69 Mass. App. Ct. 526

Commonwealth vs. Beverly Taylor

No. 06-P-1037.

Middlesex.

March 15, 2007.

July 9, 2007.

Present: Lenk, Green, & Sikora, JJ.

Allison J. Koury for the defendant.

KerryAnne Kilcoyne, Assistant District Attorney, for the Commonwealth.

Green, J.

When a defendant who has waived trial by jury in the District Court admits to facts sufficient to support convictions on the charged offenses, but elects not to proceed with entry of guilty pleas, must the court advise the defendant that she has the right either to revoke her jury waiver or to proceed to trial before a different judge? We conclude that no statute or court rule imposes such an obligation on the court without a request by the defendant or her counsel, and accordingly affirm the defendant’s convictions.

Background. The defendant was arraigned in the Newton District Court on April 15, 2005, on charges of uttering a false check, see G. L. c. 267, § 5, and larceny of property over $250, see G. L. c. 266, § 30(1). On the same day, the defendant entered pleas of not guilty. On October 26, 2005, after an appropriate col*527loquy, the defendant waived her right to a jury trial, and the case was continued to December 5, 2005, for a bench trial.

On December 5, 2005, the defendant appeared for trial with appointed counsel. After some equivocation, the defendant indicated her desire to change her plea to guilty as to both charges, and the judge conducted a colloquy to assess whether her decision to change her pleas was knowing and voluntary. The colloquy progressed through a recitation by the Commonwealth of the evidence on which it would rely to prove the defendant’s guilt, and the defendant’s affirmative response to the judge’s question, “Is that what happened?” However, before the colloquy concluded, the defendant balked in response to the judge’s question, “Do you want to enter an admission to sufficient facts in this case?” The judge thereupon terminated the colloquy and, following a brief recess, conducted a jury-waived trial. The judge found the defendant guilty of both charges, and the defendant appealed.

Discussion. The defendant’s principal claim on appeal is that, having heard the defendant’s admission of facts sufficient to support her convictions, the judge should have given the defendant an opportunity to revoke her previous jury waiver, or alternatively to have her case tried before a different judge, when the defendant elected to withdraw the tender of her guilty pleas.1 In support of her claim, the defendant relies principally on the provisions of G. L. c. 218, § 26A, and Dist./Mun.Cts.R.Crim.P. 4(e).2

General Laws c. 218, § 26A, as amended by St. 1992, c. 379, *528§ 139, provides, so far as pertinent to the defendant’s argument, as follows:

“Where the defendant has properly filed a waiver and consented to be tried without a jury, as hereinbefore provided, trial shall proceed in accordance with the provisions of law applicable to jury-waived trials in the superior court; provided, however, that at the option of the defendant, the trial may be before a judge who has not rejected an agreed recommendation or dispositional request made by the defendant pursuant to the provisions of section eighteen of chapter two hundred and seventy-eight.”3

We consider the defendant’s argument to be governed in all material respects by the holding in Commonwealth v. Armand, 411 Mass. 167, 173-175 (1991). The circumstances in that case (which the defendant did not acknowledge in her brief) were quite similar to those in the present case. On December 13, 1989, the defendant (who was represented by counsel) executed a written waiver of his right to a jury trial. Id. at 172. On January 22, 1990, the day scheduled for trial, the defendant and the prosecution agreed on a joint recommendation for disposition and sentence. However, after reviewing the police report, the judge stated that he would not accept the proposed recommendation *529and that the trial would take place immediately. Id. at 172-173. The defendant’s trial counsel neither moved to revoke the defendant’s previous jury waiver nor objected to the case going to trial before the same judge. Following the trial, which resulted in a conviction, the defendant moved to “revoke filing of jury waiver and request trial by jury.” Ibid. The court rejected the defendant’s contention that, at the time the judge refused to accept the agreed disposition and sentence recommendation, he was required to afford the defendant an opportunity to revoke his jury waiver. Id. at 174-175.4

At oral argument, the defendant sought to distinguish Armand from the present case by observing that the judge in Armand did not hear the defendant admit to sufficient facts before proceeding to preside over a jury-waived trial as the sole finder of fact. The distinction is of no assistance to the defendant’s cause, however, because the statute draws no such distinction in the circumstances giving rise to a defendant’s entitlement to request trial before a jury or a different judge; if anything, the distinction merely calls into question whether the statute even applies to the defendant’s circumstances. See note 3, supra.

Moreover, under the plain words of the statute, the opportunity to proceed to trial before a different judge is permissive rather than mandatory, and then only at the defendant’s option. There is no requirement under the statute that a defendant’s election to forgo that opportunity be made by affirmative act or be entered on the record, much less that (as urged by the defendant) the court conduct a colloquy to advise the defendant that she has the right to request trial before a different judge. By way of comparison, in those cases which have imposed an affirmative requirement for the court to conduct a colloquy, the colloquy has typically been for the purpose of ensuring that the waiver of a right of constitutional origin is *530made knowingly and voluntarily.5 See, e.g., Commonwealth v. Morrow, 363 Mass. 601, 603-605 (1973) (guilty plea, which operates to waive right to jury trial, right against self-incrimination, and right to confront witnesses); Ciummei v. Commonwealth, 378 Mass. 504, 509-510 (1979) (waiver of jury trial); Commonwealth v. Moran, 388 Mass. 655, 659 (1983) (change of counsel).

The defendant’s attempted reliance on Dist./Mun.Cts.R. Crim.R 4(e) is inapposite, as the portion of that rule on which she relies applies by its terms only to “a District Court in which jury trials are not available and in which only one judge regularly sits.”6 The Newton District Court is not such a court, as jury trials are held in that court on Wednesdays and Thursdays of each week.7

Though represented by counsel, the defendant made no request upon the withdrawal of her pleas that she be allowed to withdraw or revoke her previous waiver of her right to a jury trial, nor did she request that her trial proceed before a different judge.8 See Commonwealth v. Armand, supra at 173. There accordingly was no error in the judge’s failure to invite the *531defendant to revoke her jury waiver or request trial before a different judge.9

Judgments affirmed.

Commonwealth v. Taylor
69 Mass. App. Ct. 526

Case Details

Name
Commonwealth v. Taylor
Decision Date
Jul 9, 2007
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69 Mass. App. Ct. 526

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Massachusetts

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