Commonwealth v. Beverly

485 Mass. 1

147 N.E.3d 426

COMMONWEALTH

v.Devonaire X. BEVERLY.

SJC-12814

Supreme Judicial Court of Massachusetts, Berkshire..

Argued January 7, 2020.

Decided June 15, 2020.

Megan L. Rose, Assistant District Attorney (Jeanne M. Kempthorne, Assistant District Attorney, also present) for the Commonwealth.

Cara M. Cheyette for the defendant.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

KAFKER, J.

At issue in the instant case is whether the entry of a continuance without a finding and immediate dismissal of a criminal case, without the imposition of terms and conditions, or probation, constitutes an illegal sentence under G. L. c. 278, § 18, that may be challenged by way of a motion to revise or revoke, pursuant to Mass. R. Crim. P. 29, as appearing in 474 Mass. 1503 (2016) ( rule 29 ). We conclude that a continuance without a finding that imposes no terms and conditions, or probation, violates the requirements of G. L. c. 278, § 18, and thus constitutes an illegal disposition. As an illegal disposition, such a continuance without a finding may be challenged pursuant to rule 29.

1. Background. The defendant was arrested after Pittsfield police identified him as the driver of a vehicle that had been reported stolen. Police subsequently discovered a bag of what appeared to be "crack" cocaine in the defendant's possession. The defendant told police that the substance was in fact baking soda that he intended to pass off as crack cocaine for sale. Police also discovered a third party's credit card in the defendant's possession that the defendant claimed he had found and intended to use to purchase cigarettes. The defendant was subsequently charged with counterfeit drug possession with intent to distribute, in violation of G. L. c. 94C, § 32G ; receiving a lost credit card, in violation of G. L. c. 266, § 37B (c ) ; and receiving a stolen motor vehicle, in violation of G. L. c. 266, § 28 (a ).¹

A plea hearing was held on May 15, 2017, in the District Court. The defendant admitted to sufficient facts as to the three crimes. The Commonwealth asked that the defendant be found guilty and sentenced to sixty days in a house of correction on each charge, to be served concurrently. Defense counsel asked for twenty days in a house of correction, highlighting that the defendant was nineteen years old and had no prior felonies in Massachusetts. Defense counsel also indicated that the defendant would not be able to afford to pay restitution or probationary fees.

As to the counterfeit drug charge, the sentencing judge found sufficient facts and entered a continuance without a finding, to be dismissed as of 4 P.M. the same day. At the plea hearing, the sentencing judge did not impose any terms and conditions on the dismissal, nor did the judge condition the dismissal on successful completion of probation. The criminal docket shows the sentencing disposition as "[s]ufficient facts found but continued without a finding until 4PM today." As to the charge for receiving a stolen credit card, the judge entered a guilty finding and sentenced the defendant to thirty days' incarceration in a house of correction with credit for time served. Finally, as to the charge for receiving a stolen motor vehicle, the judge initially stated that he would "spare [the defendant] the felony," and attempted to enter a continuance without a finding to be dismissed at 4 P.M. , as he had done for the counterfeit drug possession charge. After being informed that he was statutorily proscribed² from entering a continuance without a finding on the charge of receiving a stolen motor vehicle, however, the judge instead entered a guilty finding and sentenced the defendant to thirty days' incarceration in a house of correction. He ordered that the latter sentence be nunc pro tunc to March 6, 2017, the date of incarceration for the credit card offense, in order for the two sentences to run concurrently.³

The Commonwealth did not object at the hearing to the judge's entry of a continuance without a finding for the counterfeit drug possession charge, although the judge's disposition differed from the Commonwealth's recommendation of sixty days in a house of correction. On June 12, 2017, the Commonwealth filed a motion under rule 29 (a) (1) (rule 29 motion), requesting that the sentencing judge revise or revoke the entry of the continuance without a finding. In the affidavit accompanying its motion, the Commonwealth asserted that the judge's order was an "illegal disposition" contrary to G. L. c. 278, § 18. The judge denied the Commonwealth's motion without a hearing, and the Commonwealth filed a timely appeal.

