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Commonwealth v. Rossetti

Appeals Court of Massachusetts, Berkshire

July 3, 2019

COMMONWEALTH
v.
ANDREW M. ROSSETTI.

          Heard: November 9, 2018.

         Complaints received and sworn to in the Pittsfield Division of the District Court Department on February 28, 2017.

         A motion to revise or revoke sentence was considered by William A. Rota, J.

          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]

          VUONO, J.

         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 ...


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