COMMONWEALTH vs. FRANK R. DAMIANO.

GREANEY, J. On May 20, 1977, Damiano was arraigned on thirty-seven indictments charging him with unnatural sexual intercourse with, and abuse of, children under age sixteen. On September 26, 1977, he offered pleas of guilty

Page 616

to all the indictments before the judge of the Superior Court who had been assigned the trial (trial judge). This judge accepted his pleas to twenty-three indictments and sentenced him to twenty-three concurrent life terms. The remaining fourteen indictments were dismissed as duplicitous. On November 18, 1981, Damiano filed a motion pursuant to Mass.R.Crim.P. 30, 378 Mass. 900 (1979), challenging his convictions on the grounds that the pleas were coerced and the sentences imposed in violation of his rights under the Fifth and Fourteenth Amendments to the United States Constitution. Another judge of the Superior Court (motion judge) held an evidentiary hearing, [Note 1] made findings of fact and rulings of law, and denied relief. Damiano has appealed. [Note 2]

The motion judge found that between June 15 and 17, 1977, the prosecutor assigned to try the case advised Damiano's counsel that he would recommend consecutive life sentences if Damiano went to trial and was convicted on more than one indictment, but concurrent life sentences if Damiano pleaded guilty. On or about June 21, 1977, the prosecutor informed Damiano's counsel that a defendant faced with related charges might receive a suspended sentence because of his cooperation with the police investigation of the so called "Revere sex ring." On or about August 24, 1977, the trial judge advised the prosecutor and Damiano's counsel, in an unrecorded lobby conference, that if Damiano pleaded guilty he would not exceed the Commonwealth's recommendation without allowing withdrawal of the pleas. Later that same day, the prosecutor informed Damiano's counsel that he had changed his recommendation on a codefendant, one Peluso, from a life sentence to a term of fifteen to twenty-five years because of the latter's cooperation and that he would consider recommending a term of twenty-two to thirty years for Damiano

Page 617

should he agree to assist the investigation. Damiano declined to provide information to the Commonwealth; the prosecutor reaffirmed his recommendation of concurrent life terms should pleas of guilty be entered. On or about September 14, 1977, at a second unrecorded lobby conference, the trial judge reiterated his intention not to exceed the prosecutor's recommendation in the event of a plea of guilty. The trial judge stated (as found by the motion judge) that "he was impressed with the candor and cooperation of the co-defendant . . . Peluso, whose plea [he] had . . . taken. [The judge] suggested that if the defendant were to cooperate with the Commonwealth by providing names and assistance, [he] would give such cooperation `consideration' when sentencing the defendant. [Damiano's counsel] pressed the judge to substantiate what he meant by `consideration,' and only at . . . defense counsel's urging, did the judge indicate that he had an eighteen to twenty year sentence in mind if defendant cooperated." [Note 3] Damiano again declined to furnish information to the police. On September 26, 1977, he tendered his pleas of guilty.

The motion judge ruled that the pleas were voluntary, notwithstanding Damiano's claim that he had been coerced by the trial judge. He also concluded that the trial judge's comments indicating a disposition to impose a lesser sentence in the event the defendant cooperated could not have created the "reasonable apprehension of vindictiveness" described by the United States Court of Appeals for the First Circuit in Longval v. Meachum, 651 F.2d 818, 820-822 (1st Cir. 1981), vacated and remanded, 458 U.S. 1102 (1982). [Note 4]

Page 618

On appeal, Damiano's several arguments raise only two questions of merit: (1) whether the trial judge's involvement in the plea negotiations coerced the guilty pleas, [Note 5] and (2) whether the sentence actually imposed was a vindictive response to Damiano's exercise of his right to remain silent rather than "cooperate" in an ongoing criminal investigation.

1. The question of coercion. It is fundamental that "a defendant, whatever his character, may not be punished for exercising his right to trial and, therefore, the fact that he has done so should be given no weight in determining his sentence." Letters v. Commonwealth, 346 Mass. 403, 405 (1963). It follows that a plea of guilty induced by a judge's threat to impose more severe punishment upon a defendant who chooses to exercise his constitutional rights is void. Id. at 406. This is not to say, however, that a judge's involvement in the plea bargaining process is a per se violation of a defendant's rights. [Note 6] While we recognize that the permissible limits of such involvement by no means approach the latitude given to prosecutors, [Note 7] the existence of a due process

Page 619

violation is established only by objective proof [Note 8] that the judge forced a guilty plea by putting the defendant on notice that he could expect more severe punishment if he insisted on a trial by jury.

