COMMONWEALTH vs. RICARDO BARBOSA.

KINDER, J. A Superior Court jury convicted the defendant of rape in violation of G. L. c. 265, § 22 (b). Following a bifurcated trial before a second jury, the defendant was convicted of being a habitual criminal [Note 1] and was sentenced to an enhanced penalty of twenty years in State prison. On appeal, the defendant claims that (1) the prosecutor's withdrawal of a plea offer was vindictive and violated due process, (2) the judge's refusal to give a so-called Bowden instruction [Note 2] was an abuse of discretion, and (3) the denial of the defendant's request to represent himself in the habitual criminal trial was structural error. [Note 3] We agree that the judge erred in denying the defendant his constitutional right to represent himself at the habitual criminal trial and remand the case for a new trial on that indictment. Otherwise, we affirm.

Discussion. 1. Prosecutorial vindictiveness. The defendant was indicted in May of 2014. By April of 2015, he was representing himself with the assistance of standby counsel. [Note 4] At some time between April and August of 2015, the parties discussed a proposed plea agreement involving a joint sentencing recommendation of from four years to four years and one day in State prison on the rape charge in exchange for a dismissal of the habitual offender indictment. In August of 2015, the defendant appeared before a judge to plead guilty pursuant to that agreement. The plea was rejected after the defendant refused to admit his guilt. [Note 5]

Eight months later, the defendant appeared with counsel at a pretrial hearing before a second judge and expressed a desire to plead guilty pursuant to the terms of the same agreement. That offer, however, had been withdrawn by the prosecutor. The Commonwealth's offer at the time of the pretrial hearing was a from five to seven-year sentence on the rape charge and a dismissal of

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the habitual offender indictment. The prosecutor explained to the judge that the original offer was withdrawn when the defendant refused to plead guilty, and that the new recommendation was based on the circumstances of the offense [Note 6] and the defendant's criminal history. [Note 7] At a subsequent status conference before the plea judge, the prosecutor stated that one of the reasons he had initially proposed the four-year sentence was because the defendant was representing himself at the time and "would be cross-examining his own victim" at trial.

Seizing on this last statement, the defendant claims on appeal that the prosecutor impermissibly changed his offer because the defendant exercised his right to counsel. [Note 8] Specifically, he argues that "[t]he trial judge should have found prosecutorial vindictiveness, permitted [the defendant] the benefit of his August 2015 bargain, and allowed [the defendant]'s Alford plea pursuant to the 2015 recommendation," see North Carolina v. Alford, 400 U.S. 25 (1970), and that his failure to do so was structural error. [Note 9] We disagree.

"To punish a person because he has done what the law plainly allows him to do is a due process violation 'of the most basic sort.'" United States v. Goodwin, 457 U.S. 368, 372 (1982), quoting Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978). However, a defendant seeking to establish a due process violation for prosecutorial vindictiveness has a heavy burden to demonstrate a high likelihood of actual vindictiveness that does not "unduly undermine normal prosecutorial discretion." Commonwealth v. Rodriguez, 476 Mass. 367, 374 (2017), quoting Commonwealth v. Johnson, 406 Mass. 533, 537 (1990). No Massachusetts appellate court has found a due process violation based

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on prosecutorial vindictiveness in the context of plea bargaining. See Commonwealth v. Damiano, 14 Mass. App. Ct. 615, 623 n.14 (1982). We decline to do so here, for two reasons. First, "decisions not to charge, [or] to offer a plea bargain . . . are executive, not judicial, decisions." Commonwealth v. Bernardo B., 453 Mass. 158, 176 (2009) (Spina, J., dissenting). See Commonwealth v. Mahar, 442 Mass. 11, 27 (2004) (Sosman, J., concurring) ("courts do not order prosecutors to put the same offer back on the table or enforce an offer that has been withdrawn"). Second, "in the 'give-and-take' of plea bargaining, there is no . . . element of punishment or retaliation so long as the accused is free to accept or reject the prosecution's offer." Commonwealth v. Tirrell, 382 Mass. 502, 509 (1981), quoting Bordenkircher, supra. Here, the defendant was free to, and did, reject the prosecutor's offer of from five to seven years. Accordingly, there was no element of punishment or retaliation, and, therefore, no prosecutorial vindictiveness. See Commonwealth v. Souza, 390 Mass. 813, 821 (1984) (no evidence of vindictiveness where defendant free to accept or reject plea offer and no charge brought arbitrarily).

Moreover, we discern nothing improper in the prosecutor's withdrawal of his initial offer based on the defendant's refusal to admit his guilt at the aborted change of plea hearing. "A district attorney is vested with wide discretion in determining whether to prosecute an individual," (quotation and citation omitted), Commonwealth v. Wilbur W., 479 Mass. 397, 409 (2018), "just as he has wide discretion in determining whether to discontinue a prosecution once commenced" (citation omitted), Commonwealth v. Latimore, 423 Mass. 129, 136 (1996). The defendant's refusal to admit guilt during the plea colloquy was objective information that justified an increased sentence recommendation. [Note 10] Cf. Goodwin, 457 U.S. at 374.

2. Bowden instruction. At trial, the defendant argued that deficiencies in the police investigation justified giving a Bowden instruction to the jury. [Note 11] See Commonwealth v. Bowden, 379 Mass. 472, 485-486 (1980). On appeal, the defendant claims that

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the trial judge's decision not to give the instruction was prejudicial error.

