Com. v. Duquette

• Decision Date: 23 July 1982
• Citation: 386 Mass. 834,438 N.E.2d 334
• Parties: COMMONWEALTH v. Charles E. DUQUETTE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 334

438 N.E.2d 334

386 Mass. 834

COMMONWEALTH v. Charles E. DUQUETTE.

Supreme Judicial Court of Massachusetts Bristol.

Argued April 6, 1982.

Decided July 23, 1982.

James M. Quinn, New Bedford, for defendant.

Richard W. Foster, Asst. Dist. Atty. (Phillip L. Weiner, Asst. Dist. Atty., with him), for the Com.

Before HENNESSEY, C. J., and LIACOS, ABRAMS, NOLAN and LYNCH, JJ.

LYNCH, Justice.

The issues in this case arise from the use in the District Courts of two related procedures known as a "continuance without a finding" and an "admission to sufficient facts." The defendant contends that he was improperly convicted and sentenced by the operation of these procedures. We agree with the defendant's contentions. We also conclude, however, that the procedures serve a useful purpose, and we suggest some guidelines for their use in the future.

On August 8, 1978, a complaint was filed in the Taunton District Court charging the defendant, Charles E. Duquette, with wilful and malicious destruction of property (see G.L. c. 266, § 127). On October 17, 1978, the defendant appeared before a judge of that court and admitted to sufficient facts. His case was apparently ¹ continued without a finding on condition that he make restitution to the owner of the property. The defendant defaulted and on September 20, 1979, after a hearing, a finding of guilty was entered against him. ² He was given a suspended sentence and ordered to pay restitution of $105. The defendant then appealed, requesting a new trial in the jury of six session of the District Court.

On October 2, 1979, the defendant's case was the subject of a hearing before a second District Court judge, sitting in the jury of six session (the second judge). At this time, the charge against the defendant was reduced to wanton injury to property (see G.L. c. 266, § 127) and the second judge continued the case without a finding for one year. As conditions of the continuance, the defendant was required to pay restitution of $105 by January 2, 1980, and court costs of $100 by the end of the continuance period. The docket entries for October 2, 1979, also include the notation "ASF--sufficient facts found to warrant a finding." The case was then referred to the Taunton District Court for supervision of the defendant with regard to the conditions of the continuance.

The defendant failed to comply with the conditions of the continuance and a default warrant was issued on November 3, 1980. On March 19, 1981, a hearing was held before a third District Court judge (the third judge). At this hearing, the defendant moved that his case be restored to the jury of six trial docket and the Commonwealth moved that the defendant be adjudged guilty and sentenced. The third judge found that (1) the defendant had made no waiver, oral or written, of his right to trial by jury, (2) the defendant had not offered to change his plea of not guilty, and (3) it could not be determined "whether a statement of fact as to the allegations of the complaint was made to the justice presiding prior to the [October 2, 1979] 'continuance without finding' of the case." ³ The judge then ruled that on these facts he was required to enter a finding of guilty and sentence the defendant. He therefore denied the defendant's motion to restore the case to the trial docket, adjudged the defendant guilty, and sentenced him to pay a fine of $25 and a surfine of $6.25. ⁴ The defendant appealed to the Appeals Court and we transferred the case here on our own motion.

The two-tiered District Court system was substantially altered during the pendency of the defendant's case by the Court Reorganization Act, St.1978, c. 478, the relevant sections of which became effective on January 1, 1979. St.1978, c. 478, § 343. At the time of the defendant's October 17, 1978, appearance in the District Court, defendants in that court were tried in the first instance by a judge. No trial by jury was available. If convicted, a defendant could appeal to the Superior Court and obtain a trial de novo. This trial would be before a jury unless the defendant made a valid waiver of his right to a jury trial. See generally Costarelli, petitioner, 378 Mass. 516, 517, 392 N.E.2d 1193 (1979); K. B. Smith, Criminal Practice and Procedure § 741 (1970). In addition, a defendant in certain counties, including Bristol county, could waive his right to appeal to the Superior Court and appeal instead for trial in the jury of six session of the District Court for that county. St.1972, c. 620, § 1. See K. B. Smith, supra at §§ 741 & 758. The United States Supreme Court held, in Ludwig v. Massachusetts, 427 U.S. 618, 630, 96 S.Ct. 2781, 2788, 49 L.Ed.2d 732 (1976), that the unavailability of trial by jury at the first stage of this system did not unconstitutionally burden the right to trial by jury.

