453 Mass. 320 | Mass. | 2009
In Commonwealth v. Cheney, 440 Mass. 568, 574 (2003) (Cheney), we concluded that “judicial power does not extend to authorize a judge to dismiss an otherwise legally adequate indictment, prior to verdict, finding, or plea [over the
At issue in Cheney was the decision of a Superior Court judge to dispose of indictments for rape of a child by placing the defendant “on pretrial probation and . . . continu[ing] the case without a change of plea or an admission to sufficient facts” for six months after which the judge dismissed the indictment by following the procedures outlined in Commonwealth v. Brandano, 359 Mass. 332 (1971) (Brandano). Cheney, supra at 569. The court vacated the dismissal and remanded the case for further proceedings in the Superior Court. Id. at 575.
In the present case, we must decide whether a Superior Court judge may dismiss an indictment in the interests of justice (over the Commonwealth’s objection) after accepting a guilty plea and after the successful completion by the defendant of what the judge characterized as conditions of probation. We must also decide whether the form of disposition imposed by the judge, the filing of the indictment without a finding of guilt to be dismissed on compliance with conditions of probation, is consistent with the statutes and the rules of criminal procedure that govern such matters.
We conclude that a Superior Court judge may dismiss a valid indictment, in certain circumstances, after accepting a guilty plea, by “continuing the case without a finding,” and imposing conditions.
1. Background. On January 9, 2002, an indictment was returned charging the defendant, Travis Powell, with unarmed burglary in violation of G. L. c. 266, § 15. On June 18, 2003, following a full plea colloquy, Powell pleaded guilty to the indictment. The judge accepted Powell’s guilty plea, and in “the interests of justice,” “plac[ed] it on file” without entering a guilty finding and imposed a three-year term of probation with conditions.
Six months later, in light of this court’s decision in Cheney, the Commonwealth filed motions for reconsideration and for the entry of a guilty finding and a sentencing hearing. On July 16, 2004, the Commonwealth’s motions were denied.*
Powell’s probation was terminated on August 8, 2006, and he was discharged, having complied with all of its terms and conditions. The Commonwealth moved to vacate the termination of probation and discharge, and renewed its motion for the entry of a finding of guilt and the scheduling of a sentencing hearing. Powell filed a motion to dismiss the indictment and then a motion to compel dismissal and preclude objection by the Commonwealth on the ground that the Commonwealth waived its right to object to the dismissal by failing timely to pursue its right to appeal. After a hearing, a judge dismissed the indictment, ruling both that the remedy sought by the Commonwealth was unjust because Powell had completed the terms of his probation and the Commonwealth had not pursued earlier opportuni
2. Discussion. In Brandano, supra at 334-335, the court distinguished the authority of a judge to dismiss an otherwise valid criminal charge (in the interests of justice) prior to a trial or guilty plea, from the authority to dismiss such a charge after a trial or a guilty plea. The court explained that in the former circumstance the effect of the judge’s action is that of “quashing or entering a nolle prosequi,” id. at 335, quoting Commonwealth v. Bressant, 126 Mass. 246, 247 (1879), a power reserved for the executive branch, while the latter “involves no interference with the proper function of prosecuting officials.” Brandano, supra. The authority for the former it described as constitutionally questionable, and the latter, as “well established.” Id. The Bran-dano court went on to delineate an adversary, evidentiary procedure that it believed would satisfy the constitutional question of dismissal prior to a trial or guilty plea, although it explicitly did not decide “the ultimate question of [its] constitutionality.” Id. at 337.
In Cheney, supra at 568, 574, we confronted the constitutional question and essentially disagreed that such a procedure was adequate in the face of the requirements of art. 30 that the judiciary “shall never exercise the . . . executive powers.” The circumstances we confront in the present case are different. The disposition of a criminal case after a trial or a guilty plea by a dismissal contingent on conditions does not constitute the improper entry of a nolle prosequi, and does not infringe on the powers of the executive branch, at least where the disposition imposed by the judge is one that is recognized by the Legislature. See Commonwealth v. Pyles, supra at 723 (upholding Legislature’s enactment of G. L. c. 278, § 18, which permits disposition of continu
As we have noted in prior decisions, the Legislature has, by enacting G. L. c. 278, § 18, provided a statutory procedure available in the District, Juvenile, and Boston Municipal Courts for the disposition of criminal cases by means of a CWOF, the imposition of conditions, and dismissal.
