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14-P-1470 Appeals Court
COMMONWEALTH vs. JAMES C. HARDIN.
No. 14-P-1470.
Suffolk. September 10, 2015. - December 7, 2015.
Present: Green, Rubin, & Hanlon, JJ.
Breaking and Entering. Larceny. Practice, Criminal, Complaint,
Dismissal, Appeal by Commonwealth. Jurisdiction.
Complaint received and sworn to in the Roxbury Division of
the Boston Municipal Court Department on March 19, 2014.
Dismissal of two counts of the complaint was ordered by
Franco J. Gobourne, J.
Zachary Hillman, Assistant District Attorney, for the
Commonwealth.
Timothy St. Lawrence for the defendant.
GREEN, J. The Commonwealth and the defendant agree that
the grounds on which a judge of the Boston Municipal Court
dismissed two counts of the complaint against the defendant were
invalid.1 The defendant nonetheless contends that the dismissal
1
The defendant was charged in a four-count complaint.
Count 2 alleged breaking and entering a "ship or motor vehicle
or vessel" in the daytime with intent to commit a felony, G. L.
2
should be affirmed, based on his claim (raised for the first
time in his appellate brief) that the complaint was deficient on
its face. To be specific, the defendant observes that the
complaint failed to specify that the vehicles into which the
defendant broke and entered, and the property he stole, were
owned by someone other than the defendant.2 Since an element of
the crime of breaking and entering is that the defendant broke
into property "owned by someone other than the defendant,"
Commonwealth v. Kalinowski, 360 Mass. 682, 684 (1971), and an
element of the crime of larceny is that "the property stolen
must be 'the property of another,'" Commonwealth v. Souza, 397
Mass. 236, 238 (1986), quoting from G. L. c. 266, § 30(1) (1984
c. 266, § 18. Count 3 alleged larceny of property having a
value of $250 or less, G. L. c. 266, § 30. The defendant
confessed to police that he had broken into two cars and had
taken a stun gun from one of them. His confession was
corroborated by the recovery of the stun gun when he was pat
frisked, his statement that "times [were] tough," an eyewitness
who identified him as the person who had broken into the cars,
and the fact that the defendant was covered in glass shards and
blood. On that state of affairs the defendant appeared before
the judge to enter a guilty plea. After hearing the
prosecutor's recitation of the allegations against the defendant
during the plea colloquy, the judge concluded, sua sponte, that
counts 2 and 3 should be dismissed because they were unsupported
by probable cause.
2
Count 2 of the complaint alleged that the defendant "did
in the day time break and enter a ship, motor vehicle or vessel,
the property of Known to Commonwealth, with intent to commit a
felony . . ." (emphasis added). Similarly, count 3 of the
complaint alleged that the defendant "did steal the property of
Known to Commonwealth."
3
ed.), the defendant suggests that the order of dismissal was
appropriate. We decline to affirm dismissal on the alternative
ground now raised by the defendant, and remand the matter to the
Boston Municipal Court for further proceedings consistent with
this opinion.
To be sure, "[a]n appellate court is free to affirm a
ruling on grounds different from those relied on by the [trial
court] judge if the correct or preferred basis for affirmance is
supported by the record." Commonwealth v. Va Meng Joe, 425
Mass. 99, 102 (1997). However, we are not required to do so,
and we decline in the present circumstances to exercise our
discretion to consider in the first instance the alternative
ground now suggested by the defendant. Put simply, we see no
benefit in the interest either of justice or of judicial economy
in sustaining dismissal of counts 2 and 3 of the complaint. The
defendant has made no showing that the claimed deficiency caused
him any confusion or uncertainty regarding the nature or source
of the charges against him.3 See Commonwealth v. Sullivan, 82
Mass. App. Ct. 293, 297 (2012). Moreover, had the defendant
raised at the plea hearing the challenge to the sufficiency of
the complaint that he now asserts, it would have been a simple
3
Indeed, as we have noted, see note 1, supra, the dismissal
of counts 2 and 3 arose during the defendant's attempt to enter
a guilty plea.
4
matter for the Commonwealth to amend the complaint to address
the alleged deficiencies. See Mass.R.Crim.P. 4(d), 378 Mass.
849 (1979). Any dismissal of the complaint based on a facial
defect would be without prejudice, see Commonwealth v. Burns, 8
Mass. App. Ct. 194, 198 n.2 (1979), and we are at a loss to
discern any benefit to requiring the Commonwealth to file a new
complaint when any inadequacies in the existing complaint may be
so readily remedied.