We find no basis for concluding that the trial judge coerced Damiano's pleas in the sense just described. The United States Supreme Court has acknowledged the legitimacy of plea bargaining and rejected the "notion that a guilty plea is involuntary in a constitutional sense simply because it is the end result of the bargaining process." Our cases have recognized that a certain degree of coercion (in the sense of psychological or emotional pressure) is endemic to any system which asks a person to forgo certain rights in order to be spared certain penalties. See Commonwealth v. Leate, 367 Mass. 689, 694 (1975); Commonwealth v. Tirrell, 382 Mass. 502, 510 (1981). In this context, "[t]he possibility that a greater penalty will result from a jury trial than from the entry of a guilty plea has not been found to infringe impermissibly on the right to a jury trial." Commonwealth v. LeRoy, 376 Mass. 243, 246 (1978), and cases cited. There is no basis to conclude that the bare fact of the

Page 620

communication to the judge of the sentencing alternatives being discussed by counsel could have had a coercive effect.

The trial judge's statement that he would not exceed the prosecutor's recommendation without first permitting Damiano to withdraw his pleas (a procedure subsequently approved by Mass.R.Crim.P. 12[c][2][A], 378 Mass. 868 [1979]), likewise could not have intimidated the defendant. This statement was merely informational and conveyed no suggestion that the trial judge had committed himself in advance to two sentences with the imposition of one or the other dependent upon Damiano's plea decision.

The trial judge's subsequent statement that he would impose a more lenient sentence if the defendant chose to cooperate could not have coerced the pleas. Damiano remained free at all times to reject the notion of cooperation (as he steadfastly did) and to insist upon having a jury trial. The risk of enhanced punishment because of a failure to cooperate remained the same whether Damiano chose a plea or a trial. Since that risk would not have been obviated by a decision to plead, it could not have unduly influenced Damiano's decision to admit his guilt. Moreover, nothing said by the judge about cooperation could have led Damiano to believe either that he could not get a fair trial because the judge thought a trial would be futile or that the judge would be biased against him at trial.

In sum, the criticized lobby conference did nothing more than crystallize several choices for Damiano which were intended to assist him in making an informed decision as to his plea. None of the choices imposed pressures beyond those normally affecting a defendant in his situation. See Commonwealth v. Leroy, supra; Commonwealth v. Tirrell, supra; Commonwealth v. Mendez, 8 Mass. App. Ct. 914, 915 (1979). There is no evidence that Damiano was peculiarly susceptible to these normal pressures, such that they might have exercised an unusual coercive effect upon him as an individual. Although we acknowledge merit in Damiano's characterization of the powerful influence a trial judge may exert on the mind of a criminal defendant, we

Page 621

conclude that he was subjected only to normal pressures intrinsic to the plea bargaining process and that he was not affected by any special susceptibility to those pressures which would have left him "so gripped by fear . . . or hope of leniency that he did not or could not, with the help of counsel, rationally weigh the advantages of going to trial against the advantages of pleading guilty." Commonwealth v. Tirrell, 382 Mass. at 510, quoting from Brady v. United States, 397 U.S. 742, 750 (1970). See United States ex rel. Robinson v. Housewright, 525 F.2d 988, 990 (1975). See also United States ex rel. Bullock v. Warden, 408 F.2d 1326, 1330 (1969), cert. denied, 396 U.S. 1043 (1970); Brown v. Peyton, 435 F.2d 1352, 1356-1357 (1970), cert. denied, 406 U.S. 931 (1972); Flores v. Estelle, 578 F.2d 80, 85 (1978), cert. denied, 440 U.S. 923 (1979).