A recent amendment to the sentencing provisions of G. L. c. 6, § 178H (failure to register as sex offender), is illustrative. Under § 178H (a) (2), a second and subsequent conviction can only be disposed of in the Superior Court. Prior to 2006, the statute provided that certain prosecutions commenced thereunder “shall neither be continued without a finding nor placed on file.” G. L. c. 6, § 178H (c), as appearing in St. 1999, c. 74, § 2. In 2006, the statute was amended in several respects. The amendments eliminated the section prohibiting prosecutions from being continued without a finding, St. 2006, c. 303, § 5, and enhanced the penalty for a “second and subsequent conviction” by adding a further “sentence of community parole supervision for life [to] commence immediately upon the expiration of [a prison sentence, probation, parole or] a continuance without a finding,” St. 2006, c. 139, § 27; thus, plainly anticipating that a CWOF disposition could be imposed by a Superior Court judge in such a case.
The procedure used in this case does not present the concern that we expressed in Commonwealth v. Tim T., 437 Mass. 592, 596-597 (2002), about unfair prejudice to the Commonwealth. In that case, we held that a judge in the juvenile session of the District Court could not dispose of a case over the Commonwealth’s objection by imposing a term of probation under G. L. c. 276, § 87, without first complying with G. L. c. 278,
Accordingly, unless the statutory language of the charged offense prohibits it, the dismissal of an indictment in the interests of justice after a guilty plea and after the satisfaction of conditions remains a viable disposition in the Superior Court.
Nevertheless, the Superior Court judge in this case did not label her disposition a “continuance without a finding.” The docket indicates that Powell “plead[ed] guilty,” but it also states that the indictment was “[f]iled with no guilty finding entered.” Placing an indictment on file without the consent of the Commonwealth, however, is inconsistent with our long-established
As a result, the case must be remanded to the Superior Court to correct the docket entry, see Commonwealth v. Sebastian S., 444 Mass. 306, 312 (2005) (“uniformity, accuracy, and consistency in the description of dispositions is of systemic importance”),
3. Conclusion. The case is remanded to the Superior Court for proceedings consistent with this opinion.
So ordered.
In a “disposition memorandum” prepared by the judge on June 18, 2003, the following conditions were imposed on Travis Powell: monthly reporting to
The judge who accepted Powell’s guilty plea and entered the disposition at issue had retired, and a different judge held a hearing and denied the Commonwealth’s motions.
General Laws c. 278, § 18, provides in pertinent part: “A defendant who is before the Boston municipal court or a district court or a district court sitting in a juvenile session or a juvenile court on a criminal offense within the court’s final jurisdiction shall plead not guilty or guilty, or with the consent of the court, nolo contendere. Such plea of guilty shall be submitted by the defendant and acted upon by the court; provided, however, that a defendant with whom the commonwealth cannot reach agreement for a recommended disposition shall be allowed to tender a plea of guilty together with a request for a specific disposition. Such 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 pursuant to the provisions of [G. L. c. 276, § 87]. If such a plea, with an agreed upon recommendation or with a dispositional request by the defendant, is tendered, the court shall inform the defendant that it will not impose a disposition that exceeds the terms of the agreed upon recommendation or the dispositional request by the defendant, whichever is applicable, without giving the defendant the right to withdraw the plea.
“If a defendant, notwithstanding the requirements set forth hereinbefore, attempts to enter a plea or statement consisting of an admission of facts sufficient for finding of guilt, or some similar statement, such admission shall be deemed a tender of a plea of guilty for purposes of the procedures set forth in this section.”
See Commonwealth v. Cheney, 440 Mass. 568, 571 (2003) (noting that Commonwealth v. Tim T., 437 Mass. 592 [2002], implied that G. L. c. 278, § 18, displaced Commonwealth v. Brandano, 359 Mass. 332 [1971] [Brandano], as the only method for a dismissal “in the interests of public justice” in the Juvenile Court, District Court, and Boston Municipal Court). See also Commonwealth v. Tim T., supra at 594-597; Commonwealth v. Rotonda, 434 Mass. 211, 217-218 (2001); Commonwealth v. Pyles, 423 Mass. 717, 723, (1996).
