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SJC-11879

                COMMONWEALTH   vs.   KENNETH DYKENS.



      Middlesex.     October 5, 2015. - February 17, 2016.

 Present:   Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
                            Hines, JJ.


Attempt. Burglary. Burglarious Implements. Practice,
     Criminal, Plea, Postconviction relief, Duplicative
     convictions, Double jeopardy, Indictment.



     Indictments found and returned in the Superior Court
Department on March 31, 2005.

     A motion to withdraw a plea and vacate convictions, filed
on October 11, 2013, was heard by Peter M. Lauriat, J.

     The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.


     Timothy St. Lawrence for the defendant.
     Hallie White Speight, Assistant District Attorney, for the
Commonwealth.


    CORDY, J.   This case is before us following the denial by a

Superior Court judge of Kenneth Dykens's motion to vacate

several convictions resulting from his guilty pleas in
                                                                   2


connection with a February, 2005, arrest for attempted burglary

and other offenses.   See Mass. R. Crim. P. 30 (a), as appearing

in 435 Mass. 1501 (2001).   Specifically, he seeks to vacate two

of his three convictions of attempted unarmed burglary in

violation of G. L. c. 274, § 6, contending they are duplicative

of his conviction on the third, and thus barred under principles

of double jeopardy.   He also seeks to vacate his conviction of

possession of a burglarious tool or implement (a rock) in

violation of G. L. c. 266, § 49, on the ground that the

indictment failed to state a crime, and the Superior Court

therefore lacked jurisdiction to accept a guilty plea and impose

a sentence on it.

    We transferred Dykens's appeal to this court on our own

motion to decide whether, where a defendant has pleaded guilty

to multiple counts of attempted unarmed burglary, he may

subsequently challenge his guilty pleas pursuant to Mass. R.

Crim. P. 30 (a), on double jeopardy grounds or whether he has

waived any such claim by pleading guilty; and whether, where a

defendant over the course of a single late evening and early

morning unsuccessfully tried to break into a home through three

different access points, he may be charged with multiple counts

of attempted unarmed burglary pursuant to G. L. c. 274, § 6, or

whether those acts constitute a single continuous course of

conduct rendering conviction on multiple counts duplicative.
                                                                     3


    We conclude that although Dykens the defendant may bring

his claim under rule 30 (a), the attempt statute, G. L. c. 274,

§ 6, permits multiple convictions for discrete, completed

attempts of unarmed burglary; that whether separate indictments

or complaints adequately charge separate attempts must be

determined on the particulars of each case; and in the present

case, that Dykens's multiple convictions and punishments were

for separate attempts, and therefore his multiple convictions

and punishments do not violate double jeopardy.    We further

conclude that the court lacked jurisdiction to accept Dykens's

guilty plea as to the indictment charging possession of a

burglarious tool or implement because the indictment failed to

allege a crime.   Accordingly, we affirm in part and reverse in

part the denial of Dykens's motion for postconviction relief.

    1.   Background.    In the early morning hours of February 10,

2005, John and Jacqui Cram of Malden telephoned 911 after they

heard the sounds of breaking glass and saw a figure moving

around on their property.    Malden police Officers Southbridge

and Killian responded to the call and observed the following on

their arrival:    (1) a ladder that the Crams had last seen lying

on the ground had been placed against the house to provide

access to a second-story window; (2) a screen had been torn off

a first-floor window; and (3) a sliding glass door at the rear

of the house had been smashed.   A large rock which had not
                                                                   4


previously been on the deck lay nearby and apparently had been

used to break the glass.

     The officers observed fresh footprints in the snow, which

Southbridge followed through neighboring streets and yards and

over a chain link fence; he discovered Dykens hiding among some

rocks.   The officer ordered Dykens not to move, but Dykens

attempted to escape.   The two men scuffled, and Killian

eventually arrived to assist.   After a struggle, the officers

were able to subdue Dykens and handcuff him.   As they stood him

up to transport him to the police station, Dykens kicked Killian

in the face with a shod foot.

     In March, 2005, a grand jury indicted Dykens on seventeen

counts stemming from his arrest, including three counts of

attempted unarmed burglary1 and one count of possession of a


     1
       Three separate indictments were returned charging Kenneth
Dykens with violating G. L. c. 274, § 6, "on or about February
10." The first indictment charged, in relevant part, that
"Kenneth Dykens . . . did attempt to break and enter the
dwelling house of John Cram and Jacqui Cram in the nighttime
with intent to commit a felony therein, and in such attempt did
smash a glass sliding door in order to facilitate entry into the
home . . . but did fail in the perpetration of said offense, or
was intercepted, or prevented in the perpetration of the said
attempted offense" (emphasis added). The second indictment at
issue charged, in relevant part, that "Kenneth Dykens . . . did
attempt to break and enter the dwelling house of John Cram and
Jacqui Cram in the nighttime with intent to commit a felony, and
in such attempt did remove an outer screen in order to
facilitate entry into the home . . . but did fail in the
perpetration of said offense, or was intercepted, or prevented
in the perpetration of the said attempted offense" (emphasis
                                                                   5


burglarious instrument (a heavy rock), which are at issue in

this appeal.2   Dykens pleaded not guilty to all charges at his

arraignment, and subsequently filed a motion to dismiss eight of

the seventeen indictments.   As to two counts of attempted

unarmed burglary, Dykens argued that they were duplicative of a

third count.    A judge denied the motion as to the multiple

indictments for attempted unarmed burglary.

