Commonwealth v. Rossetti
| Citation | 129 N.E.3d 312,95 Mass.App.Ct. 552 |
| Decision Date | 03 July 2019 |
| Docket Number | No. 17-P-1571.,17-P-1571. |
| Parties | COMMONWEALTH v. Andrew M. ROSSETTI. |
| Court | Appeals Court of Massachusetts |
Megan L. Rose, Assistant District Attorney, for the Commonwealth.
Cara M. Cheyette for the defendant.
Present: Green, C.J., Vuono, Meade, Desmond, & Singh, JJ.1
The Commonwealth appeals from the order denying its motion brought under Mass. R. Crim. P. 29 (a), as appearing in 474 Mass. 1503 (2016), which provides authority to revise or revoke an illegal sentence.2 The Commonwealth sought review of a continuance without a finding entered pursuant to G. L. c. 278, § 18 (hereinafter, the statute),3 by a District Court judge. According to the Commonwealth, the disposition was unlawful because the judge failed to impose specific conditions, as required by the statute, and then immediately dismissed the case. Although we conclude that the disposition was improper, we are constrained to dismiss the Commonwealth's appeal. Relief under rule 29 (a) is not available in the circumstances presented because rule 29 (a) applies when an illegal sentence is imposed, and no sentence is imposed upon the entry of a continuance without a finding.4
Background. The defendant was charged in a complaint with breaking and entering in the nighttime with intent to commit a felony, in violation of G. L. c. 266, § 16 ; disturbing the peace, in violation of G. L. c. 272, § 53 ; vandalizing property, in violation of G. L. c. 266, § 126A ; threats to commit a crime, in violation of G. L. c. 275, § 2 ; and intimidation of a witness, in violation of G. L. c. 268, § 13B. The defendant decided to plead guilty and appeared in court on March 24, 2017, for a change of plea hearing.5
At the beginning of the hearing, the prosecutor recited the following facts. At around 10:20 P . M ., on February 27, 2017, the defendant went to the home of his former girlfriend, whom we shall call Karen. The two had recently begun dating, but Karen was no longer interested in the relationship. Before arriving at Karen's home, the defendant sent her a number of text messages. One of the messages contained a threat to kill Karen. The defendant also stated that he wanted to come over to her house. Karen told the defendant to leave her alone, but he did not comply with her request. Instead, he arrived at Karen's house and pounded on the windows. Karen pleaded with the defendant to leave. The defendant ignored her pleas and forced his way into the house, breaking two locks that had secured the storm door. Once inside, he took the keys to the house. Apparently referring to a restraining order, the defendant told Karen that he was not scared of a piece of paper.
When the police arrived, the defendant and one other person were standing outside on the street. The defendant sent another text message to Karen stating: "Come out and say it wasn't us." The defendant was arrested, after which he began to scream at Karen, causing the neighbors to look out of their windows.
After the judge heard the facts described above, he remarked that the factual basis for the charge of breaking and entering in the nighttime with the intent to commit a felony "sound[ed] like a misdemeanor ... perhaps [a] trespass." Despite his skepticism, the judge continued with the plea colloquy. The defendant acknowledged that the facts stated by the prosecutor were true, the judge accepted the defendant's plea as knowing and voluntary, and the parties were asked to give their sentence recommendation. The Commonwealth and the defendant did not agree on a disposition. The prosecutor informed the judge that a probation officer had determined that the defendant was not a suitable candidate for probation based on his significant criminal history, which included a conviction of rape for which he served a four-to-six-year term of incarceration; two convictions of assault and battery by means of a dangerous weapon; a conviction each of failure to register as a sex offender, trespass, and resisting arrest; two convictions of violating a restraining order; and two violations of probation. The prosecutor requested that the judge impose a sentence of eighteen months in the house of correction.
Defense counsel requested a more lenient sentence and, noting that the defendant had already served approximately thirty days in jail, asked the judge to impose a one-year suspended sentence.
