COMMONWEALTH vs. FREDERICK R. LEROY, JR.

ABRAMS, J. At a de novo trial before a jury of six, see G. L. c. 218, Section 27A, the defendant, Frederick R. LeRoy, Jr., was convicted of the offense of operating a motor vehicle while under the influence of intoxicating liquor. G. L. c. 90, Section 24. General Laws c. 90, Section 24 (1) (b), provides that

Page 244

on a conviction for operating a vehicle under the influence of intoxicating liquor the defendant's license is to be revoked. Following the jury verdict and pursuant to G. L. c. 90, Sections 24 (1) (b) and (c), the defendant's license was suspended for one year. The defendant sought to avoid the loss of his license after the verdict by moving for alternative disposition under G. L. c. 90, Section 24E. The effect of a disposition pursuant to G. L. c. 90, Section 24E, is that there is no conviction and, therefore, a defendant's license is not automatically revoked. The District Court judge denied this motion on the ground that he had no authority to set aside the jury verdict; he noted, however, that if he did possess such authority he would, in his discretion, allow the motion. It is from the denial of this motion that the defendant appeals to this court. See G. L. c. 218, Section 27A. We affirm the decision of the District Court judge.

General Laws c. 90, Section 24D, provides that a person convicted of or charged with operating a motor vehicle while under the influence of intoxicating liquor may be placed on probation for one year and shall as a condition of probation be assigned to a driver alcohol education program; the establishment of such program is also provided for by G. L. c. 90, Section 24D. General Laws c. 90, Section 24E, as appearing in St. 1975, c. 505, Section 2, provides that "[w]here a person has been charged with operating a motor vehicle under the influence of intoxicating liquor, and where the case has been continued without a finding and such person has been placed on probation with his consent and where such person is qualified for disposition under ... [G. L. c. 90, Section 24E], a hearing shall be held by the court at any time after sixty days but not later than ninety days from the date where the case has been continued without a finding to review such person's compliance with the program ordered as a condition of probation [under G. L. c. 90, Section 24D] and to determine whether dismissal of the charge is warranted.... If the judge finds sufficient basis to conclude that said person has satisfactorily completed or is satisfactorily complying with said program the judge may enter a dismissal of the charge."

Page 245

The defendant first contends that under G. L. c. 90, Sections 24, 24D, and 24E, the District Court judge did possess the authority to order the alternative disposition requested by him. We disagree. Section 24 (1) (b), provides for automatic revocation of a defendant's license on conviction, [Note 1] and Section 24 (1) (d), as amended by St. 1955, c. 198, Section 2, states that "a person shall be deemed to have been convicted if he pleaded guilty or nolo contendere or was found or adjudged guilty by a court of competent jurisdiction, whether or not he was placed on probation without sentence or under a suspended sentence or the case was placed on file ...." The jury verdict of guilty satisfied this definition of "conviction" and required revocation of the defendant's license. Under G. L. c. 90, Section 24E, two prerequisites for the alternative disposition sought by the defendant are that "a person has been charged with operating a motor vehicle under the influence of intoxicating liquor, and ... [that] the case has been continued without a finding." The defendant's case was not continued without a finding; rather, a jury found him guilty of the charge. Thus, each of these sections taken alone and both of them construed together indicate that a judge has no authority to order the method of disposition which would not result in revocation of a defendant's license once a defendant has been found guilty of the offense charged. See J.R. Nolan, Criminal Law Section 557 (1976).

The defendant next argues that this construction of the statute denies him equal protection of the law. He maintains that there is no rational basis for distinguishing

Page 246

between those persons who are tried by a jury and are therefore ineligible for the alternative disposition sought in this case since the jury can only convict or acquit and those persons who are tried before a judge and are thus eligible for the alternative disposition. We find no merit in this claim. There is no constitutional equal protection right that such a method of disposition be available to all. See Healy v. First Dist. Court of Bristol, 367 Mass. 909 (1975). And the possibility that a more severe punishment might be accorded to those who choose to be tried by a jury does not constitute an invidious classification. See North Carolina v. Pearce, 395 U.S. 711, 722-723 (1969). See also Brady v. United States, 397 U.S. 742 (1970).

The defendant finally argues that, since he can only receive the disposition he seeks if he chooses to be tried by a judge, the statute infringes his right to a jury trial. We disagree. Not all government imposed choices in the criminal process which discourage the exercise of rights are impermissible. Chaffin v. Stynchcombe, 412 U.S. 17, 29-35 (1973). See Gavin v. Commonwealth 367 Mass. 331 (1975); Mann v. Commonwealth, 359 Mass. 661 (1971); Walsh v. Commonwealth, 358 Mass. 193 (1970). The 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. See Santobello v. New York, 404 U.S. 257 (1971); Brady v. United States, 397 U.S. 742 (1970). See also Bordenkircher v. Hayes, 434 U.S. 357 (1978); Commonwealth v. Simpson, 370 Mass. 119, 126-127 (1976). The fact that counsel could be obtained only at a type of proceeding in which the defendant risked greater penalties has been found permissible, Middendorf v. Henry, 425 U.S. 25, 46-48 (1976), and the possibility that a greater sentence might be imposed on retrial was not found to chill the defendant's right to appeal his conviction. Chaffin v. Stynchcombe, supra. See Mann v. Commonwealth, supra at 667. These decisions, and particularly those sustaining the validity of guilty pleas in which cases the defendants waived not

Page 247

only the right to a jury trial but also the right to any trial, the privilege against self-incrimination and the right to confront one's accusers, see Middendorf v. Henry, supra at 47; Boykin v. Alabama, 395 U.S. 238, 243 (1969), lead us to conclude that the choice imposed on a defendant by G. L. c. 90, Sections 24 and 24E, does not unconstitutionally infringe on the defendant's right to a jury trial.

We think it appropriate to mention that there is no issue before us as to the power of a judge to allow a motion for a new trial if sufficient grounds are presented. See G. L. c. 278, Section 29; c. 218, Section 27A. The Commonwealth suggests, and we agree, that, after a jury verdict, trial judges are powerless to alter that verdict except by a motion for a new trial or by a motion for a directed verdict of not guilty. [Note 2] G. L. c. 278, Sections 11, 29. G. L. c. 218, Section 27A. To the extent that the defendant is suggesting that the sanction of loss of license should be discretionary with the judge after conviction by a jury as well as prior to conviction by a continuance without a finding, his suggestion is a major policy change which must be addressed to the Legislature.

We conclude that there was no error in the judge's denial of the defendant's motion for alternative disposition.

Judgment affirmed.