COMMONWEALTH v. DOYLE (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant pleaded guilty to a second offense of operating a motor vehicle while under the influence of intoxicating liquor (OUI). During the plea hearing, a District Court judge, over the prosecutor's objection, sua sponte dismissed a second count in the complaint, which had charged the defendant with reckless operation of a motor vehicle.² On appeal, the Commonwealth claims the judge's dismissal of this second count was improper. We vacate the order of dismissal and remand for further proceedings.

“It is well established that the judiciary does not have the power to dismiss an otherwise legally adequate complaint or indictment prior to verdict, finding, or plea, over the objection of the prosecutor.” Commonwealth v. Manning, 75 Mass. App. Ct. 829, 831-832 (2009). This precept “rests on the principle of separation of powers, set forth in art. 30 of the Massachusetts Declaration of Rights, which does not ‘permit judges to substitute their judgment as to whom and what crimes to prosecute, for the judgment of those who are constitutionally charged with that duty.’ ” Id. at 832, quoting Commonwealth v. Cheney, 440 Mass. 568, 575 (2003). “Absent a legitimate basis that appears from the record, ․ sanctioned by statute or rule,” a judge may not dismiss a valid complaint over the Commonwealth's objection. Commonwealth v. Kardas, 93 Mass. App. Ct. 620, 625 (2018). See Commonwealth v. Morgan, 476 Mass. 768, 780 (2017).

Here, the record does not reflect a legitimate basis for the dismissal. Not only did the defendant not file a motion to dismiss, he was appearing in court to plead guilty to charged offenses. The judge gave two reasons for the dismissal. First, defense counsel represented that a prior judge offered to dismiss count two in consideration of the defendant's guilty plea to count one, and the judge wanted to honor what the prior judge had suggested. Although the Commonwealth disputes what the prior judge had offered,³ we need not resolve that dispute because art. 30 of the Massachusetts Declaration of Rights forbids judges to substitute their judgment as to what crimes shall be prosecuted for the judgment of prosecutors who are constitutionally charged with that responsibility. See Cheney, 440 Mass. at 575.

The judge's second justification for the dismissal was based on his finding that he did not “hear facts that would convince [him] that [the defendant] was guilty of any offense other than the operating under.” This, too, is invalid.

To prove reckless operation of a motor vehicle, in violation of G. L. c. 90, § 24 (2) (a), the Commonwealth must show that the defendant “(1) operated a motor vehicle, (2) upon a public way, (3) (recklessly or) negligently so that the lives or safety of the public might be endangered.” Commonwealth v. Flanigan, 76 Mass. App. Ct. 456, 463 (2010), quoting Commonwealth v. Duffy, 62 Mass. App. Ct. 921, 921 (2004). At the plea hearing, the prosecutor recited the facts, which included that the police responded to a two-car accident and one of the drivers was the defendant. The defendant exhibited signs of being under the influence of alcohol.⁴ The defendant told the officer that he grew impatient behind a car that was being driven slowly, so he passed the car on the right side and crashed into another car pulling out of an entranceway. The defendant stated under oath that these facts were true.

These agreed-to facts more than sufficiently set out the crime of reckless operation. Even if they did not, the result would be the same. Although judges are empowered to not accept a guilty plea for a variety of reasons, including but not limited to it not being voluntary, intelligent, or being made with a lack of capacity, see generally Commonwealth v. Hunt, 73 Mass. App. Ct. 616, 619-621 (2009), a judge may not simply dismiss a case where the Commonwealth objects. See Manning, 75 Mass. App. Ct. at 832 (during guilty plea proceedings, judge improperly dismissed one count based on insufficient facts). The order dismissing the charge of reckless operation of a motor vehicle is vacated, and the case is remanded for further proceedings consistent with this memorandum and order.

So ordered.

Vacated and remanded

FOOTNOTES

2.   The judge also found the defendant not responsible for a marked lanes violation.

3.   According to the Commonwealth, based on the prosecutor having listened to the tape of the early hearing, the prior judge did not suggest a dismissal of the charge, but merely offered to give the defendant “some consideration on the other charges.”

4.   The defendant's blood alcohol content was .19, more than twice the legal limit.