COMMONWEALTH vs. LINDA PELLETIER.

DOERFER, J. The defendant, a paralegal at a Boston law firm, stole over $650,000 of client trust funds. She pleaded guilty on January 27, 2000, to three counts of larceny and two counts of uttering. On one count of uttering and two counts of larceny she was sentenced to consecutive sentences of two years in a house of correction. On one count of uttering the judge (plea judge) sentenced her to a consecutive term of probation for four years. The judge then placed the remaining larceny indictment (fifth indictment) on file with the defendant's consent. Other pending indictments were placed on file without a change of plea.

In connection with her original pleas of guilty, the defendant and the Commonwealth entered into a written plea agreement

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which was filed with the court. In substance, pursuant to the plea agreement the parties agreed that the defendant should be incarcerated for three years and that she should not request to be released on parole "until she ha[d] completed three years of incarceration." Pursuant to paragraph seven of the plea agreement, the fifth indictment was placed on file with a change of plea to guilty on the understanding that the district attorney could move to bring that indictment forward and request a sentence be imposed to ensure that the defendant served three full years of incarceration. [Note 1], [Note 2] On February 13, 2002, without notice to the district attorney, the defendant was granted parole after having served only two years of her sentence.

On September 11, 2002, the Commonwealth filed a motion to bring the case that had been placed on file (with a change of plea to guilty) forward for sentencing. After a hearing on April 9, 2003, a Superior Court judge (motion judge) allowed the motion and, after a sentencing hearing, sentenced the defendant to one year to one year and a day in State prison.

Enforceability of the plea agreement. The agreement in question was between the Commonwealth and the defendant. The court was not a party. Nevertheless, the judge had the authority to follow the recommendation that the Commonwealth was bound by the agreement to make if, in his discretion, the recommendation was a sound one. The motion judge, in following the Commonwealth's recommendation, was not, as argued by the defendant, imposing a "sentence" issued by the plea judge, but rather was imposing a sentence that he deemed complied with the intent of the plea judge and the parties to the agreement. [Note 3] A judge should give due regard to a plea agreement. See Commonwealth

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v. Santiago, 394 Mass. 25 , 28 (1985). As occurred here, the appropriate place for enforcement of a plea agreement is the underlying case. Doe v. District Attorney for the Plymouth Dist., 29 Mass. App. Ct. 671 , 676-677 (1991). Although claims for enforcement of a plea agreement are usually made by a defendant who alleges that he has performed or relied to his detriment on the agreement, id. at 673, there is every reason to enforce a plea agreement against a defendant where, as here, the Commonwealth has made concessions in a recommendation with aspects favorable to the defendant, which the sentencing judge adopted. [Note 4] See Commonwealth v. Lima, 29 Mass. App. Ct. 490 , 498 (1990); Smith, Criminal Practice and Procedure § 1208, at 710 & 712 n.1.10 (Supp. 2004).

The judge had the power to bring forward an indictment which had been placed on file with a change of plea and impose a sentence. See Commonwealth v. Bianco, 388 Mass. 358 , 364-365, 370 (1983). It was perfectly appropriate for the judge to use this mechanism on the motion of the district attorney to enforce the plea agreement between the defendant and the Commonwealth.

By imposing a sentence on a filed case, the judge's action did not, as argued by the defendant, interfere with the executive function of the parole board. Cf. Commonwealth v. Amirault, 415 Mass. 112 , 117 (1993). This is not a case where a judge is nullifying a discretionary act of the parole board. The judge did not take any action relating to any sentence being served by the defendant over which the parole board had jurisdiction.

Judgment affirmed.