"As we have explained repeatedly, a judge is not required to instruct on the claimed inadequacy of a police investigation. Bowden simply holds that a judge may not remove the issue from the jury's consideration" (quotations and citations omitted). Commonwealth v. Wilkerson, 486 Mass. 159, 178 (2020). Here, the judge did not remove the issue from the jury. The defendant was allowed to, and did, argue to the jury that the investigation was inadequate. There was no error.

3. Right of self-representation. Immediately after the defendant was convicted of rape, the defendant's trial counsel [Note 12] requested a continuance of the habitual criminal portion of the bifurcated trial because he was unprepared. The trial judge indicated that he was inclined to deny the request, because "[t]his is a case that's been before this [c]ourt many times" and it "had other trial dates scheduled." The judge further noted that the question to be litigated "is a fairly straight forward one . . . it's the identity of [the defendant] as the person who has the requisite number of convictions." In the end, the judge allowed the continuance after the defendant stated that he wished to represent himself.

When the defendant appeared for trial on the habitual criminal indictment two months later, trial counsel again asked for a continuance, expressing confusion about the defense strategy that the defendant wanted him to employ. The defendant repeated his request to represent himself. Both requests were denied and the trial proceeded with the defendant represented by counsel. Ultimately, the jury convicted the defendant of being a habitual offender.

On appeal, the defendant claims that the denial of his right to represent himself in the habitual criminal trial was structural error. "The right to conduct one's own defense in a criminal case is guaranteed by both the Massachusetts Constitution and the United States Constitution" (footnotes and citation omitted). Commonwealth v. Conefrey, 410 Mass. 1, 10 (1991). See Faretta v. California, 422 U.S. 806 (1975); Commonwealth v. Mott,

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2 Mass. App. Ct. 47, 50-52 (1974). A defendant is entitled to represent himself as long as his choice "is unequivocal, . . . voluntarily and knowingly made, . . . asserted in a timely manner, . . . and not sought for an improper purpose," Conefrey, supra at 11, such as delaying or disrupting the trial, see Commonwealth v. Jackson, 376 Mass. 790, 796 (1978); United States v. Dougherty, 473 F.2d 1113, 1124 (D.C. Cir. 1972).

The judge appears to have concluded that the defendant's request was not timely because it came at the midpoint of a bifurcated trial. The judge told the defendant, "[W]e're in the middle of the trial, so I'm denying your right to proceed pro se." However, G. L. c. 278, § 11A, governing habitual criminal trials, provides that if a defendant pleads not guilty to an indictment alleging that he is a habitual criminal, "he shall be entitled to a trial by jury of the issue of conviction of a prior offense, subject to all of the provisions of law governing criminal trials" (emphasis added). The Supreme Judicial Court has held that this language entitles a defendant to counsel in the habitual criminal phase of a bifurcated trial, even when the defendant elected to represent himself at the trial of the underlying offense. Commonwealth v. Kulesa, 455 Mass. 447, 456-457 (2009). We see no principled reason why a defendant could not exercise his constitutional right to represent himself at the same point. Because the defendant had a constitutional right to represent himself in the habitual criminal trial, it was error for the judge to deny the request because it came at the midpoint of a bifurcated trial. [Note 13]

We are not persuaded by the Commonwealth's contention that the defendant's request to represent himself was properly denied because it was equivocal. When defense counsel asked for a continuance following the defendant's rape conviction, the defendant stated, "Your Honor, I'll proceed pro se. [M]y counsel, he can sit down and stand by, Your Honor. I'll proceed pro se. I know everything about a habitual offender enhancement, collateral offender law. I'll proceed pro se, and I'll represent myself." Two months later, the defendant said, "Excuse me, Your Honor. With all due respect, I'm going to be pro se -- pro se for the

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habitual criminal . . . part of the . . . trial." There was nothing equivocal in the defendant's requests to represent himself.

We recognize that the experienced trial judge was attempting to resolve the habitual criminal trial in a way that was efficient and fair to the defendant. After a lengthy discussion with the defendant regarding the merits of his planned defense, the judge may well have concluded that the defendant's choice to represent himself was unwise and that the defendant's interests would be better served with professional representation. [Note 14] Nevertheless, "even in cases where the accused is harming himself by insisting on conducting his own defense, respect for individual autonomy requires that he be allowed to go to jail under his own banner if he so desires and if he makes the choice with eyes open" (quotations and citation omitted). Mott, 2 Mass. App. Ct. at 52. On this record, where the defendant's assertion of his right to represent himself was timely and unequivocal, we are constrained to conclude that it was error to deny the defendant his right to represent himself without further inquiry. [Note 15] Because the error was structural, it requires automatic reversal. See Commonwealth v. Francis, 485 Mass. 86, 104 (2020), petition for cert. filed, U.S. Supreme Ct., No. 20-6731 (Dec. 24, 2020); Conefrey, 410 Mass. at 13.

Conclusion. The judgment of conviction of rape is affirmed. The judgment of conviction of being a habitual criminal is vacated and the verdict on that indictment is set aside. Because the habitual criminal conviction was the basis for the sentence on the substantive rape conviction, we also vacate the sentence on that offense. The case is remanded to the Superior Court for a new trial on the habitual criminal indictment, and for resentencing on the rape conviction following resolution of the habitual criminal indictment.

So ordered.