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Massachusetts Criminal Procedure Rule 28: Judgment

(Applicable to District Court and Superior Court)

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(a) Judgment. If 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.

(b) Imposition of Sentence. After a verdict, finding, or plea of guilty, or a plea of nolo contendere, or an admission to sufficient facts, the defendant shall have the right to be sentenced without unreasonable delay. Pending sentence the court may commit the defendant or continue or alter the bail as provided by law. Before imposing sentence the court shall afford the defendant or his counsel an opportunity to speak on behalf of the defendant and to present any information in the mitigation of punishment.

(c) Notification of Right to Appeal. After a judgment of guilty is entered, the court shall advise the defendant of his right to appeal. In the District Court, upon the request of the defendant, the clerk of the court shall prepare and file forthwith a notice of appeal.

(d) Presentence Investigation.

(1) Criminal Record. The probation officer shall inquire into the nature of every criminal case or juvenile complaint brought before the court and report to the court information concerning all prior criminal prosecutions or juvenile complaints, if any, and the disposition of each such prosecution, except where the defendant was found not guilty. Such information is to be presented before a defendant is admitted to bail in court, and also before disposition of the case against him.

(2) Report. The report of the presentence investigation shall contain any prior criminal or juvenile prosecution record of the defendant, but shall not contain any information relating to criminal or juvenile prosecutions in which the defendant was found not guilty. In addition, the report shall include such other available information as may be helpful to the court in the disposition of the case.

(3) Availability to Parties. Prior to the disposition the presentence report shall be made available to the prosecutor and counsel for the defendant for inspection. In extraordinary cases, the judge may except from disclosure parts of the report which are not relevant to a proper sentence, diagnostic opinion which might seriously disrupt a program of rehabilitation, sources of information obtained upon a promise of confidentiality, or any other information which, if disclosed, might result in harm, physical or otherwise, to the defendant or other persons. If the report is not made fully available, the portions thereof which are not disclosed shall not be relied upon in determining sentence. No party may make any copy of the presentence report.

(e) Filing. The court may file a case after a guilty verdict or finding without imposing a sentence if the defendant and the Commonwealth both consent. With the consent of both parties, the judge may specify a time limit beyond which the case may not be removed from the file, and may specify any events that may cause the case to be removed from the file. The defendant shall file a written consent with the court as to both the filing of the case and any time limit or events regarding removal from the file. Prior to accepting the defendant’s consent, the court shall inform the defendant on the record in open court:

(i) that the defendant has a right to request sentencing on any or all filed case(s) at any time;

(ii) that subject to any time limit imposed by the court, the prosecutor may request that the case be removed from the file and sentence imposed if a related conviction or sentence is reversed or vacated or upon the prosecutor’s establishing by a preponderance of the evidence either that the defendant committed a new criminal offense or that an event occurred on which the continued filing of the case was expressly made contingent by the court; and

(iii) that if the case is removed from the file the defendant may be sentenced on the case.

In sentencing the defendant after the removal of a case from the file, the court shall consider the over-all scheme of punishment employed by the original sentencing judge.

As amended December 17, 2008, effective April 1, 2009.

Reporter's Notes to Rule 28(e)(2008) This section was added to meet the concerns the Supreme Judicial Court expressed in its opinion in Commonwealth v. Simmons, 448 Mass. 687 (2007). It addresses the procedure for placing a case on file without a sentence after a guilty verdict, a guilty finding or a plea of guilty. Before a court can place a complaint or indictment on file, both the defendant and the Commonwealth must consent. The defendant’s consent is necessary because the suspension of the case deprives the defendant of the right to be sentenced in a timely fashion and the right to appeal. See Simmons, 448 Mass. at 698; Commonwealth v. Delgado, 367 Mass. 432, 438 (1975); Marks v. Wentworth, 199 Mass. 44, 45 (1908). The defendant’s consent must be in writing and made part of the record in the case.

The Commonwealth’s consent is necessary both because it accords with the historical practice, see Commonwealth v. Dowdican’s Bail, 115 Mass. 133, 136 (1874) (“It has long been a common practice in this Commonwealth . . . to order, with the consent of the defendant and of the attorney for the Commonwealth, and upon such terms as the court in its discretion may impose, that the indictment be laid on file . . . .”) (emphasis added), and because of the general public interest in seeing the timely imposition of a sentence.

If the judge does not otherwise specify, a filed case remains inactive indefinitely. The judge may, however, provide for the time frame within which the case may be brought forward as well as the occurrence of any events that would serve as the predicate for removing the case from the file. See, e.g., Commonwealth v. Marinucci Bros. & Co., 354 Mass. 743, 745 (1968) (defendant paying restitution); Commonwealth v. Pelletier, 62 Mass. App. Ct. 145, 146-147 (2004) (defendant serving a specified term in prison before being paroled). Since both theCommonwealth and the defendant have a right to have the judge impose a sentence, by implication if the judge sets a time limit or establishes a contingency that would bring the case forward, both parties must agree.

The notice the defendant must receive about the implications of filing a case without imposing sentence is similar to a guilty plea colloquy in that it must occur in open court on the record. It is, however, not as detailed as a guilty plea colloquy nor must the judge specifically address the question of voluntariness, as would be the case with a guilty plea. Cf. Rule 12(a)(5). The defendant must, however, file with the court a signed statement agreeing to the filing of the case without a sentence and acknowledging the time frame within which the case can be removed from the file as well as the occurrence of any events that would serve as the predicate for its removal.

