Commonwealth v. Glines

661 N.E.2d 674, 40 Mass. App. Ct. 95, 1996 Mass. App. LEXIS 103
CourtMassachusetts Appeals Court
DecidedFebruary 26, 1996
DocketNo. 94-P-1976
StatusPublished
Cited by7 cases

This text of 661 N.E.2d 674 (Commonwealth v. Glines) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Glines, 661 N.E.2d 674, 40 Mass. App. Ct. 95, 1996 Mass. App. LEXIS 103 (Mass. Ct. App. 1996).

Opinion

Kass, J.

At the conclusion of sentencing on two counts of indecent assault and battery of a child under age fourteen (G. L. c. 265, § 13B), to which the defendant Glines had entered a plea of guilty, Glines said to the sentencing judge: “I appreciate the opportunity to do this. Thank you very much. I won’t let the Commonwealth down.”

[96]*96Slightly more than a year later, Glines violated the terms of his probation. His probation was revoked after hearing, and he was incarcerated to serve two consecutive sentences of two and one-half years, an aggregate of five years, in a house of correction. Thereupon, Glines moved under Mass. R.Crim.P. 30(b), 378 Mass. 900 (1979), for a new trial on the grounds that: (1) the judge who accepted his plea had erred in conducting the plea colloquy; (2) he had received ineffective assistance of counsel; and (3) the probation condition he had violated was unreasonably broad. The same judge of the District Court who had taken the plea from Glines and imposed sentence on him conducted an evidentiary hearing on Glines’ motion for a new trial and denied the motion. From that denial, Glines has appealed. We affirm.

Under a special rule then applicable in Essex and Hampden counties, the judge, as part of the plea colloquy, was required to advise the defendant that, should the sentence imposed exceed the disposition the defendant had requested, the defendant could withdraw his plea of guilty. St. 1986, c. 537, § 19, relating to District Court trials in Essex and Hampden counties. Rule 3 of Special Rules of Criminal Procedure for District Court Criminal Cases in Essex and Hampden Counties. Compare Mass.R.Crim.P. 12 (c)(2), as amended, 399 Mass. 1215 (1987).1 In the transcript of the plea and sentencing proceedings, which was made from an audiotape, the judge did not impart to Glines that he could withdraw his plea should the judge excéed the sentence that the defendant had requested. Earlier exchanges between the judge and counsel were not recorded because of a power outage at the Peabody courthouse and its environs.

Glines had requested that he receive a sentence of two [97]*97concurrent two and one-half year terms in the house of correction, those sentences to be suspended for a five-year probationary period. The terms of probation, in addition — obviously — to not offending again, would include strict adherence to a program of behavior therapy, pharmacological consultation, and supervision. The consequence of violating probation would be two and one-half years of incarceration. The government had asked for sentencing which would have required two and one-half years to be served and another two and one-half years on probationary terms, so that Glines would serve a total of five years were he to violate the terms of probation. The sentences the judge imposed were two consecutive (on-and-after) two and one-half year terms, a total of five years, the sentences to be “stayed”2 for a five-year probationary period. Under those sentences, a lapse during the probationary period would cost the defendant five years of incarceration, but if he stuck to his remedial program and did not offend, he would serve no time at all; hence the defendant’s effusive thanks and pledge to the judge at the end of the plea and sentencing proceedings.

In terms of the primary ground urged by the defendant on his appeal, the following exchange during the sentencing proceedings is germane:

Unidentified [apparently a probation officer]: “Another question I had about your sentence, Your Honor, is it my understanding that the two-and-a-half years and then another two-and-a-half years on and after, so if he violates, he will go to jail for five years, not two-and-a-half years.”
The Court: “Five years.”
Mr. Barton, [defense counsel]: “The defendant understands that.”

[98]*98Giines, relying heavily on Commonwealth v. Barber, 37 Mass. App. Ct. 599, 602-603 (1994), argues that the failure of the judge to advise him that he might withdraw his plea should the sentence imposed exceed the terms of his (i.e., the defendant’s) disposition request violated special rule 3, was plain error, and entitles him to a new trial. The question is not so pat, and we are of opinion that if the record establishes that the defendant offering the plea understood the consequences of the sentence and voluntarily embraced that sentence, the trial court judge, in the exercise of discretion, may deny the motion for a new trial.

As in Barber, whether the sentence imposed exceeded what had been recommended3 was less than obvious. The defendant had asked for no jail time and five years probation, and that is what he got. The difference was in the imposition of consecutive, rather than concurrent sentences and the resulting more serious consequences of a violation of probation. That Giines would serve five years if he violated probation was expressly discussed as part of the plea-sentencing proceedings. His lawyer pronounced that Giines understood he would do five years if he violated probation. The strong inference to be made is that the matter had been discussed with Giines. On the point of the defendant’s understanding, the power outage comes into play.

During the outage, so the judge found in findings of fact made in support of his denial of the motion for a new trial, there was a lobby conference that included the prosecutor, defense counsel, and a probation officer. We summarize the balance of the judge’s findings pertinent to our decision. At that conference, the judge asked the probation officer “to look into this case further and give me a recommendation for an appropriate disposition.” The chief probation officer (Cowles) thereafter met with the defendant’s counsel and then, with counsel’s permission, with the defendant alone for about half an hour. From those discussions, a recommendation emerged in accordance with the sentence ultimately imposed by the judge. Much of the detail involved the terms of probation, which we need not elaborate for purposes of this decision. Cowles told defense counsel what the judge’s sentence would be and counsel informed his client. Counsel also [99]*99informed the defendant that if he did not agree with the sentence, he could go to trial.

As indicated, the defendant was little short of ecstatic about the sentence. Then came the parting exchange, a portion of which we have previously quoted:

The Court: “Mr. Glines, I hope that you do succeed. I know from the discussion that I had with Mr. Cowles that the Probation Office is going to try to help you, but they’re also going to watch you very closely.”
Glines: “I appreciate the opportunity to do this. Thank you very much. I won’t let the Commonwealth down.”

The unconditional reading that the defendant gives to Commonwealth v. Barber, 37 Mass. at 602-603, ignores the point, explicated in Commonwealth v. Nolan, 19 Mass. 491, 494-501 (1985), that underlying the rules relating to withdrawal of guilty pleas and the cases that led to the rules’ formulation is the principle that the defendant must have “offered the plea voluntarily and knowingly.” See also Boykin v. Alabama, 395 U.S. 238, 242-243 (1969); Commonwealth v. Foster,

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Bluebook (online)
661 N.E.2d 674, 40 Mass. App. Ct. 95, 1996 Mass. App. LEXIS 103, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-glines-massappct-1996.