Heard: November 9, 2018.
received and sworn to in the Pittsfield Division of the
District Court Department on February 28, 2017.
motion to revise or revoke sentence was considered by William
A. Rota, J.
L. Rose, Assistant District Attorney, for the Commonwealth.
M. Cheyette for the defendant.
Present: Green, C.J., Vuono, Meade, Desmond, & Singh, JJ.
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. The Commonwealth sought
review of a continuance without a finding entered pursuant to
G. L. c. 278, § 18 (hereinafter, the statute),
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
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
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.
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.
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
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 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.
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 ...