     On October 17, 2005, Dykens pleaded guilty to the three

counts of attempted unarmed burglary, being a habitual offender,

assault with intent to maim, assault and battery with a

dangerous weapon, possession of a burglarious instrument,

assault and battery on a public employee, and resisting arrest.

Dykens was sentenced to from seven years to seven years and one

day in State prison on the indictment charging him with assault

with intent to maim, five years in State prison concurrent with

that sentence on the indictment charging him with attempted


added). The third indictment at issue charged, in relevant
part, that "Kenneth Dykens . . . did attempt to break and enter
the dwelling house of John Cram and Jacqui Cram in the nighttime
with intent to commit a felony therein, and in such attempt did
position a ladder in order to facilitate entry into the home
. . . but did fail in the perpetration of said offense, or was
intercepted, or prevented in the perpetration of the said
attempted offense" (emphasis added).
     2
       Dykens also was indicted for assault with the intent to
maim, assault and battery with a dangerous weapon (a shod foot),
malicious destruction of property with a value over $250,
assault and battery on a public employee (two counts), resisting
arrest, and being a habitual offender.
                                                                     6


unarmed burglary as a habitual offender, and five years

probation from and after his completed sentences on the other

counts.

    After Dykens was released from prison, a probation

violation warrant issued.    On March 22, 2013, a Superior Court

judge held a final probation surrender hearing.    He found Dykens

in violation of the term of his probation and sentenced him to

two years in a house of correction on the charge of assault and

battery with a dangerous weapon, and an additional two years on

the charge of possessing a burglarious implement, to be served

from and after that.     The judge also terminated Dykens's

probation on the remaining convictions.

    On October 11, 2013, Dykens moved to vacate two of his

convictions of attempted armed burglary and his conviction of

possessing a burglarious tool or implement pursuant to rule

30 (a).   In his motion, Dykens asserted that the convictions of

attempted burglary were duplicative, and should therefore be

vacated and dismissed.    He also argued that the rock he used to

break the sliding door was not a burglarious instrument within

the meaning of G. L. c. 266, § 49, and that his conviction under

the statute should be vacated because the indictment was

defective for failing to state a crime.    On September 2, 2014,

the judge denied the motion.    Dykens timely appealed.
                                                                      7


    2.   Discussion.    a. Collateral attack on guilty plea.   Both

the double jeopardy clause of the Fifth Amendment to the United

States Constitution and Massachusetts common law prohibit the

imposition of multiple punishments for the same offense.

Commonwealth v. Rollins, 470 Mass. 66, 70 (2014), citing

Marshall v. Commonwealth, 463 Mass. 529, 534 (2012).    It is well

settled in our jurisprudence that a "guilty plea will not

preclude a court from hearing a constitutional claim that the

State should not have tried the defendant at all."     Commonwealth

v. Negron, 462 Mass. 102, 104 (2012), quoting Commonwealth v.

Clark, 379 Mass. 623, 626 (1980).

    A guilty plea is "an admission of the facts charged and is

itself a conviction" (quotation and citation omitted), Negron,

462 Mass. at 105, and is properly challenged under rule 30 (a),

which provides:

         "Any person who is imprisoned or whose liberty is
    restrained pursuant to a criminal conviction may at
    any time, as of right, file a written motion
    requesting the trial judge to release him or her or to
    correct the sentence then being served upon the ground
    that the confinement or restraint was imposed in
    violation of the Constitution or laws of the United
    States or of the Commonwealth of Massachusetts."

Mass. R. Crim. P. 30.

    In Negron, 462 Mass. at 106-107, we held that a defendant

is not precluded from challenging his convictions (based on

guilty pleas) on double jeopardy grounds where the defendant
                                                                      8


claims that the charges pleaded to are duplicative on their face

and further expansion of the record or evidentiary findings are

not required.    Having concluded that the defendant could

challenge the convictions as duplicative, the court went on to

analyze whether they were in fact duplicative.3    Id. at 108-111.

     The relevant convictions in Negron were for different

crimes, armed assault in a dwelling and aggravated burglary,

under different statutes, but arising out of the same criminal

conduct.    Id. at 103.   The court analyzed the elements of the

crimes and concluded that the former was not a lesser included

offense of the latter.    Id. at 109-111.   Consequently, they were

not duplicative and convictions of both did not violate double

jeopardy.   Id. at 109.

