection to a defendant, we are obliged to fashion a statutory

interpretation that furthers rather than restricts the exercise

of this right.   See Pyles, 423 Mass. at 721-722, quoting Weems

v. United States, 217 U.S. 349, 379 (1910) (Legislature's

prerogative to cloak defendant with sentencing protections "is

not to be interfered with lightly").   The prohibition of a

defendant-capped plea on the day of trial unquestionably

restricts the sentencing protections offered by the statute and

the rule.   The standing order imposes more than a logistical

time constraint; it is a substantive limit on defendants'

sentencing protections.   In its operation, the standing order

undermines the purpose of the statute because it permits a judge

to bypass the mandated sentencing protections if, for any

reason, the defendant does not tender a plea before the day of

trial.   As we have discussed, we discern a legislative purpose

to protect, without exception, a defendant's right to tender a
                                                                   11


defendant-capped plea.   Because neither the statute nor the rule

expressly permits the time limit imposed by the standing order

and because the time limit undermines the purpose of the

statute, we reject the presiding justice's contention that the

standing order is a valid exercise of its administrative

authority to manage the schedule of court business.

     Our interpretation draws support from the legislative

history of G. L. c. 278, § 18.   The Legislature has not

restricted the defendant-capped plea procedure, despite multiple

revisions to both G. L. c. 278, § 18, and rule 12.    When the

Legislature ended trials de novo and created the one-trial

system, it explicitly retained defendants' right to request a

specific disposition, find out if the court would impose a more

punitive sentence, and withdraw their plea.   G. L. c. 278, § 18,

as appearing in St. 1992, c. 379, § 193.   When the body charged

with implementing the new trial system proposed restrictions on

pleading rights, those recommendations were not incorporated in

the final one-trial system.6   See SJC's Proposed Rules for One-


     6
       The One-Trial Implementation Subcommittee of the District
Court Committee on Caseflow Management proposed a rule that
would have required "[a]ny plea or admission submitted by the
defendant after the trial date has been scheduled" to be limited
by the Commonwealth's requested disposition. SJC's Proposed
Rules for One-Trial System, Massachusetts Lawyers Weekly (22
M.L.W. 287), Oct. 25, 1993, at 26 (publishing proposed rule
4 [c] and commentary). This Commonwealth-capped plea is in
effect at the Superior Court. See Mass. R. Crim. P.
12 (c) (4) (A), as amended, 470 Mass. 1501 (2015) ("In the
                                                                     12


Trial System, Massachusetts Lawyers Weekly (22 M.L.W. 287), Oct.

25, 1993, at 23.    In fact, the Legislature expanded the right to

tender defendant-capped pleas to include the entire Juvenile

Court Department.    See St. 1996, c. 200, § 37.    The history of

rule 12 similarly evinces an expansion of the defendant-capped

plea procedure.     See Mass. R. Crim. P. 12, as appearing in 442

Mass. 1511 (2004), and 470 Mass. 1501 (2015).      Rule 12 was

strengthened to reflect the mandatory defendant-capped plea

process provided by G. L. c. 278, § 18.     See Reporters' Notes to

Rule 12 (2004), Mass. Ann. Laws Court Rules, Rules of Criminal

Procedure, at 1493 (LexisNexis 2014-2015).

     Last, while not dispositive, long-standing trial practice

supports our view that a defendant's right to tender a

defendant-capped plea at trial is an essential part of the

fairness calculus in the guilty plea process.      See Goodwin, 458

Mass. at 20 & n.12 (2010) ("defense capped plea" procedure

common litigation practice since 1987 version of Mass. R. Crim.

P. 12 [c] [2], as appearing in 399 Mass. 1215).      In Pyles, 423

Mass. at 718, 722, which also involved the tender of a

defendant-capped plea on the day of trial, we upheld the

constitutionality of G. L. c. 278, § 18.     In that case, we had



Superior Court, the judge shall inform the defendant that the
disposition imposed will not exceed the terms of the
prosecutor's recommendation without first giving the defendant
the right to withdraw the plea").
                                                                  13


no occasion to address the timing of a defendant-capped plea,

but we noted the prevalence of the practice.   Id.

    Although we implicitly addressed the point earlier in our

analysis, we note briefly our rejection of the presiding

justice's additional argument that judicial discretion to accept

or deny a defendant-capped plea, see Mass. R. Civ. P. 12 (a) (3)

("A judge may refuse to accept a plea of guilty"), encompasses

the authority to truncate the time in which defendants may

tender such pleas.   The presiding justice argues that because

"[n]either [r]ule 12 nor G. L. c. 278[,] § 18[,] establish[es]

how many times a defendant may tender a defense capped plea,"

"[i]ndividual judges are free to formulate their own policy on

this issue as the needs of their particular courts dictate."

See Reporters' Notes to Rule 12 (2004), supra at 1490.     An

individual judge's discretion to accept or reject a plea is not

the same as the court's exercise of its discretion to establish

trial management policies that impair a defendant's statutory

rights.   First, the acceptance or refusal of a plea has

constitutional dimensions not at issue here.   See Commonwealth

v. Furr, 454 Mass. 101, 106-107 (2009) (pleas must be made

intelligently and voluntarily to be effective waiver of right to

trial).   Second, as explained above, under G. L. c. 278, § 18,

and rule 12, a judge has no discretion to alter the statutory

procedure by requiring the tender of a defendant-capped plea
                                                                    14


before trial.   The statute and the rule mandate the judge to

respond to the plea tender, not set deadlines to receive it.

    Any reliance on Rule 4(c) of the District/Municipal Courts

Rules of Criminal Procedure fails for the same reason.    Rule

4(c) does not confer judicial authority to forbid defendant-

capped pleas at trial (thereby indirectly setting time limits on

the tender of defendant-capped pleas).    Rule 4(c) states:   "If

the court rejects the dispositional terms . . . it shall so

inform the defendant and the defendant shall be permitted to

withdraw the plea or admission."    Rule 4(c) mimics the language

of G. L. c. 278, § 18, and Mass. R. Crim. P. 12 (c) (4) (A),

which require the judge to respond to a defendant's tender of a

defendant-capped plea.   Further, and as described above, rule

4(c) is a court rule, not an independent source of authority to

trump a specific statutory right.    See Senior Hous. Props. Trust

v. HealthSouth Corp., 447 Mass. 259, 271 (2006).

    Although we reject the standing order as a valid exercise

of the Holyoke District Court's administrative authority, we are

mindful and respectful of the case management and quality of

justice imperatives underlying the presiding justice's

promulgation of the standing order.    At the same time, we are

compelled to establish boundaries that do not encroach on the

rights of defendants.    We are especially protective of these

boundaries where there exists, as here, a well-defined and
                                                                   15


carefully guarded right to tender a defendant-capped plea.      The

inherent authority of the judiciary, which we recognize fully,

Campatelli v. Chief Justice of the Trial Court, 468 Mass. 455,

475-476 (2014), cannot justify the standing order where it

conflicts with Charbonneau's statutory right.      See Senior Hous.

Props. Trust, 447 Mass. at 271 ("where there is an

irreconcilable conflict between a court rule and a statute, the

rule generally must yield to the statute").

    3.    Conclusion.   For the reasons stated above, we are

persuaded by Charbonneau's argument that the presiding justice

may not promulgate a standing order imposing a time limit on

defendant-capped pleas where the Legislature has not seen fit to

do so.   Therefore, we vacate the standing order insofar as it

purports to preclude the tender of a defendant-capped plea on

the day of trial.

                                     So ordered.
