Commonwealth v. Hardin

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. The defendant nonetheless contends that the dismissal 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 fr 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."

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

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. 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,



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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.