Commonwealth v. Francis (Lawyers Weekly No. 10-129-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12118 COMMONWEALTH vs. ROGER D. FRANCIS. Plymouth. April 3, 2017. – August 11, 2017. Present: Gants, C.J., Lenk, Hines, Lowy, Budd, & Cypher, JJ. Practice, Criminal, Plea. Indictment found and returned in the Superior Court on May 11, 1967. 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. 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 […]