     Dykens's double jeopardy challenge to his multiple

convictions of attempted unarmed burglary does not involve a

claim that some of the charges are lesser included offenses of

the others (and thus duplicative), but rather that the

underlying conduct on which they are based constitutes but a

single continuing offense and thus multiple convictions and


     3
       The court in Commonwealth v. Negron, 462 Mass. 102, 108
n.6 (2012), left open the question whether the defendant, having
pleaded guilty, would relinquish his entitlement to bring a
double jeopardy challenge where a claim of duplicative
convictions required an expansion of the record or an
evidentiary hearing. We need not answer that question in this
case.
                                                                    9


punishments for that offense are duplicative and violative of

his right to be free from double jeopardy.

    The record in this case includes the three indictments,

each alleging a different act in furtherance of each attempt,

and the transcript of the hearing at which Dykens pleaded guilty

to all three.   During the plea hearing, the prosecutor briefly

described the evidence that would have been presented as to each

of the three indictments, including Dykens's failed efforts to

gain entry by different means through three separate points of

access:    a window on the second floor (toward which he placed a

ladder against the house); a window on the first floor (from

which he removed a screen); and a sliding glass door on the

first floor in the rear of the home (which he shattered with a

rock).    Dykens admitted that he had done each of the things

alleged by the prosecutor with the intent to enter the home

through the three different access points, and thus, that he was

guilty of three different attempts to burglarize the same home.

    Where the indictments on their face charge three attempts

to burglarize the same residence on or about the same date, and

the record includes at least a minimal description of the key

evidence establishing each of those attempts, we can decide

whether the indictments are duplicative without going beyond the

record, and therefore, Dykens may bring a double jeopardy

challenge.
                                                                     10


     b.   Duplicative convictions.   Where a single statute is

involved, we must decide "whether two [or more] discrete

offenses were proved under that statute rather than a single

continuing offense" (citations omitted).     Commonwealth v.

Traylor, 472 Mass. 260, 268 (2015).

     Our inquiry starts with what "unit of prosecution" the

Legislature intended as the punishable act for violations of the

attempt statute, G. L. 274, § 6.     See Rollins, 470 Mass. at 70;

Commonwealth v. Rabb, 431 Mass. 123, 128 (2000).4    We begin with

the language and purpose of the statute to determine whether it

explicitly addresses the appropriate unit of prosecution, and if

it does not, "to ascertain that unit, keeping in mind that any

ambiguity that arises in the process must be resolved, under the

rule of lenity, in the defendant's favor."     Rollins, supra,

quoting Rabb, supra.   Also "[r]elevant to discerning a criminal

statute's unit of prosecution is the continuous offense

doctrine, which recognizes that certain criminal statutes are

intended to punish just once for a continuing course of conduct,

rather than for each and every discrete act comprising that

     4
       Although many of our cases have defined the appropriate
unit of prosecution under a particular statute, we have not
defined the term itself. We decide now that a unit of
prosecution is a criminal act or course of conduct punishable at
law. See United States v. Universal C.I.T. Credit Corp., 344
U.S. 218, 225-226 (1952).
                                                                   11


course of conduct."   Commonwealth v. Horne, 466 Mass. 440, 450

(2013).

     The Massachusetts attempt statute, G. L. 274, § 6, punishes

"[w]hoever attempts to commit a crime by doing any act toward

its commission, but fails in its perpetration, or is intercepted

or prevented in its perpetration . . . ."   Here, we construe the

attempt statute in conjunction with the underlying substantive

offense of unarmed burglary.5

     The language of the attempt statute is not explicit as to

the permissible unit of prosecution.   Dykens asks us to

interpret the language in § 6 according to the rules for

construction of statutes set out in G. L. c. 4, § 6, Fourth,

which provides in relevant part that "[w]ords importing the

singular number may extend and be applied to several persons or

things, words importing the plural number may include the

singular . . ." (emphasis added).   When applied to the language

of the attempt statute, in Dykens's view, "any act" becomes "any

act or acts."   Accordingly, Dykens believes, we can infer




     5
       General Laws c. 266, § 15, punishes "[w]hoever breaks and
enters a dwelling house in the night time, with the intent [to
commit a felony], or, having entered with such intent, breaks
such dwelling house in the night time, the offender not being
armed, nor arming himself in such house, with a dangerous
weapon, nor making an assault upon a person lawfully therein
. . . ."
                                                                   12


legislative intent that all overt acts directed toward the

commission of a crime be punished by a single attempt charge.

    We are not persuaded by Dykens's reasoning.     By its plain

language, the purpose of the attempt statute is to penalize

those individuals who would have achieved their criminal

objective but for factual circumstances that result in failure,

interception, or prevention of the crime.    See Commonwealth v.

Kennedy, 170 Mass. 18, 20 (1897) ("aim of the [attempt statute]

is not to punish sins, but is to prevent certain external

results").   Therefore, we conclude that the Legislature did not

intend to reward a defendant who, on failing to accomplish his

criminal endeavor in one manner, undertakes to achieve the

substantive crime anew in another.

    Nor do we conclude that the continuing offense doctrine

advances Dykens's reading of the statute to impose a single

punishment for distinct attempts.    Dykens relies on a decision

from the Appeals Court for the proposition that charged offenses

are duplicative where the acts underlying the offense are part

of a "continuous stream of conduct occurring within a short time

frame and governed by a single criminal design," and thus united

in "time, place, and intent."   Commonwealth v. Howze, 58 Mass.

