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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.
