Massachusetts Criminal Defense Lawyer Blog

Massachusetts judge imposed a CWOF or Continuance without a Finding, in Reckless Endangerment of a child case, involving Fall River pool death. The case against Brian Shanahan and Jeff Carter for reckless endangerment of a child was Continued Without a Finding for one year. The news reports from the Herald News indicates that after one year the matter will be dismissed.

This depiction of a CWOF can be confusing. While the case is technically closed, it is not dismissed as if it did not occur but appears on a board of probation records and the case is considered closed following the probation period.

However, for the one year, period, the defendants will be on probation. Any violation of a CWOF would subject the defendants to a probation violation hearing. As can be seen from the picture in the new accounts with the defendant's raising their hand in front of the court, both defendants admitted that the charges against them were true after a reading of the facts by the district attorney.

The benefit of a CWOF is that it is technically not considered a conviction; however, the disposition is an admission that the charges against a defendant are true and requires a defendant to admit the truth of the charges in open court.

If there are any new charges or is a failure to abide by the probationary conditions, a defendant can be violated on the probation and sentenced up to the maximum sentence. In a child endangerment case, the maximum sentence is 2.5 years; consequently, a violation of probation could result in jail time, or the revocation of the CWOF and the court imposing a guilty finding. While a CWOF has benefits, including the fact that it is technically not a conviction, it is not the equivalent of the case being dismissed and is sometimes misunderstood by the public.

In this case, the Fall River District Court judge imposed the CWOF over the objection of the Commonwealth. In Massachusetts, a defendant has the right to submit a tender of plea to a judge by filing out what is referred to in court as a "green sheet". If the judge accepts the defendant's recommendation, the judge will impose the sentence regardless of the district attorney's suggested sentence. If the judge exceeds the defendant's sentence recommendation, a Massachusetts criminal lawyer can schedule the case for trial or accept the sentence the judge would impose.

Massachusetts child endangerment and drug charges were brought against an
Attleboro couple according to a reporter from The Sun Chronicle .
The couple was found asleep in their vehicle with their 16 month old son in the back seat. Authorities state the couple was allegedly waiting to meet a drug dealer. According to Attleboro police officials, Gaudreau III, and Bassett, were arrested in the parking lot outside the Dollar Tree Store on Pleasant Street, according to the Sun Chronicle report.

The couple was found with heroin and prescription drugs. Drug offenses in Massachusetts were made more difficult to prove by the United States Supreme Courts' decision in Melendez-Diaz v. Massachusetts.

The police found two hypodermic needles on the floor of their vehicle and another was found in the pocket of Gaudreau's sweatpants. Paraphernalia with alleged heroin residue and brown liquid was also found. Bassett was in possession of 11 pills consisting of the prescription drugs of Suboxone and Diazapan.

To prove a drug possession charge in Massachusetts according, the Commonwealth must prove the following elements, that the defendant possessed an illegal drug, meaning that the defendant had the ability to exercise dominion and control over it and that it meets the legal definition under Massachusetts drug laws, which requires the Commonwealth to call a chemist or expert to testify as to the identity of a particular drug.

Gaudreau was ordered held in jail without bail for a probation violation hearing. When a defendant is on probation for criminal charges and commits a new offense, a judge can order a defendant held without bail pending the probation violation hearing. Given the seriousness of the new charges, it is not surprising that Gaudreau was held.

Bassett was ordered held in jail on $2,500 cash bail. The child was taken to Sturdy Memorial Hospital for an exam and placed in the custody of the State Department of Children and Families, according to the reporter. In addition to being charged with possession of heroin and unlawful possession of prescription pills, both also face child endangerment charges . The Attleboro couple is due back in court on February 7, 2012.

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