The judge rejected both recommendations. He found sufficient facts to warrant the entry of a finding of guilty on the charge of breaking and entering in the nighttime with the intent to commit a felony, and then dismissed the charge. He explained: "So essentially I'll CWOF[6 ] and dismiss the [breaking and entering], which I think is wildly overcharged." The charge of disturbing the peace was "guilty and filed" and the judge imposed six months to be served concurrently on the remaining charges.
At the conclusion of the hearing, the prosecutor asked the judge why the facts were not sufficient to support the charge of breaking and entering in the nighttime with the intent to commit a felony. The following exchange ensued:
Approximately fifty-eight days later, the Commonwealth filed a timely motion to revise or revoke pursuant to rule 29 (a), challenging the disposition. The Commonwealth claimed that the entry of a continuance without a finding constituted an illegal sentence because the judge failed to (1) continue the case to a specific date; (2) impose specific terms and conditions; and (3) place the defendant on probation. The judge denied the motion in a margin endorsement.
Discussion. We agree that the disposition at issue did not conform to the statute. As such, the disposition was unlawful.7 The problem, however, is that the Commonwealth chose the wrong avenue to correct the judge's mistake.
Although the proper vehicle by which the Commonwealth may challenge an illegal sentence is to file a motion under rule 29 (a), see Commonwealth v. Selavka, 469 Mass. 502, 508, 14 N.E.3d 933 (2014), rule 29 (a) is not applicable where, as here, there is no sentence to correct. A disposition under the statute resolves the underlying criminal case, but it does not constitute a sentence. To begin with, "[a]n admission to sufficient facts followed by a continuance without a finding is not a ‘conviction’ under Massachusetts law." Commonwealth v. Villalobos, 437 Mass. 797, 802, 777 N.E.2d 116 (2002).8 Rather, where a judge continues a case without a finding, a guilty finding is not entered and the case is "continued without a finding to a specific date thereupon to be dismissed, such continuance conditioned upon compliance with specific terms and conditions or that the defendant be placed on probation." G. L. c. 278, § 18. See Commonwealth v. Mosher, 455 Mass. 811, 822, 920 N.E.2d 285 (2010) (); Commonwealth v. Rodriguez, 52 Mass. App. Ct. 572, 576, 755 N.E.2d 753 (2001) ().9 See also E.B. Cypher, Criminal Practice and Procedure § 24:18 (4th ed. 2014) (). In effect, a continuance without a finding is a deferral of a sentencing decision. No sentence is imposed unless the defendant fails to comply with the terms and conditions set by the judge or commits a new offense during the probationary term. Accordingly, rule 29 (a) provides no basis to challenge the disposition at issue here.
The Commonwealth, however, was not without a remedy. In its brief, the Commonwealth argues that "a [continuance without a finding] and an immediate dismissal is effectively tantamount to a [pretrial] dismissal." The Commonwealth is correct. What happened here was the equivalent of granting a motion to dismiss before a guilty finding was entered. Consequently, the Commonwealth should have filed an appeal pursuant to Mass. R. Crim. P. 15 (a), 476 Mass. 1501 (2017).10 That rule provides that "[t]he Commonwealth shall have the right to appeal to the Appeals Court a decision by a judge granting a motion to dismiss a complaint or indictment." Furthermore, the Commonwealth should have filed a notice of appeal within thirty days of the date on which the charge was dismissed. See Mass. R. Crim. P. 15 (b) (1), as amended, 476 Mass. 1501 (2017).11 The Commonwealth chose the wrong avenue to correct what it maintains is an unlawful disposition. The error is regrettable, especially in light of the fact that it appears that the judge's action violated the separation of powers principles in art. 30 of the Massachusetts Declaration of Rights, but the error cannot be cured by filing a motion to revise or revoke under rule 29 (a).12
Appeal dismissed.
I believe that the Commonwealth properly utilized Mass. R. Crim. P. 29, as appearing in 474 Mass. 1503 (2016), to challenge the disposition here. The court reasons that rule 29 is inapplicable because the rule deals with illegal sentences, and a continuance without a finding disposition entails no sentence upon its imposition.1 Ante ––– at ––––, 129 N.E.3d at ––––. The term "sentence," however, is not defined within the rule. The term has a commonly understood meaning, involving punishment imposed upon conviction of a crime. See...
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