COMMONWEALTH vs. GREGORY B. TAYLOR.

QUIRICO, J. The defendant entered pleas of guilty to several indictments against him in the Superior Court, and was sentenced to terms of imprisonment to be served concurrently at the Massachusetts Correctional Institution at

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Walpole. Thereafter, he filed a motion to revise or revoke the sentences or, in the alternative, to withdraw his pleas of guilty (see G. L. c. 278, Section 29C), which motion was denied by the judge who had sentenced him. The case is before us on the defendant's bill of exceptions, his sole exception being to the denial of his motion. [Note 1] There was no error.

We summarize the relevant facts. The defendant was charged with various offenses in eleven separate indictments. [Note 2] On October 8, 1974, the defendant's counsel [Note 3] conferred with the prosecutor assigned to try the cases against the defendant in an effort to reach an agreement as to the sentence the prosecutor would recommend to the judge if the defendant entered pleas of guilty to the indictments. After the conference, the prosecutor agreed to make recommendations to the judge for the disposition of the charges in a manner resulting in an aggregate sentence to total not more than two years in the Billerica house of correction.

The defendant was informed of the agreement by his counsel, and he thereafter pleaded guilty to all of the indictments. It is alleged in the defendant's bill of exceptions, and apparently not disputed by the Commonwealth, that "[t]he agreement was the substantial inducement of the pleas, in that the defendant, on advice of counsel, had a

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reasonable expectation that the recommendations would either be accepted by the court or that the sentences imposed would in any event not materially differ from the recommendations."

On pleading guilty the defendant was questioned extensively by the judge. The matters into which the judge inquired are discussed infra. When this inquiry had been completed, the judge accepted the pleas except as to several indictments not involved in the issue presented herein. The prosecutor then recommended to the judge, as agreed, a two-year aggregate sentence in the Billerica house of correction. The judge declined to follow this recommendation, however, and instead sentenced the defendant to two terms of five to ten years and several shorter terms, all to be served concurrently in the Massachusetts Correctional Institution at Walpole, to be followed by a sentence of two years in a house of correction from and after the Walpole sentence, the two-year sentence being suspended and the defendant being placed on probation for two years.

In reviewing the propriety of a judge's acceptance of guilty pleas offered by a defendant, we employ the test formulated by the Supreme Court of the United States in Boykin v. Alabama, 395 U.S. 238 (1969). The Boykin case held, as we recently noted in Commonwealth v. Foster, 368 Mass. 100, 102 (1975), "that, as a matter of constitutional due process, a guilty plea should not be accepted, and if accepted must be later set aside, unless the record shows affirmatively that the defendant entered the plea freely and understandingly." See Commonwealth v. Morrow, 363 Mass. 601, 603 (1973).

The transcript in this case, [Note 4] pertinent portions of which

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are reproduced in the margin, [Note 5] discloses a thorough and searching inquiry directed to the defendant by the judge prior to acceptance of the pleas. This inquiry included several questions designed to determine, inter alia, (a) the factual basis for the defendant's pleas, (b) whether the pleas were voluntary, and (c) whether the defendant understood fully the constitutional rights which he waived by pleading guilty, the nature of the crimes charged, the maximum sentences which could be imposed, and the fact

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that the judge was not bound by any recommendation made by the prosecution as to the sentences to be imposed. The transcript further discloses that all of the questions propounded by the judge were answered by the defendant in words consistent with understanding and voluntariness. We conclude that the record in this case was sufficient to satisfy the requirement in the Boykin case of an affirmative showing of understanding and voluntariness. Commonwealth v. Morrow, 363 Mass. 601, 603 (1973).

The defendant urges, however, that we break new ground

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in this Commonwealth in the area of pleas and adopt, by a decision of this court, a formal rule on the subject of plea bargaining which would include a provision that when a criminal defendant pleads guilty to a crime, after being promised by the prosecution that it will recommend a certain sentence to the judge, he is entitled either to receive a sentence which substantially conforms to the recommendation or, in the alternative, to an opportunity to withdraw his pleas of guilty. The defendant concedes that the principle which he urges us to adopt by rule "is not yet generally established law," but cites a "growing list of cases in other jurisdictions" in which it seems to have been adopted. He draws our attention to a "plethora of recent proposals," including that of the Executive Committee of the Massachusetts Criminal Rules Advisory Committee, [Note 6] which favors a rule which would accomplish what the defendant asks us to do now by decision. While we are aware that the implementation of a rule of this nature would have many proponents and opponents, we are not persuaded that it is constitutionally required or that we should use the present case as the vehicle for accomplishing a result which is more appropriately one to be accomplished under the rule-making process. This is a subject which will receive our attention in due course when the final report and recommendations of the Massachusetts Criminal Rules Advisory Committee are placed before us for our consideration.

We hold that in the circumstances of this case there was no error in the denial of the defendant's motion to revise or revoke his sentences or, in the alternative, to withdraw his pleas of guilty.

Exceptions overruled.