App. Ct. 147, 153 (2003), overruled on other grounds by

Commonwealth v. Kelly, 470 Mass. 682, 700-701 (2015).     In Howze,

supra at 147, 153, the Appeals Court held that, where the
                                                                   13


defendant was convicted of indecent assault and battery on a

child and of rape of a child, "the act of removing the victim's

clothing was sufficiently bound up with and necessary to the act

of penetration that due process [forbade] separating the conduct

into discrete units for prosecution."   See also Commonwealth v.

Suero, 465 Mass. 215, 220-221 (2013) (conviction of indecent

assault and battery vacated as duplicative of rape convictions

where former rested on removal of rape victim's underwear that

was "incidental and necessary to the rape").

    Howze and Suero are inapposite.     Although Dykens's acts

occurred close together in time and at the same home, his acts

were not "bound up with and necessary to" one another as the

defendant's actions were in those cases.   Howze, 58 Mass. App.

Ct. at 153.   Rather, his attempts to gain access via different

entry points of the dwelling each could have resulted in a

successful break of the dwelling.   A different conclusion could

be drawn if the defendant was charged with three separate

attempts based on the acts of:   (1) the placement of a ladder to

reach a window, (2) the removal of the screen from that same

window, and (3) the use of a rock to then break the glass on

that window in an effort to gain access.   In such circumstances,

the three acts would in fact be "bound up with and necessary to"

the completion of a single crime, much as the removal of

underwear in the perpetration of a rape.
                                                                   14


    Dykens also points to our decision in Commonwealth v.

Bolden, 470 Mass. 274, 274-275 (2014), in which we held that a

defendant could not be twice convicted of aggravated burglary

under G. L. c. 266, § 14, for breaking and entering a single

dwelling.     In that case, the defendant broke into a dwelling

where a husband and wife resided and assaulted the husband in

the basement.    Id. at 275-276.   He then broke through an

interior door leading to the first floor and assaulted the wife.

Id. at 276.    He was subsequently charged with two counts of

aggravated burglary, one premised on the break into the house

and the assault of the husband, and the other on the break of

the interior door and assault of the wife.     Id. at 276.    We

vacated the conviction on the second indictment, concluding that

"once a dwelling is 'broken,' any subsequent breaks occurring

therein -- reasonably close in time and purpose -- are but a

continuation of the offense and thus insufficient to support

separate convictions under § 14."     Id. at 279.   We stated:

         "Once a person has broken and entered any part of
    the dwelling, at night, . . . with intent to commit a
    felony therein, the predicate offense of burglary as
    to that dwelling is complete. Because arming oneself
    with a dangerous weapon and assaulting the inhabitants
    of that dwelling merely aggravate that singular
    predicate offense, the Commonwealth may not aggregate
    such actions into multiple units of prosecution under
    § 14."

Id. at 280.    Dykens argues that if multiple breaks of a single

dwelling do not create distinct, punishable offenses, then
                                                                   15


multiple attempted breaks into a single dwelling must also

constitute a continuous offense.

     Dykens's reliance on Bolden is misplaced.   The unit of

prosecution for aggravated burglary is different from the unit

of prosecution for attempted burglary.   For the latter the

proper unit of prosecution is the act necessary to prove the

inchoate offense of attempt, and not the substantive crime of

burglary.   Thus, although in Bolden the unit of prosecution was

the act of breaking and entering a singular dwelling, the unit

of prosecution for attempted burglary is "any act toward [the

substantive crime's] commission."   G. L. c. 274, § 6.

     We have consistently interpreted the attempt statute to

require "a showing that the defendant, after preparing to commit

the crime, has taken such overt acts toward fulfilling the crime

that 'come near enough to the accomplishment of the substantive

offence to be punishable.'"   Commonwealth v. Bell, 455 Mass.

408, 412 (2009), quoting Commonwealth v. Peaslee, 177 Mass. 267,

271 (1901).   Moreover, where distinct acts form the basis of

separate indictments, the Commonwealth must still prove all

elements required by the attempt statute for each charge.6


     6
       Dykens does not dispute that he possessed the requisite
intent, nor does he contest that he failed to achieve the
substantive crime of unarmed burglary. We therefore focus on
whether the facts alleged in each indictment support a finding
of distinct overt acts that support independent convictions.
                                                                  16


    Here, each of Dykens's acts, as alleged in the indictments,

fit squarely within the definition of an overt act.   See

Commonwealth v. Foley, 24 Mass. App. Ct. 114, 115 (1987)

(complaint or indictment charging attempt must specify overt

act).   Positioning a ladder to facilitate entry into the

dwelling, removing an outer screen to facilitate entry into the

dwelling, and smashing a glass sliding door to facilitate entry

each constitute an independent act sufficient to warrant a

charge of attempt.   In each instance, Dykens, after having

entered upon the Crams' property with the intent to break into

their home, was in a position to accomplish the substantive

offense absent his apparent inability to gain entry at the

different access points.   In other words, with each failure to

break into the dwelling, the crime of attempt was complete.