The Appeals Court consolidated this case for oral argument with Commonwealth v. Rossetti, 95 Mass. App. Ct. 552, 129 N.E.3d 312 (2019), which also involved the issue whether a judge may enter a continuance without a finding and dismiss a charge without imposing any terms and conditions, or a term of probation. Id. at 555-556, 129 N.E.3d 312. The Appeals Court concluded that a continuance without a finding is not a "sentence" and thus cannot be challenged by way of a rule 29 motion to revise or revoke a sentence. See id. at 556, 129 N.E.3d 312. We granted further appellate review, consolidating this case and Rossetti with a third case, Commonwealth v. Ellsworth, for which we had granted direct appellate review on the same issue. See Commonwealth v. Ellsworth, 485 Mass. 29, 146 N.E.3d 1121 (2020) ; Commonwealth v. Rossetti, 485 Mass. 24, 146 N.E.3d 1128 (2020).

2. Analysis. a. Mootness. As an initial matter, the defendant argues that because he has finished serving the sentence imposed, and the Commonwealth did not file a motion to stay the defendant's sentence pending appeal, the case against him is moot. See Commonwealth v. McCulloch, 450 Mass. 483, 486, 879 N.E.2d 685 (2008). In Rossetti, 95 Mass. App. Ct. at 555 n.7, 129 N.E.3d 312, the Commonwealth conceded the issue of mootness before the Appeals Court. In the instant case, the Commonwealth does not directly address the issue, but nonetheless requests resentencing. We need not decide whether the case is moot because, even if it is, the disposition at issue -- a continuance without a finding entered without terms and conditions, or probation, and dismissed after a few hours -- appears to be a not entirely uncommon occurrence in the District Court,⁴ and presents a recurring question likely to evade review. See Commonwealth v. Pon, 469 Mass. 296, 299, 14 N.E.3d 182 (2014). We thus conclude that the issue warrants our consideration. See McCulloch, supra at 486, 879 N.E.2d 685 ; Commonwealth v. Dotson, 462 Mass. 96, 98-99, 966 N.E.2d 811 (2012).⁵

b. Propriety of filing rule 29 motion to revise or revoke. We first consider the propriety of the procedure employed by the Commonwealth to challenge the entry of the continuance without a finding. In Commonwealth v. Galvin, 466 Mass. 286, 289, 995 N.E.2d 27 (2013), this court held that a petition pursuant to G. L. c. 211, § 3, was the "proper means by which the Commonwealth may seek review of the imposition of an allegedly illegal sentence." At the time, no other statutory provision or procedural rule existed authorizing the Commonwealth to appeal an illegal sentence, and thus, we concluded that the "Commonwealth would otherwise be left without a remedy if this court were not to exercise its superintendence powers" under G. L. c. 211, § 3. Galvin, supra. Subsequent to that decision, however, we determined that the Commonwealth should be "permitted to contest an invalid sentence by means of essentially the same mechanism for adjusting sentences that is available to the defendant and the sentencing judge," namely rule 29. Commonwealth v. Selavka, 469 Mass. 502, 508, 14 N.E.3d 933 (2014). Thereafter, rule 29 was rewritten to reflect our holding in Selavka.⁶ i. Rule 29. Rule 29 (a) (1) now provides that "[t]he trial judge, upon the judge's own motion, or the written motion of the prosecutor, filed within sixty days after imposition of a sentence, may revise or revoke such sentence if the judge determines that any part of the sentence was illegal."⁷ The propriety of using rule 29 in the instant case thus turns on a determination whether a continuance without a finding constitutes a "sentence" within the meaning of this provision. For the reasons discussed infra, we conclude that it does.

ii. Continuances without a finding. Continuances without a finding have a long-standing history in the Commonwealth as an alternative to a traditional sentencing disposition. See Commonwealth v. Rotonda, 434 Mass. 211, 216, 747 N.E.2d 1199 (2001). The procedure originated in the District Court, whereby a sentencing judge would continue a case without making a guilty finding. See Commonwealth v. Duquette, 386 Mass. 834, 837–838, 438 N.E.2d 334 (1982). The judge would instead impose certain conditions on the defendant for a designated period of time. Id. If the defendant abided by the conditions imposed, the judge would dismiss the case at the end of the period specified. Id.

Although the disposition originated as a matter of common law, continuances without a finding have since been codified into a statutory sentencing scheme.⁸ See G. L. c. 278, § 18. The statute provides in relevant part:

"[A] defendant with whom the Commonwealth cannot reach an agreement for a recommended disposition shall be allowed to tender a plea of guilty together with a request for a specific disposition. Such a request may include any disposition or dispositional terms within the court's jurisdiction, including, unless otherwise prohibited by law, a dispositional request that a guilty finding not be entered, but rather the case be 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 ...."

Id.

The issue under rule 29 is not whether a continuance...