Opinion
No. 11–P–1688.
2012-11-27
COMMONWEALTH v. Charles B. PRICE.
By the Court (TRAINOR, AGNES & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is an appeal of the trial judge's denial of the defendant's third motion to withdraw his guilty plea and for a new trial.
The defendant filed his first motion to withdraw his guilty plea on May 27, 1980, arguing that his plea was involuntary, his counsel was ineffective, and he was incompetent to make a valid guilty plea because during the colloquy he was under the influence of heroin. The first motion was denied on the ground that the defendant's claims were unsupported by the record, and this court affirmed the trial judge's denial of the motion. Commonwealth v. Price, 20 Mass.App.Ct. 1104 (1985). On October 14, 2004, the defendant filed a second motion to withdraw his guilty plea, which repeated his claims that counsel was ineffective and his plea was invalid. Additionally, the defendant argued that he was unable to understand his rights and the terms of his sentence at the time of the plea colloquy because he was under the influence of marijuana. The trial judge denied the defendant's second motion because many of the issues raised by the defendant had already been litigated, and pursuant to Mass.R.Crim.P. 30(c)(2), as appearing in 435 Mass. 1501 (2001), the defendant waived his claim of incompetence due to marijuana ingestion because he had not raised it in his first motion. Further, the judge found that the defendant made inconsistent statements about his drug use, and that the record reflected the defendant affirmatively answered he understood his rights and the penalties against him and stated he was satisfied with his legal counsel. On February 16, 2011, the defendant filed his third motion to withdraw his guilty plea, arguing that a guilty plea for murder in the second degree on an indictment charging murder in the first degree is unlawful, the amendment of his indictment from murder in the first degree to murder in the second degree should not have proceeded without first consulting a jury in accordance with G.L. c. 265, § 1.
The defendant raises a series of issues on appeal, each of which have either been previously considered by the Superior Court judge and this court or are raised for the first time on appeal and are thus waived. Both the trial judge and the Appeals Court determined that there is no basis in the record for the defendant's claims that his plea was involuntary, that he was mentally incompetent to plead guilty, or that his counsel was ineffective. Therefore, we do not need to address these arguments further. See Commonwealth v. Balliro, 437 Mass. 163, 166 (2002). However, the defendant's arguments that it is unlawful to plead guilty to murder in the second degree on an indictment charging murder in the first decree and that his plea is invalid because the judge unlawfully participated in the plea negotiations warrant brief consideration.
1. The lawfulness of the defendant's guilty plea for murder in the second degree on an indictment charging murder in the first degree. With the consent of the Commonwealth, a defendant may plead guilty to a lesser included offense. See Mass.R.Crim.P. 12(b)(1)(A), as appearing in 442 Mass. 1511 (2004); Commonwealth v.. Gordon, 410 Mass. 498, 500–503 (1991). As murder in the second degree is a lesser included offense of murder in the first degree, the defendant's guilty plea to the lesser included offense did not require an amendment of the indictment. See Ariel A. v. Commonwealth, 420 Mass. 281, 285 (1995). The defendant's argument that the language of G.L. c. 263, § 6, prohibits defendants in capital cases from pleading guilty has been rejected. See Commonwealth v. Hubbard, 457 Mass. 24, 27–28 (2010).
2. The lawfulness of the trial judge's participation in the plea negotiation. The defendant's argument that his plea is invalid because the trial judge unlawfully participated in the plea negotiations is raised for the first time on this appeal, but could have been raised in the defendant's three prior motions. Accordingly, pursuant to Mass.R.Crim.P. 30(c)(2), the defendant waived this claim. However, we add that judicial participation in plea negotiations is unlawful only in situations where there is “objective proof that the judge forced a guilty plea by putting the defendant on notice that he could expect more severe punishment if he insisted on a trial by jury.” Commonwealth v. Damiano, 14 Mass.App.Ct. 615, 618–619 (1982).
The defendant claims that following a sidebar conversation, which occurred after he stated he was under the influence of marijuana, he was pressured into accepting the plea. As the Commonwealth notes on page fifteen of its brief, nothing in the record indicates that the sidebar conference pertained to the plea agreement. Rather, the sidebar conversation was an inquiry into the defendant's statement about being under the influence of marijuana. The record shows that the judge instructed the defendant on his rights and the penalties he would face by pleading guilty. Further, the defendant responded affirmatively that he understood he was giving up his right to a trial and that he consulted with his attorney and was satisfied with his advice. Nothing in the record suggests that the defendant was coerced into accepting the plea.
Order denying motion to withdraw guilty plea and for new trial affirmed.