Commonwealth v. Rossetti

485 Mass. 24

146 N.E.3d 1128

COMMONWEALTH

v.Andrew M. ROSSETTI.

SJC-12815

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.

The instant case is a companion case to Commonwealth v. Beverly, 485 Mass. 1, ––– N.E.3d ––––, and Commonwealth v. Ellsworth, 485 Mass. 29, 146 N.E.3d 1121. For the reasons stated in Beverly, supra at 16–17, ––– N.E.3d ––––, we conclude that the sentencing judge imposed an illegal sentence by entering a continuance without a finding and immediately dismissing a charge absent any terms and conditions, or probation. For the reasons discussed therein, however, we nevertheless decline to remand this case for resentencing as to the illegal sentences.

1. Background. The facts underlying the instant case involve an altercation between the defendant and his then-girlfriend. The defendant sent her an electronic text message threatening to kill her, before arriving at her house with a friend. The defendant forced his way onto the front porch of the home, breaking two locks on the storm door in the process. Police were called to the scene. While the victim spoke with police, the defendant sent her a text message requesting that she "[c]ome out and say it wasn't us." The defendant was subsequently arrested. Upon being arrested, he began yelling and called the victim a "snitch" and an "f'ing bitch." The commotion drew the attention of a neighbor.

The defendant was charged with breaking and entering in the nighttime with the intent to commit a felony, disturbing the peace, vandalizing property, threatening to commit a crime, and witness intimidation. A plea hearing was held on March 24, 2017. At the hearing, the defendant admitted to sufficient facts as to all five counts. The Commonwealth asked that the defendant be found guilty of disturbing the peace, and that the charge be placed on file, and the defendant agreed. As to the remaining four charges, however, the parties disagreed as to the appropriate sentencing disposition. The Commonwealth asked that the defendant be sentenced to eighteen months in a house of correction on each charge, to be served concurrently, and indicated that the victim was in agreement with this recommendation. Given that he had already served approximately thirty days in pretrial detention, the defendant requested that he be sentenced to thirty days in a house of correction, with credit for time served, and a one-year suspended sentence on each charge, to be served concurrently. The probation department indicated that the defendant was not a candidate for probation, given his lengthy criminal record and the fact that he had previously violated probation twice on prior convictions.

During the hearing, the judge asked the Commonwealth to identify the felony that the defendant had intended to commit as part of the breaking and entering charge. The Commonwealth expressed uncertainty, but asserted that it was not necessary to identify the underlying felony for the purposes of the sentencing proceedings. The sentencing judge then found facts sufficient for a guilty plea and entered a continuance without a finding as to the breaking and entering charge, expressing his belief that it was "wildly overcharged." The judge ordered the dismissal of the breaking and entering charge for 4 P.M. that day and did not set any conditions or terms on the dismissal. The judge found the defendant guilty of disturbing the peace and filed the charge. He accepted the defendant's guilty plea on the other charges, sentencing him to six months in a house of correction on each remaining charge, to be served concurrently.

The Commonwealth did not object to the entry of the continuance without a finding during the plea hearing. Nor did it seek a stay of execution of the defendant's sentence. On May 19, 2017, however, the Commonwealth filed a motion requesting that the judge revise or revoke the continuance without a finding under Mass. R. Crim. P. 29 (a), as appearing in 474 Mass. 1503 (2016) ( rule 29 ). On May 26, 2017, the sentencing judge denied the Commonwealth's motion without a hearing or opinion. The Commonwealth filed a timely appeal.

The Appeals Court consolidated this case for oral argument with Commonwealth v. Beverly, as both cases involved the legal question whether a judge may enter a continuance without a finding and immediately dismiss a charge without any terms and conditions, or probation. See Commonwealth v. Rossetti, 95 Mass. App. Ct. 552, 129 N.E.3d 312 (2019). The Appeals Court dismissed the appeal, concluding that rule 29 was an inappropriate mechanism for the Commonwealth's challenge because a continuance without a finding is not a "sentence." Id. at 556-557, 129 N.E.3d 312. We subsequently granted the defendant's application for further appellate review.

2. Discussion. As an initial matter, and as discussed in Beverly, 485 Mass. at 4, ––– N.E.3d ––––, one of our companion cases, the Commonwealth apparently conceded that the instant case was moot during oral arguments before the Appeals Court. For the reasons discussed in that case, id. at 4–5, ––– N.E.3d ––––, we nonetheless choose to exercise our discretion to reach the merits of both of these cases. We reserve, however, our discussion of resentencing for Ellsworth, 485 Mass. at 33–35, 146 N.E.3d 1121, the only one of the three cases in which the issue was properly briefed by both parties, and wherein the Commonwealth did not previously concede the issue of mootness.

As explained in Beverly, 485 Mass. at 5–11, ––– N.E.3d ––––, rule 29 was the appropriate vehicle for the Commonwealth to challenge the entry of the continuance without a finding as an illegal sentence. Further, as discussed in Beverly, supra at 11–14, ––– N.E.3d...