    Although the proximity in time, manner, and place of

Dykens's conduct is relevant to distinguishing discrete acts

from a continuous act, such factors are not in and of themselves

dispositive.   Rather, Dykens's attempts to gain entry at

different access points of the dwelling weigh heavily against a

determination that there was a "continuous stream of conduct."

Howze, 58 Mass. App. Ct. at 153.   With each failure to gain

entry, Dykens had the opportunity to abandon his endeavors.

Instead, he moved on to another potential point of access to the

home and committed further unrelated acts in an effort to break
                                                                   17


in, finally fleeing when he awakened the residents inside.   The

Legislature surely did not intend to reward such persistence by

encompassing multiple, discrete attempts within a single unit of

prosecution.

     Of course, our analysis is not so granular as to say that

picking up a ladder is not part of the same course of conduct

where the defendant then proceeds to place the ladder against a

house.   Similarly, a defendant who repeatedly batters a single

door with the purpose of gaining entry has likely committed only

one attempt at breaking and entering.   Dykens's case highlights

a long-standing comprehension in our jurisprudence of the

distinction between constituent acts that, taken together, may

amount to an attempt and discrete acts that, in and of

themselves, establish the elements required to prove the

inchoate offense.   See Peaslee, 177 Mass. at 271 (distinguishing

between act sufficient to establish attempt and those

preparatory actions that, taken together, may amount to

attempt).7   See also Commonwealth v. Burns, 8 Mass. App. Ct. 194,


     7
       A similar distinction is made in United States v.
Resendiz-Ponce, 549 U.S. 102, 109 n.5 (2007), which Dykens
relies on in his brief for the position that "an attempt
involving multiple overt acts might conceivably qualify for
several separate offenses, thus perversely enhancing, rather
than avoiding, the risk of successive prosecution for the same
wrong." In Resendiz-Ponce, the defendant, a Mexican citizen,
was charged with attempting to unlawfully enter the United
States based on the following acts: he walked into an
                                                                  18


196 (1979), citing Peaslee, supra at 271-274 ("The essence of

the crime of attempt is that the defendant has taken a step

towards a criminal offense with specific intent to commit that

particular crime. . . . It is not enough to allege that a

defendant has formed the intent to commit a crime or that he has

merely made preparations for the commission of a crime"

[quotation and citation omitted]).

    Thus, we conclude that multiple attempted breaks of a

single dwelling furthered by separate acts, each coming near to

the accomplishment of the crime of burglary, and not bound up

with and necessary to each other, may be charged as separate

offenses.   The question whether factual allegations within

multiple indictments adequately charge separate attempts so as

to permit their prosecution is one of fact and law and dependent

on the particulars in each case.   The question is one that, in

the first instance, may be for the motion or trial judge in the

context of a motion to dismiss and, should the case proceed to

trial, is a factual question that a properly instructed jury



inspection area; presented a misleading identification card; and
lied to the inspector. Id. at 103, 109. The United States
Supreme Court explained that "[i]ndividually and cumulatively,
those acts tend to prove the charged attempt -- but none was
essential to the finding of guilt in this case. All three acts
were rather part of a single course of conduct culminating in
the charged 'attempt.'" Id. at 109. Thus the charged conduct
constituted a single attempt, which failed a single time. In
contrast, Dykens committed acts at three separate access points.
                                                                   19


must decide.     In any event, after a jury verdict of guilty on

multiple convictions, and on the request of defense counsel for

a judgment notwithstanding the verdict, "a judge also must

determine whether the convictions violate the defendant's

rights" under the principles of double jeopardy.     Suero, 465

Mass. at 222.8

     c.   Jurisdictional defect.    Dykens also asserts that his

conviction under G. L. c. 266, § 49, for possession of a

burglarious tool or implement must be vacated because a rock is

not a tool or an implement within the meaning of the statute.9


     8
       Under the doctrine of merger, where the facts support
multiple attempt charges but where the defendant ultimately
succeeds in committing the substantive crime, the attempt
resulting in completion of the crime would merge with the
substantive offense. Any other charged attempts, however, could
stand as separate convictions so long as the Commonwealth proved
the requisite elements of the separately charged attempts
including the intent to commit the underlying crime, and an
overt act coming near to its accomplishment. The analysis here
is straightforward where Dykens admitted to having the requisite
intent in connection with each attempt to break and enter the
Crams' home, as well as to having committed separate overt acts
while on the victims' property in his efforts to gain access to
the home through three different points of entry.
     9
       General Laws c. 266, § 49, punishes "[w]hoever makes or
mends, or begins to make or mend, or knowingly has in his
possession, an engine, machine, tool or implement adapted and
designed for cutting through, forcing or breaking open a
building, room, vault, safe or other depository, in order to
steal therefrom money or other property, or to commit any other
crime, knowing the same to be adapted and designed for the
purpose aforesaid, with intent to use or employ or allow the
same to be used or employed for such purpose, or whoever
knowingly has in his possession a master key designed to fit
                                                                   20


He seeks review on the ground that the indictment was defective

in failing to allege a crime, and the court lacked jurisdiction

to accept his plea and impose a sentence for such conduct.     "No

court has jurisdiction to sentence a defendant for that which is

not a crime."   Commonwealth v. Wilson, 72 Mass. App. Ct. 416,

418, quoting Commonwealth v. Andler, 247 Mass. 580, 582 (1924).

