COMMONWEALTH vs. ANDREW M. ROSSETTI.

KAFKER, J. The instant case is a companion case to Commonwealth v. Beverly, 485 Mass. 1 (2020), and Commonwealth v. Ellsworth, 485 Mass. (2020). For the reasons stated in Beverly, supra at 16-17, 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

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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

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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 (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. 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, 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, 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, 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, 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, we hold that entry of a continuance without a finding, without the imposition of any terms and conditions, or probation, amounts to an illegal sentence in violation of G. L. c. 278, § 18.

At issue in the instant case is the sentencing disposition entered as to the charge of breaking and entering in the nighttime with the intent to commit a felony. It is evident from the record that the judge believed that the Commonwealth had "wildly overcharged" the defendant on that count, and that this influenced his sentencing

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decision. [Note 1] Regardless of the judge's opinion as to the propriety of bringing this charge, once he decided to enter a continuance without a finding on this count, he was required to impose some term, condition, or a period of probation pursuant to G. L. c. 278, § 18. The sentencing judge did not have the authority to dismiss the charge without any conditions, under the guise of entering a continuance without a finding, so as to undercut what he believed to be "wild overcharging" by the Commonwealth. Continuances without a finding cannot be dismissals in disguise. Without terms and conditions, or probation, such dispositions violate G. L. c. 278, § 18, and raise constitutional questions regarding the separation of powers. See Beverly, 485 Mass. at 15. Thus, the entry of the continuance without a finding in the instant case amounted to an illegal sentence. Because the Commonwealth apparently previously conceded the issue of mootness, did not seek to stay the sentence that has now been fully served, and did not adequately brief the issue of double jeopardy, we do not consider the issue of resentencing in the instant case. See id. at 16. Regardless, in Ellsworth, 485 Mass. at 33-35, we conclude that resentencing would not be just under the circumstances, and impose our holding in these cases prospectively from the date of this decision.

3. Conclusion. For the reasons discussed in Beverly, 485 Mass. at 16-17, we conclude that the continuance without a finding entered in the instant case constituted an illegal sentence, as it contained no terms and conditions. We further conclude, however, that vacating the disposition and ordering that the defendant be resentenced is not just in the circumstances of this case. Rather, for the reasons articulated in Ellsworth, 485 Mass. at 33-35, our holding shall apply prospectively from the date of this decision.

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Accordingly, the continuance without a finding disposition in the instant case may be retained, and is thus affirmed, but cannot be imposed in any such future case.

So ordered.