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Commonwealth v. Francis

Supreme Judicial Court of Massachusetts, Plymouth

August 11, 2017

COMMONWEALTH
v.
ROGER D. FRANCIS.

          Heard: April 3, 2017.

         Following 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.

         A request for leave to appeal was allowed by Botsford, J., in the Supreme Judicial Court for the county of Suffolk.

          Mary E. Lee, Assistant District Attorney, for the Commonwealth.

          Leslie W. O'Brien for the defendant.

          Present: Gants, C.J., Lenk, Hines, Lowy, Budd, & Cypher, JJ.

          LOWY, J.

         The Commonwealth claims that an order granting the specific performance of a plea agreement constituted error. We agree.

         Background.

         In 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).

         In May, 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.[1] 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.[2] To effectuate the understanding as it was represented, [3] 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.

         Before 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, [4] 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.

         In 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.

         The parole hearing was rescheduled for March, 1999.[5] 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 ...


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