We agree.

    "We interpret statutory language to give effect consistent

with its plain meaning and in light of the aim of the

Legislature unless to do so would achieve an absurd or illogical

result" (quotations omitted).   Commonwealth v. Scott, 464 Mass.

355, 358 (2013).   In 1853, the Legislature enacted the

predecessor of G. L. c. 266, § 49, entitled, "An Act concerning

Implements of Burglary."   See St. 1853, c. 194.   The statute

came after the Committee on the Judiciary was tasked with

"consider[ing] the [e]xpediency of providing for the punishment

of persons making [b]urglar tools, or having such in their

possession, with intent that they shall be used." 1853 House J.

at 629.   The bill containing the apparent final version of the

statute was reported from the Committee on the Judiciary and

passed by both the House of Representatives and the Senate;



more than one motor vehicle, with intent to use or employ the
same to steal a motor vehicle or other property therefrom
. . . ."
                                                                    21


there is no mention of any amendments to the bill.    See 1853

House J. at 680, 762; 1853 Senate J. at 529, 538, 551.

    From this history we can infer that the statute was enacted

with the purpose of punishing individuals making or possessing

burglar's tools.    A question remains, however, as to what

constitutes a "tool" or "implement" under § 49, as the statute

does not define these terms.    We therefore look to the ordinary

meaning of the word as of 1853, the year the statute was

enacted.   See Kerins v. Lima, 425 Mass. 108, 111 n.5 (1997)

(where term in statute is undefined, we may conclude that

Legislature intended definition that would have been available

at time original statute enacted).    The 1845 edition of

Webster's dictionary defined "tool" as "[a]n instrument of

manual operation, particularly such as are used by farmers and

mechanics; as, the tools of a joiner, cabinet-maker, smith or

shoemaker."   An American Dictionary of the English Language 798,

vol. II (1845).    "Implement" was defined as "[w]hatever may

supply wants: particularly, as now used, tools, utensils,

vessels, instruments; the tools or instruments of labor . . . ."

An American Dictionary of the English Language 870, vol. I

(1845).

    From these definitions, we can conclude that the words

"tool" and "implement" refer to man-made, rather than naturally

occurring, items.    This conclusion is supported by other
                                                                  22


language in the statute, which further describes tools and

implements as those "adapted and designed for cutting through,

forcing or breaking open."    G. L. c. 266, § 49.

    Our reading of § 49 to exclude naturally occurring objects

is also consistent with this court's prior interpretations of

the statute.    We have long recognized that the statute

encompasses both ordinary tools and those designed specifically

for burglary.    See Commonwealth v. Tivnon, 8 Gray 375, 381

(1857) ("A chisel or centre-bit, though a tool in common use for

ordinary purposes, is quite as efficacious in the hands of a

burglar to carry out his felonious intent, as a jimmy or a lock-

picker, which is made for the sole purpose of being used to

break and enter buildings."); Commonwealth v. Jones, 355 Mass.

170, 176-177 (1969) (ordinary tools may take on character of

burglarious tools if they are intended to be used for

burglarious purposes).    See also Commonwealth v. Krasner, 358

Mass. 727, 731, S.C., 360 Mass. 848 (1971) (battering ram a

burglarious implement under § 49); Commonwealth v. Faust, 81

Mass. App. Ct. 498, 500-501 (2012) (screwdrivers, knife, and

flashlights are burglarious instruments under § 49);

Commonwealth v. Aleo, 18 Mass. App. Ct. 916, 916-917 (1984)

(screwdrivers and dent pullers are burglarious implements under

§ 49); Commonwealth v. Dreyer, 18 Mass. App. Ct. 562, 565 (1984)

(screwdriver a burglarious implement under § 49).    In no case
                                                                   23


have we found that a naturally occurring object, such as a rock,

is a tool or an implement within the meaning of the statute.

    Notwithstanding this fact, the Commonwealth contends that

the rock used by Dykens to smash the Crams' glass door could

have been altered in some way to make it more efficacious in

smashing windows.   Even if this were the case, in light of the

purpose and meaning of § 49, we cannot conclude that a rock is a

tool or an implement designed or adapted to effect an

individual's burglarious intent.   Rather we hold that the words

"tool" and "implement," as they appear in § 49, refer to man-

made instruments.

    In one of our earliest cases addressing § 49, we held that

an indictment alleging a violation of St. 1853, c. 194 is

supported by proof that some of the implements described in the

indictment were in the possession of the defendant, and "adapted

and designed for the unlawful purpose specified."   Tivnon, 8

Gray at 380.   Here, the indictment failed to identify an

implement "adapted and designed" for breaking into a building,

G. L. c. 266, § 49, because a rock is not a tool or implement

within the meaning of § 49.   Where an indictment fails to allege

a fact necessary to constitute an offense, it is defective, and

"no court has jurisdiction to entertain it."   Commonwealth v.