This was not a precondition to such a disposition as provided for in Brandano.
We have previously concluded that Mass. R. Crim. P. 28 (a), 378 Mass. 898 (1979), does not permit a judge to continue a case without a finding after a trial has been held. Commonwealth v. Norrell, 423 Mass. 725, 727 (1996) (rule 28 [a] requires entry of finding of guilty or not guilty after bench trial). Rule 28 (a) provides that, “[i]f the defendant has been determined to be guilty, a verdict or finding of guilty shall be rendered, or if he has been determined to be not guilty, a verdict or finding of not guilty shall be rendered, in open court, and shall be entered on the court’s docket.” We are not persuaded by the Commonwealth’s contention that this rule also precludes a judge from continuing a case without a finding after a guilty plea. Rule 28 (a) makes no mention of entering a verdict or finding after a guilty plea or admission to sufficient facts. In contrast, Mass. R. Crim. P. 28 (b), 378 Mass. 898 (1979), provides for the imposition of sentence after “verdict, finding, or plea of guilty, or a plea of nolo contendere, or an admission to sufficient facts.”
See, e.g., G. L. c. 90B, § 8A (1) (causing serious bodily injury by recklessly or negligently operating vessel while under influence of liquor or drugs); G. L. c. 90B, § 8B (1) (causing homicide by recklessly or negligently operating vessel while under influence of liquor or drugs); G. L. c. 265, § 22A (rape of child under sixteen years by force); G. L. c. 265, § 23 (rape of child); G. L. c. 265, § 43 (c) (stalking; second or subsequent offense); G. L. c. 269, § 10 (m) (unlawful carrying of dangerous weapon, large capacity weapon, or large capacity feeding device therefor); G. L. c. 269, § 10E (unlawful sale of quantity of firearms); G. L. c. 269, § 10F (illegal sale of large capacity weapons); G. L. c. 269, § 10G (violations of G. L. c. 269, § 10 [a], [c], or \K\, by persons previously convicted of violent crimes or serious drug offenses); G. L. c. 272, § 4B (deriving support from child prostitution).
We acknowledge that it may be possible for some of these offenses to be disposed of in juvenile proceedings outside the Superior Court. For example, a juvenile indicted as a youthful offender under G. L. c. 119, § 54, for violating a criminal statute would be tried in the Juvenile Court. See Commonwealth v. Dale D., 431 Mass. 757, 759 (2000) (“Whether proceeded against by complaint or indictment [under G. L. c. 119, § 54], the case is tried in the Juvenile Court”). See also Commonwealth v. Tim T, supra at 592-593 (indictment of juvenile as youthful offender under G. L. c. 119, § 54, for violating G. L. c. 265, § 23, disposed of in juvenile session of District Court).
The statutory language barring the use of dispositions of continuance
“We recognize that the ‘continuance without a finding’ is a procedure which often serves the best interests of both the Commonwealth and the defendant. The benefit to a defendant is obvious: he may be able to avoid a trial and ‘earn’ a dismissal of the indictment or complaint, thereby avoiding the consequences of having a criminal conviction on his record. These advantages would be especially appealing to a first offender or a defendant whose job security or family situation might be threatened by a conviction. The Commonwealth avoids the more time-consuming process of trial and sentencing.” Commonwealth v. Duquette, 386 Mass. 834, 843 (1982).
The use of such dispositions, over the Commonwealth’s objection, in cases pending before the Superior Court (which disposes of the most serious criminal matters), ought to be issued sparingly. In such cases, the judge’s reasons should be, as here, fully explained.
In Commonwealth v. Sebastian S., 444 Mass. 306, 307 (2005), we concluded that there was “no legally cognizable disposition of ‘pretrial probation’ after an ‘admission to sufficient facts’ distinct from a ‘continufance] without a finding’ conditioned on probation, a disposition authorized by G. L. c. 278, § 18,” and remanded the cases for the correction of the dockets to reflect the lawful sentences of “ ‘continuance without a finding’ conditioned on probation.”
Given our resolution of this case, we need not reach Powell’s contention that because he was discharged after successfully completing his probationary term, due process and fundamental fairness dictate that he cannot be compelled to withdraw his guilty plea and either plead guilty to a lesser offense and be sentenced again or to stand trial.