COMMONWEALTH v. CARDOSA (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

In 2006, the defendant pleaded guilty to one count of assault and battery by means of a dangerous weapon. The conviction was based on the defendant's having hit a foreman at a construction site with his construction helmet. The defendant was sentenced to two years of probation. In 2018, approximately a decade after the defendant's probation was terminated, he filed a motion to “convert” his guilty plea into a continuance without a finding. Before us now is the defendant's appeal of the order denying that motion. We affirm.

In pressing his motion, the defendant relied on Commonwealth v. Powell, 453 Mass. 320, 327 (2009). In the judge's margin note explaining his denial of the motion, the judge expressed his view that Powell “does not provide support for [the defendant's] motion.” We agree. Powell addressed whether a judge had authority to accept a defendant's guilty plea and then -- over the Commonwealth's objection -- dispose of the case by entering a continuance without a finding and then dismissing the case after the defendant had complied with conditions set. See id. at 321-322. The case before us arises in a different context: a defendant who seeks a continuance without a finding long after a guilty finding was entered and a sentence imposed (and, for that matter, served). We agree with the Commonwealth that this case instead is controlled by Commonwealth v. McCulloch, 450 Mass. 483, 488 (2008) (judge lacked authority to vacate guilty finding and convert it into continuance without finding). Moreover, even if the defendant were correct that the judge possessed such authority, the defendant has not shown how the judge abused his discretion in failing to exercise that authority in the defendant's favor.

Order denying motion to convert guilty plea to a continuance without a finding affirmed.