Cantres, 405 Mass. 238, 239-240 (1989).   Because we conclude

that a rock is not a tool or implement under § 49, the
                                                                 24


indictment in Dykens's case failed to allege a crime for which

the court could accept a guilty plea, and Dykens's conviction

must be vacated.

    3.   Conclusion.   For the reasons discussed herein, the

denial of Dykens's motion to vacate two of his convictions of

attempted unarmed burglary is affirmed.   The denial of his

motion to vacate his conviction of possession of a burglarious

tool or implement is reversed, and the matter is remanded to the

Superior Court for the dismissal of that indictment.

                                    So ordered.
    DUFFLY, J. (dissenting, with whom Lenk and Hines, JJ.,

join).   The court today upholds three convictions of attempted

unarmed burglary of a single dwelling on a single night, based

on the defendant's guilty pleas acknowledging his intent to

commit unarmed burglary of the dwelling.    It is conceivable that

a person properly could be convicted of three attempts of

unarmed burglary of the same dwelling in a single night, and the

defendant here acknowledged in his plea that he intended to

commit an unarmed burglary and undertook the acts separately

alleged in the indictments:   removing an outer screen,

positioning a ladder, and smashing a glass door with a rock.     As

to the indictment alleging the overt act of "smash[ing] a glass

sliding door in order to facilitate entry into the home", I

concur in the judgment of the court that the evidence supports a

conviction of attempted unarmed burglary.   In addition to

acknowledging that he had smashed the glass door with a rock,

intending to burglarize the dwelling, the defendant agreed with

the prosecutor's statement at the plea colloquy that, before

fleeing, he had been standing on the deck, at the rear door, and

that he "had been trying to force the rear door."

    As to the other two acts which form the basis of the other

two indictments, but were "not the final act in a necessary

sequence," Commonwealth v. McWilliams, 473 Mass.      ,      (2016)

(McWilliams), the evidence fails to show that each act was "so
                                                                      2


close to the commission of the crime that a reasonable jury

could conclude that it was virtually certain that he would have"

committed the substantive offense of unarmed burglary.      Id.

Therefore, I respectfully dissent.

     The attempt statute, G. L. c. 274, § 6, was enacted in

1832.    See St. 1832, c. 62.   It criminally punishes "[w]hoever

attempts to commit a crime by doing any act toward its

commission, but fails in its perpetration, or is intercepted or

prevented in its perpetration . . . ." The analytical framework

which heretofore has informed our understanding of the statutory

crime of attempt was developed well over a century ago and has

remained unaltered to this day.     As we recently reiterated,

"[t]here are two categories of attempt."      McWilliams, supra at

.   In the first category, a defendant has undertaken "the last

act required to complete the crime, but for some unanticipated

reason, his or her efforts are thwarted, whether by bad aim or a

mistake in judgment."    Id.    See Commonwealth v. Bell, 455 Mass.

408, 413 (2009) (Bell), quoting Commonwealth v. Peaslee, 177

Mass. 267, 271 (1901) (Peaslee).1     Ascertaining "criminal


     1
       The "last act" required to be undertaken by a defendant
refers to the act "which sets in motion natural forces that
would bring [the substantive crime] about in the expected course
of events" or to "an act which is intended to bring about the
substantive crime and would bring it about but for a
mistake . . . ." See Commonwealth v. Peaslee, 177 Mass. 267,
271 (1901).
                                                                      3


liability for this sort of failed attempt is uncomplicated and

noncontroversial."     Bell, supra at 424 (Gants, J., dissenting).

In the second category, which we have described as "more

complicated," McWilliams, supra at        , a defendant has been

interrupted in the "preparatory mode," before having undertaken

the last act necessary to commit the offense.     See id.; Bell,

supra at 413.

     An overt act, even when coupled with the intent to commit

a crime, "commonly is not punishable if further acts are

contemplated as needful."      Peaslee, supra at 272.   Where, as

here, a defendant has been interrupted before having undertaken

the last necessary act, the focus of the inquiry is whether a

defendant's "overt acts . . . , although not the final act in a

necessary sequence, were so close to the commission of the crime

that a reasonable jury could conclude that it was virtually

certain that he would have" committed the substantive offense.

McWilliams, supra at       .   See Bell, supra at 413-414; Peaslee,

supra at 272.   The distance between the overt act and the

completion of the "crime must be 'relatively short' and

'narrow,'" McWilliams, supra at       , quoting Bell, supra at 415.

How narrow depends on "the gravity of the crime, the uncertainty

of the result, and the seriousness of harm that is likely to

result."   McWilliams, supra at      , citing Bell, supra at 414.
                                                                        4


See Commonwealth v. Kennedy, 170 Mass. 18, 22 (1897).2       See also

Commonwealth v. Gosselin, 365 Mass. 116, 121 (1974).