The Court Reorganization Act eliminated the right to a de novo trial in the Superior Court. Instead, a defendant is now entitled to a trial by a District Court jury of six in the first instance. Alternatively, a defendant may waive his right to a first instance jury trial and elect to be tried by a judge of the District Court. He may then appeal to the District Court jury of six session, where he will be tried by a jury unless he once again waives a jury trial and elects to be tried by a second judge. See G.L. c. 218, §§ 26A & 27A; G.L. c. 278, § 18; Costarelli, petitioner, supra 378 Mass. at 518, 392 N.E.2d 1193; K. B. Smith, supra at §§ 741-742, 764 (Supp.1979).

The application of these statutory District Court procedures to this case is complicated by the presence of two less clearly defined aspects of District Court practice, the "continuance without a finding" and the "admission to sufficient facts." Under the practice known as "continuing without a finding," a District Court judge continues a case for a lengthy period of time without making a finding of guilty. The judge may impose certain conditions on the defendant. At the end of the designated period, if the defendant has complied with the conditions of the continuance, the case is dismissed. Rosenberg v. Commonwealth, 372 Mass. 59, 63 n.5, 360 N.E.2d 333 (1977). Commonwealth v. Eaton, --- Mass.App. ---, Mass.App.Ct.Adv.Sh. (1981) 837, 419 N.E.2d 849. K. B. Smith, Criminal Practice and Procedure § 728 (1970). Compare Model Code of Pre-Arraignment Procedure § 320.5(1)(b), (c), and (d) (Proposed Official Draft 1975). Apparently these continuances are often granted when the defendant has pleaded not guilty, although some judges insist on a guilty plea. K. B. Smith, supra. In this case the continuance without a finding was used in conjunction with an "admission to sufficient facts." The issue raised by the defendant is whether, under these circumstances, the third judge could find him guilty and impose sentence when he failed to adhere to the conditions of the continuance imposed by the second judge.

An "admission to sufficient facts" or "submission to a finding" means an admission to facts sufficient to warrant a finding of guilty. K. B. Smith, supra at § 759 (Supp.1979). The use of this procedure in jury-waived sessions of the District Court is authorized by Mass.R.Crim.P. 12(a)(3), 378 Mass. 866 (1979), which provides that "[i]n a District Court jury-waived session a defendant may, after a plea of not guilty, admit to sufficient facts to warrant a finding of guilty." It has apparently been assumed that the admission to sufficient facts would be used primarily at the first tier of the District Court system by pre-1979 defendants who wished to obtain as quickly as possible a de novo jury trial at the second tier, see K. B. Smith, supra at § 660 (1970), Ludwig v. Massachusetts, 427 U.S. 618, 621, 626, 96 S.Ct. 2781, 2783, 2786, 49 L.Ed.2d 732 (1976), and by post-1979 defendants who have waived a jury trial at the first tier but wish to expedite their claim to a de novo jury trial at the second tier, see Reporter's Notes to Mass.R.Crim.P. 12(a)(3), Mass.Ann.Laws, Rules of Criminal Procedure at 202-203 (Michie/Law Co-op 1979); K. B. Smith, supra at § 759 (Supp.1979). The dispute in this case arises from the parties' use of the admission to sufficient facts at both stages of the District Court proceedings, although it is hard to see how the second stage could have been a "jury-waived session" under rule 12(a)(3) in the absence of the written waiver of a jury trial required by Mass.R.Crim.P. 19(a), 378 Mass. 888 (1979), G.L. c. 263, § 6, and G.L. c. 218, § 27A(g ).

The third judge, who found the defendant guilty, sentenced him, and denied his motion to restore the case to the jury of six trial docket, acted pursuant to a memorandum of the Chief Justice for the District Courts, dated October 15, 1979, which discussed procedures in the jury sessions of the District Courts. The relevant portions of this memorandum are set forth in the margin. ⁵ In this document the Chief Justice takes the position that when a case is continued without a finding by a judge in the second tier jury of six session, a District Court judge shall, upon finding a breach by the defendant of the conditions of the continuance, enter a guilty finding and sentence the defendant, who then has no further right to a de novo jury trial. The defendant argues that the proceedings in the jury of six session deprived him of his statutory right to a jury trial or effected an involuntary guilty plea, or both, in violation of applicable constitutional safeguards. We agree with both of these contentions.

A defendant who has appealed to the jury of six session has the right to be tried by a jury in accordance with the provisions of G.L. c. 218, § 27A, unless he or she "elect[s] to waive a jury of six in the manner provided by [G.L. c. 263, § 6]." G.L. c. 218, § 27A(g ). General Laws c. 263, § 6, as appearing in St.1979, c. 344, § 19, provides, in relevant part: "Any defendant in a criminal case other than a capital case ... may, if ...