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05/02/78 TERRY LEE GIBNEY v. COMMONWEALTH (AND A

May 2, 1978

TERRY LEE GIBNEY
v.
COMMONWEALTH (AND A COMPANION CASE *FN1



Suffolk. Two petitions for writs of error filed in the Supreme Judicial Court for the county of Suffolk on October 13, 1977. The cases were heard by Braucher, J.

Hennessey, C.j., Kaplan, Wilkins, Liacos, & Abrams, JJ.

SYLLABUS BY THE COURT

Error, Writ of. Practice, Criminal, Plea.

The opinion of the court was delivered by: Liacos

On two petitions for writs of error, this court declined to consider the petitioners' arguments that the prosecutor violated their rights by reneging on his plea bargains and that they were denied effective assistance of counsel where the record was totally inadequate and fell far short of presenting the minimum material necessary for a proper consideration of the issues. [148]

There was no merit in arguments raised by two petitions for writs of error that the petitioners were entitled either to have their alleged plea bargains honored by the Judge or to have an opportunity to withdraw their guilty pleas once the Judge had decided not to impose sentence in conformity with the agreement. [148-149]

These are appeals from judgments denying issuance of writs of error and dismissing the petitions filed in the Supreme Judicial Court for the county of Suffolk. Because the petitions were on judgments for manslaughter, the provisions of G. L. c. 250, § 11, apply, and issuance of the writs rested in the sound discretion of the single Justice. The sole issue before this court is therefore whether the single Justice abused his discretion. Aronson v. Commonwealth, 331 Mass. 599, 601 (1954). McGarty v. Commonwealth, 326 Mass. 413, 414-415 (1950). We hold that in these two cases he did not.

It appears from the petitions that both petitioners were indicted for the offense of murder and were brought to trial on February 5, 1976. Both petitioners, after Discussions between their court-appointed counsel and the prosecutor, entered pleas of guilty to manslaughter and were sentenced by the trial Judge to terms of not less than eighteen years nor more than twenty years. The petitioners assert that imposition of these sentences violated their due process and equal protection rights under the Federal Constitution on the grounds that a "plea bargain" had been made between their counsel and the prosecutor to the effect that the prosecutor would recommend that the Judge impose sentences of eight to fifteen years. The petitioners thus claim: (1) that they were "entitled to either have the plea-bargain honored [by the Judge] or be given an opportunity to withdraw guilty plea since would not have pleaded guilty if had known that the promise would not be kept." They also claim: (2) that the prosecutor reneged on his plea bargain, thereby violating the petitioners' rights; *fn2 and (3) that they were denied effective assistance of counsel because their court-appointed trial counsel failed to explain certain elements of the charges against them, the availability of certain defenses, the burden of proof imposed on the Commonwealth, and the consequences of pleading guilty with regard to the waiver of certain constitutional rights.

We do not reach the merits of arguments (2) or (3) for several reasons. We note initially that the record before this court is totally inadequate and falls far short of presenting the minimum material necessary for a proper consideration of the issues. See Delle Chiaie v. Commonwealth, 367 Mass. 527, 529 (1975); Delle Chiaie v. Commonwealth, 353 Mass. 771, 772 (1968). See also Farrell v. Commonwealth, 362 Mass. 857 (1972). The following crucial facts, among others, do not appear in the record: The terms of any plea bargain that might have been agreed to by the prosecutor and the defense counsel; what statements were made, or actions taken, by the Judge at the time the guilty pleas were made and accepted; what statements or representations were made by the prosecutor; what statements were made, or information conveyed, by defense counsel to their clients prior to the entry of the guilty pleas. Moreover, the constitutional arguments raised by the petitioners are based on factual questions that are best left for resolution in the first instance by the trial Judge on a motion for new trial. See Commonwealth v. Penrose, 363 Mass. 677, 680-681 (1973) (attack on validity of guilty plea); Lamoureux v. Commonwealth, 362 Mass. 880 (1972); Earl v. Commonwealth, 356 Mass. 181, 183 (1969). See G. L. c. 278, § 29. *fn3

We consider now the first argument raised by the petitioners -- that they were entitled either to have the alleged plea bargain honored by the Judge or to have an opportunity to withdraw their guilty pleas once the Judge decided not to impose sentence in conformity with the agreement. This very contention was considered and rejected in the recent case of Commonwealth v. Taylor, 370 Mass. 141, 145-146 (1976). The single Justice was therefore clearly exercising sound discretion in concluding, as he apparently did, that this argument too raised no reasonable possibility that an error of substance had occurred. See McGarty v. Commonwealth, supra at 414.

We find no abuse of discretion on the part of the single Justice in these cases.

Judgments ...


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