     In this case, where each indictment alleged a nonviolent

crime, not directed against a person, perpetrated by an unarmed

individual, the degree of proximity between the overt act and

completion of the crime must be quite narrow.    Contrast

McWilliams, supra at      .   In the circumstances here, a

defendant's conduct at the point when he or she was interrupted

must have brought the defendant so close to perpetration of the

offense as to render it "virtually certain" that, but for the

interruption, the defendant would have committed the substantive

crime.   See id.   To determine whether a defendant properly may

be convicted of attempt requires that we examine any acts

remaining in the sequence, as well as "all conduct short of the

last act as 'preparation'".    See Bell, supra at 428 (Gants, J.,

dissenting), quoting Peaslee, supra at 272.3


     2
       As stated by Chief Justice Holmes in Commonwealth v.
Kennedy, 170 Mass. 18, 22 (1897), "the gravity of the crime, the
uncertainty of the result, and the seriousness of the
apprehension, coupled with the great harm likely to result from
poison even if not enough to kill, would warrant a holding of
liability for an attempt to begin at a point more remote from
the possibility of accomplishing what is expected than might be
the case with lighter crimes."
     3
       Examining all relevant prior acts undertaken by a
defendant that culminate in the overt act is also necessary to
determine whether the defendant harbored the intent necessary to
commit the substantive offense. See McWilliams, 473 Mass.      ,
                                                                    5


    Here, the indictments alleged that the defendant "did smash

a glass sliding door," "did remove an outer screen," and "did

position a ladder in order to facilitate entry into the home."

To find the defendant guilty of three separate crimes of

attempt, each act must be considered independently, without the

context provided by the other acts alleged.

    Considering first the conviction based on the defendant's

admissions that he removed an outer screen from a first-floor

window and that he intended to commit a burglary, nothing in the

indictment or in the plea colloquy indicates that the absence of

the screen alone would have enabled the defendant to enter the

dwelling without undertaking several additional steps.     If the

window were located anywhere above the basement level (the

record does not indicate the location or size of the window),

entry might have required locating the means, such as a box, to

reach the window to achieve entry; the defendant then would have

had to climb or stand on that object; if the window were locked,

the defendant would have had to break or pick the lock, or break

the window, having first obtained an implement with which to do

so, before attempting entry into the dwelling.   On this record,



(2016). Here, on the basis of each separately indicted act, it
is not possible to determine whether the defendant intended to
commit a burglary, but because he admitted that he harbored the
necessary intent, this requirement needs no further
consideration.
                                                                     6


given the steps that remained before the defendant could have

completed the substantive offense, I cannot agree that the act

of merely removing an outer screen was "so close to the

commission of the crime that a reasonable jury could conclude it

was virtually certain that he would have" burglarized the house.

McWilliams, supra at    .

     The conviction based on the defendant's admission to

placing a ladder against the house raises similar concerns.    The

defendant agreed only that he moved a ladder "in order to

facilitate entry" into the dwelling.4   Based on the facts in the

record, even if the ladder had been placed directly under a

second-floor window, and had been long enough to reach the

window (neither fact being established in the record and, given

the actions with the rock, the contrary apparently being the

case), the defendant still would have had to climb the ladder in

     4
       This language appears in the indictment. The grand jury
heard testimony from a police officer that "a ladder that [the
homeowner] kept at the side of the house had been moved to the
deck and was partially propped up against the house." At the
plea colloquy, the defendant agreed to the prosecutor's
statement that a "ladder that had been [lying] flat behind the
house had been moved to provide access to a second-story window
by some unknown party." The prosecutor's account, to which the
defendant agreed, certainly establishes that the defendant moved
the ladder with the intention to use it to enter the home, but
it does not establish as a factual matter how close the
defendant came to breaking into the house with the use of the
ladder. It is possible that the defendant found the ladder to
be too heavy to use, or too short to reach the window, and so he
left it "partially propped" horizontally against the house. The
record contains no other facts concerning the ladder.
                                                                    7


order to reach the window and thereafter find a way to break

either the lock or the window in order to enter the house.     In

the context of the established facts, these are acts of

preparation that involve arranging the means necessary in order

to be able to commit a burglary, not sufficient overt acts to

permit a reasonable fact finder to conclude that it was

"virtually certain" that he would have committed the burglary

with each discrete act.

     The court concludes that each act came near enough "to the

accomplishment of the crime of burglary" to be punishable, ante

at    , without explaining how it arrives at this conclusion.

In light of the scant facts in the record and the gaps discussed

above, the court must be inferring from the defendant's guilty

pleas the existence of the additional facts that would be

required to show that he came sufficiently close to committing

burglary to support three convictions of attempt.   Such an

inference, however, is improper; "an admission to a crime

generally will not function in itself as an admission to all of

the elements of that crime."   Commonwealth v. Sherman, 451 Mass.

332, 337 (2008).   See id. at 336-338 (discussing dismissal of

guilty plea where defendant claimed his agreement to facts

recited by prosecutor did not satisfy elements of crime).

Accordingly, I respectfully dissent.