This conclusion is further supported by the trial judge's colloquy with Damiano to ascertain whether his pleas were made knowingly and voluntarily. See Boykin v. Alabama, 395 U.S. 238, 243-244 (1969); Parker v. North Carolina, 397 U.S. 790, 796-798 (1970); Brady v. United States, 397 U.S. at 748; Commonwealth v. Morrow, 363 Mass. 601, 603-605 (1973); Commonwealth v. Taylor, 370 Mass. 141, 143-145 (1976). The record of this hearing (which covers fifty-six transcript pages) indicates Damiano's awareness of his situation, [Note 9] legal distinctions, [Note 10] and available options. The judge gave the defendant a detailed and deliberative explanation

Page 622

of all his rights and the judge's sentencing function. [Note 11] A factual basis was established for each change. Independent colloquy with the defendant's trial counsel furnishes additional objective proof that Damiano entered his pleas freely and voluntarily. [Note 12] In short, the plea hearing reveals straightforward answers by the defendant to pertinent questions "in words consistent with understanding and voluntariness." Commonwealth v. Taylor, 370 Mass. at 145. See Commonwealth v. Curry, 6 Mass. App. Ct. 928 (1978); Commonwealth v. Thomas, 10 Mass. App. Ct. 922, 923 (1980). See also Calabrese v. United States, 507 F.2d 259, 260 (1st Cir. 1974). [Note 13]

Finally, we have expanded our consideration of the case to assume that the recent decision in United States v. Goodwin,

Page 623

457 U.S. 368 (1982), may be applicable to the facts. We conclude, for the reasons previously stated, that the chance of enhanced punishment after a jury trial or rejection of cooperation would not support a "presumption" of coercion based on a "`realistic likelihood of "vindictiveness,"'" id. at 384. [Note 14]

Page 624

2. The question of vindictiveness in the sentence. Damiano argues that his sentences were imposed vindictively in retaliation for his refusal to cooperate. The trial judge undoubtedly considered the absence of cooperation as a negative factor in his assessment of a proper sentence. Damiano contends that this amounts to vindictive retribution for his exercise of his Fifth Amendment right to silence.

Although Damiano knew that the existence of cooperation might be considered in sentencing, neither he nor his trial counsel offered any explanation to the trial judge for his silence. If Damiano "believed that his failure to cooperate was privileged, he should have said so at a time when the sentencing court could have determined whether his claim was legitimate." Roberts v. United States, 445 U.S. 552, 560 (1980). See Commonwealth v. Wright, 10 Mass. App. Ct. 907, 907-908 (1980). The privilege against self-incrimination "is not self-executing." Roberts v. United States, supra at 559. "At least where the Government has no substantial reason to believe that the requested disclosures are likely to be incriminating, the privilege may not be relied upon unless it is invoked in a timely fashion." Ibid. All pending charges against Damiano were being concluded, and no indication exists that the prosecution was holding back other charges. As a consequence, the defendant had no reason to infer that the information sought would further incriminate him. In the circumstances, the trial judge was not under any burden to perceive an uninvoked privilege against self-incrimination even though that privilege, if reasonably grounded and timely claimed, may have mitigated the sentence. Nor was the judge required to

Page 625

speculate on other reasons for lack of cooperation, which, if expressed, might have provided some extenuation.

The question remains whether "cooperation" may be considered upon sentencing. It clearly may. "Unless his silence is protected by the privilege against self-incrimination . . . the criminal defendant no less than any other citizen is obliged to assist the authorities . . . . By declining to cooperate, [a defendant] reject[s] an obligatio[n] of community life that should be recognized before rehabilitation can begin . . . Few facts available to a sentencing judge are more relevant to the likelihood that [a defendant] will transgress no more, . . . and the degree to which he does not deem himself at war with his society." Roberts v. United States, 445 U.S. at 558. (Citations omitted.) The legal concept of vindictiveness is not implicated in a sentencing decision unless a defendant is punished for doing something he had a right to do. The trial judge could properly have considered Damiano's lack of cooperation in passing sentence. Moreover, it appears that the trial judge fairly considered all arguments of Damiano's trial counsel for alternative sentences and, in addition to the cooperation issue, grounded the sentence upon "the probation folder," Damiano's "history . . . which indicates, in addition to these offenses . . . a long familiarity with the law and violation of like offenses," and the gravity of the "conduct which calls for . . . punishment which will see that he is never put in a position to commit such acts again." Against this record, the imposition of concurrent life sentences is neither punitive nor an abuse of discretion.

The order denying the motion for postconviction relief is affirmed.

So ordered.