Our dissenting colleague suggests that we are compelled to
determine the sufficiency of the complaint, because it is a
matter of subject matter jurisdiction. We disagree. Of course
it is true that, as the dissent observes, a deficiency of
subject matter jurisdiction may be raised at any time, and a
complaint that fails to state a crime deprives the court of
jurisdiction to entertain it. However, that does not mean that
we are compelled to consider and determine the sufficiency of
the complaint in the circumstances of the present case. In the
cases cited by the dissent, the defendant had already been
convicted by the time the jurisdictional defect was presented
before the reviewing court. See Commonwealth v. Andler, 247
Mass. 580, 581-582 (1924); Commonwealth v. Cantres, 405 Mass.
238, 239-240 (1989). Accordingly, the question before the court
in those cases was whether to sustain a conviction based on a
legally deficient complaint. More importantly, in our view,
5
following conviction it was no longer open to the Commonwealth
or the court to remedy deficiencies in the form of the
complaint. By contrast, in the present case, the case has not
advanced beyond pretrial proceedings.
As we have observed, by raising his claim in the first
instance on appeal, the defendant has precluded resort to any
such curative measures, were we to consider and determine it.
Moreover, though the claim is one of subject matter
jurisdiction, by declining to consider it in the first instance
we are not entertaining the complaint in its substance, but are
simply returning it to the trial court for consideration of the
question.
The order dismissing counts 2 and 3 of the complaint is
reversed, and the matter is remanded to the Boston Municipal
Court for further proceedings consistent with this opinion.
So ordered.
RUBIN, J. (dissenting in part and concurring in the
judgment in part). If a charging instrument "fails to state a
crime, no court has jurisdiction to entertain it, Commonwealth
v. Andler, 247 Mass. 580, 581-582 (1924), and the jurisdictional
question may be raised at any time. See id. at 581."
Commonwealth v. Cantres, 405 Mass. 238, 239-240 (1989). Indeed,
"[i]t is the duty of the court to consider such a point of its
own motion." Commonwealth v. Andler, supra at 582. Thus, while
I agree with the majority that the judge's basis for dismissal
was in error, I must respectfully dissent from its decision not
to address the alternative ground for dismissal put forward by
the defendant, to which I turn.
Count 2 alleged that the defendant "did in the day time
break and enter a ship, motor vehicle or vessel, the property of
Known to Commonwealth, with intent to commit a felony . . ."
(emphasis added). This count failed to allege an essential
element of the offense of breaking and entering, G. L. c. 266,
§ 18, that the defendant broke into property belonging to
another person. With respect to count 2, therefore, this case
is controlled in all material respects by Commonwealth v.
Wilson, 72 Mass. App. Ct. 416, 418 (2008), and dismissal without
prejudice was required.
Count 3 presents a different question. It charged the
defendant with larceny of property having a value of $250 or
2
less. The complaint alleged similarly that the defendant "did
steal the property of Known to Commonwealth, such property
having a value of $250 or less." See G. L. c. 266, § 30.
At first blush, this count, too, appears to fail to state
that the rightful owner of the property was a person other than
the defendant, an essential element of the offense. The
defendant's argument to this effect, though, founders upon the
shoals of Commonwealth v. Kozlowsky, 238 Mass. 379, 383 (1921)
(Kozlowsky), where the Supreme Judicial Court said, "The word
'steal' as used in an indictment has . . . become a term of art
and includes the criminal taking of personal property of another
with intent to deprive the owner permanently of the use of it.
The words of the indictment at bar [which uses the word 'steal']
. . . in brief and simple form express the meaning that the
[property] was not the property of the defendant but was the
property of some third person whose name was not stated." The
property-of-another element of the offense, then, is adequately
alleged.
What remains is the defendant's argument that the complaint
with respect to count 3 failed to comply with G. L. c. 277,
§ 25, because it neither "allege[d] the name of the [property]
owner," nor "describe[d] the property with sufficient certainty
in other respects to identify the act." See Kozlowsky, supra
("[I]f an indictment for a crime [involving] the [commission or]
3
attempted commission of an injury to property, describes the
property with sufficient certainty [in other respects to
identify the act], the name of the owner need not be alleged").
However, while the question is not free from doubt -- it may be
that the statute was enacted precisely to create an avenue for
avoiding what would otherwise be a facially defective
indictment, see Commonwealth v. Kalinowski, 360 Mass. 682, 684
(1971) -- I am not persuaded, at least as presently advised,
that failure to comply with the statute creates a jurisdictional
defect in a charging instrument. But cf. Kozlowsky, supra at
383 (leaving the question open). I therefore conclude that we
are not required to order the dismissal of count 3, and I agree
with the ultimate conclusion of the majority that in these
circumstances we ought not exercise our discretionary power to
do so.