Suffolk. Petition for a writ of error filed in the Supreme Judicial Court for the county of Suffolk on December 30, 1975. The case was reported by Wilkins, J.
Hennessey, C.j., Quirico, Braucher, Liacos, & Abrams, JJ.
Evidence, Court record. Constitutional Law, Assistance of counsel. Practice, Criminal, Assistance of counsel. Waiver. Parole.
The opinion of the court was delivered by: Braucher
It was not open to a defendant, who waited eighteen years to bring an action claiming he was denied his constitutional right to assistance of counsel when he pleaded guilty to two indictments, to object to the admission in evidence of a handwritten note by the clerk who was in the court room when the pleas were taken to the effect that the defendant had been offered counsel and had refused the offer. [546-547]
Evidence in a proceeding by a defendant who claimed he was denied his constitutional right to assistance of counsel when he entered guilty pleas to two indictments supported a finding that the defendant had knowingly and intelligently waived his right to counsel. 
This court exercised its power of general superintendence under G. L. c. 211, § 3, to vacate pleas of guilty by and sentences imposed on a defendant eighteen years earlier where the sentences were imposed somewhat more informally than would now be permissible. [547-549]
In 1957, without counsel, Guillemette pleaded guilty to two indictments. More than eighteen years later, on December 30, 1975, he filed a petition for writ of error, claiming that he was denied the assistance of counsel guaranteed him by the United States Constitution. We hold that he has not carried his burden of proof. In the exercise of our power of general superintendence, however, we grant relief. G. L. c. 211, § 3.
Under Commonwealth v. Penrose, 363 Mass. 677 (1973), the matter should have been dealt with by a motion for a new trial rather than by a writ of error. Perhaps because the trial Judge had died, the Commonwealth did not raise the point. The case was referred to a master, whose report was confirmed by a single Justice of this court. Another single Justice reserved and reported the case, without decision, to the full court. Since the case has been fully heard and no useful purpose would be served by further proceedings on a motion for a new trial, we consider the case on the merits.
We summarize the findings of the master. In 1977 Guillemette was fifty-three years old. He went through the fourth grade, and served in the army in 1942-1943. He had criminal trials in Lowell in 1943, in Oregon in 1947, and in California in 1948, and had paid attorneys in the latter two trials. He had shock treatments or psychiatric treatments, or both, in Massachusetts and California. In 1951 he pleaded guilty to second degree murder and was sentenced to life imprisonment; at that time he was represented by assigned counsel. He appeared to be an alert witness.
While serving the life sentence, on July 30, 1957, Guillemette attempted to escape from Massachusetts Correctional Institution, Concord, and he was indicted for the crimes of armed assault with intent to murder and for assault with a dangerous weapon, allegedly committed in the course of the attempted escape. On September 20, 1957, he pleaded guilty to the indictments and was sentenced to imprisonment for concurrent terms of fifteen to twenty years and eight to ten years, to be served from and after the life sentence. No transcript of the 1957 proceeding has been found. It was then the prevailing practice for the clerk to read aloud to the prisoner the sentence on each indictment.
On September 20, 1957, Guillemette was interviewed by an assistant district attorney for about five minutes in a detention room and then taken into the court room. There was no evidence that he represented to the Judge that he was indigent and unable to hire counsel. He knew he could have an attorney at least if he paid for one. The Judge specifically inquired twice whether Guillemette wanted to have advice of an attorney, and Guillemette said he did not. The master concluded that Guillemette had not sustained the burden of showing that his pleas were not voluntarily made. He also concluded that the refusal of counsel amounted to a waiver of counsel and a consent to proceed without counsel. He inferred that the Judge knew Guillemette was without funds and that if counsel were provided it would necessarily be without charge to Guillemette.
At all times after the 1957 sentences, Guillemette was aware of the nature of those sentences. He testified that he tried to appeal them but did not get the necessary forms seasonably. He also testified that he interviewed representatives of the Massachusetts Defenders Committee in 1957 and 1962 in an effort to obtain review. But no court proceeding was filed until the present one was commenced on December 30, 1975. He was paroled from his life sentence on August 1, 1975, and began serving the two 1957 sentences on August 14, 1975. The Commonwealth has been prejudiced by the lapse of time, the death of the Judge, and the practical certainty that it would now be impossible to retry Guillemette. If the burden rests on him to show that he has not waived his constitutional claims by the delay in asserting them, he has not sustained that burden.
1. The clerk's note. The finding that Guillemette refused counsel rests on a note found in the file of the case. That note, undated and unsigned, was in the handwriting of the assistant clerk who was in the court room when the 1957 pleas were taken. It read: "Court -- Do you want an attorney? Defendant -- I don't need one. I am guilty. I do not wish one. Court at later time -- I again ask you if you want an attorney. Defendant -- I do not." The master found that the ...