Supreme Judicial Court of Massachusetts, Plymouth
Heard: April 3, 2017.
review by this court, 355 Mass. 108 (1969), a motion for a
new trial, see 411 Mass. 579 (1992), and the withdrawal of a
plea of guilty and a second trial, see 450 Mass. 132 (2007),
a motion for a new trial, filed on August 5, 2013, was heard
by Linda E. Giles, J.
request for leave to appeal was allowed by Botsford, J., in
the Supreme Judicial Court for the county of Suffolk.
E. Lee, Assistant District Attorney, for the Commonwealth.
W. O'Brien for the defendant.
Present: Gants, C.J., Lenk, Hines, Lowy, Budd, & Cypher,
Commonwealth claims that an order granting the specific
performance of a plea agreement constituted error. We agree.
1967, the defendant, Roger Francis, was convicted of murder
in the first degree for killing his fifteen year old girl
friend. See Commonwealth v.
Francis, 355 Mass. 108, 108-109 (1969). In 1989, a
Superior Court judge allowed the defendant's motion for a
new trial because of errors in the reasonable doubt jury
instruction given in his 1967 trial. Thereafter, this court,
considering the Commonwealth's appeal on report of a
single justice pursuant to the gatekeeper provisions of G. L.
c. 278, § 33E, affirmed. Commonwealth
v. Francis, 411 Mass. 579, 580 (1992).
1994, the defendant reached a plea agreement with the
Commonwealth: The defendant would plead guilty to murder in
the second degree in exchange for the opportunity to
immediately seek parole, which the Commonwealth would not
oppose. If the parole board declined to grant the
defendant parole, the agreement allowed the defendant to
withdraw his guilty plea and proceed to trial on the murder
in the first degree charge. After the plea agreement had been
reached, the defendant pleaded guilty on May 25, 1994, before
a Superior Court judge (plea judge). At the plea hearing, the
defendant's counsel made representations that there was
an understanding between the parole board and the defendant
that the defendant would not be required to be in custody to
be considered for parole. To effectuate the understanding as it
was represented,  the plea judge -- over the
Commonwealth's objection -- stayed the execution of the
sentence on the charge of murder in the second degree while
the defendant's parole application was being considered.
The parole hearing was scheduled for August, 1994.
the scheduled parole hearing, the parole board informed the
parties and the plea judge of its position that pursuant to
the terms of G. L. c. 127, § 133A,  the defendant had
to be in custody in order for the parole board to have
jurisdiction over him. Because the defendant disagreed with
returning to custody, the August parole hearing was canceled.
September, 1994, in response to the parole board's
position, the plea judge issued a revised order that would
terminate the stay of the defendant's sentence once the
parole board commenced its hearing. The order was designed to
accommodate the defendant's request to avoid custody.
parole hearing was rescheduled for March, 1999. This hearing was
canceled in part due to the defendant's resistance to
returning to custody. The parole hearing was rescheduled for
March, 2000. Because the defendant would have to return to
custody to have his parole hearing, he filed a ...