Subsection (i) requires the court to inform the defendant that he or she has the right to request that a case be removed from the file at any time. This reflects the historical practice surrounding the filing procedure, see Commonwealth v. Chase, Thacher’s Crim. Cas. 267, 268-269 (Boston Mun. Ct. 1831) quoted in Commonwealth v. Simmons, 448 Mass. 687, 696 (2007) (“the [defendant] might at any time [appear] in court, and [demand] the judgment of law.”); Commonwealth v. Dowdican’s Bail, 115 Mass. 133, 136 (1874) (“[the practice of filing] leaves it within the power of the court at any time, upon the motion of either party, to bring the case forward”). Since a defendant ordinarily cannot obtain appellate review of a filed case, see Commonwealth v. Delgado, 367 Mass. 432, 438 (1975), allowing the defendant to remove a case from the file is the only way to effectuate the right to appeal.

Subsection (ii) requires the defendant to receive notice of the reasons why the case can be removed from the file. One contingency that must be part of the notice in every case is the possibility that a related conviction was reversed or a related sentence vacated or modified. In the usual instance, a related conviction will be one that was joined for trial with the complaint or indictment that is being filed. See, e.g., Commonwealth v. Owens, 414 Mass. 595, 596 (1993). In some circumstances, however, a conviction that results from a separate proceeding may be based on the same course of criminal conduct as the filed case. In that situation, if the conviction or sentence in the separate case were reversed or vacated, the filed case could be brought forward.

Another element of the notice the defendant must receive under subsection (ii) is that the case may be removed from the file if the defendant commits a new criminal offense. The Supreme Judicial Court has recognized that historically, an implicit condition of a case remaining on file was the defendant’s good behavior. See Commonwealth v. Simmons, 448 Mass. 687, 697 (2007). In Simmons itself, the Court approved the removal of an indictment from the file because the defendant was charged with a new offense. “Future criminal conduct” rather than “good behavior” is a more appropriate standard to incorporate into contemporary procedure given the existence of probation and the need to provide fair notice to the defendant of the reasons why a case might be brought forward for sentencing. If a defendant’s future behavior has to be monitored on a long-term basis beyond the specific criterion of avoiding future criminal conduct, probation is a more appropriate vehicle than placing a case on file. The notice also informs the defendant that the issue of future criminal behavior is one that the prosecutor must establish by a preponderance of the evidence in order to justify removing a case from the file and having the court impose a sentence. The preponderance standard is the one that governs a probation revocation hearing, which is the closest analogy to removing a case from the file. See Commonwealth v. Holmgren, 421 Mass. 224, 226 (1995). It is also the standard that a judge must apply in sentencing. See Nichols v. United States, 511 U.S. 738, 748 (1994); Commonwealth v. Nawn, Jr., 394 Mass. 1, 7 (1985).

Subsection (ii) also recognizes that in an individual case a judge may make bringing the case forward contingent upon a specific event, such as the defendant paying restitution, see e.g. Commonwealth v. Marinucci Bros. & Co., 354 Mass. 743, 745 (1968), or serving a specified term in prison before being paroled, see e.g. Commonwealth v. Pelletier, 62 Mass. App. Ct. 145, 146-147 (2004). The defendant must receive explicit notice of any such contingency.

Subsection (iii) requires the court to inform the defendant that if the case is removed from the file, the defendant can receive a sentence that entails additional punishment. Cf. Simmons, 448 Mass. at 695 n.9. This provision does not require the type of colloquy concerning the details of a maximum sentence that must accompany a guilty plea. Cf. Rule 12(c)(3)(B). The defendant must, however, be made aware of the possibility of additional punishment and the judge should tailor the amount of information on this topic to the needs of each specific case.

The last provision in this section addresses the power of a judge to impose a sentence after a case is removed from the file. The Supreme Judicial Court has made clear that when a case is brought forward from the file, the judge, in deciding on what sentence to impose, must conform the new sentence to “the over-all scheme of punishment employed by the trial judge.” Simmons, 448 Mass. at 699. This requirement means the sentencing judge has to take into account two limitations. One is the length of the original sentencing scheme. In Simmons, for example, the Court determined that the disparity between the two sentences was too great where a defendant was originally sentenced to concurrent terms of eight to twelve years on six armed robbery indictments and five years later received a sentence of eighteen to twenty years on a single count of armed assault with intent to rob that had been removed from the file. See id. at 699. It may be appropriate in some cases for the judge who orders a case placed on file to indicate what type of sentence is contemplated if the case is ever removed from the file. The other limitation stems from the requirement of due process that a defendant not be punished for conduct other than that for which he or she was convicted. See Commonwealth v. Bianco, 390 Mass. 254, 259 (1983). Since an allegation of new criminal conduct will often be the occasion for bringing a case out of the file, the judge should take care not to impose a harsher sentence on the filed case because the defendant “has not demonstrated his innocence of [the] unrelated, pending charge.” Commonwealth v. LeBlanc, 370 Mass. 217 (1976).