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14-P-923                                               Appeals Court

                 ANGEL SANTANA   vs.   COMMONWEALTH.


                           No. 14-P-923.

        Essex.     September 2, 2015. - October 19, 2015.

           Present:   Berry, Grainger, & Sullivan, JJ.


Erroneous Conviction. Commonwealth, Claim against. Evidence,
     Constructive possession. Practice, Civil, Proceeding
     against Commonwealth, Judgment on the pleadings,
     Interlocutory appeal.



     Civil action commenced in the Superior Court Department on
January 19, 2012.

     The case was heard by Douglas H. Wilkins, J., on a motion
for judgment on the pleadings, and a motion for reconsideration
was considered by him.


     Jeffrey T. Collins, Assistant Attorney General, for the
Commonwealth.
     John J. Hightower for the plaintiff.


    SULLIVAN, J.   After a jury trial in Superior Court, Angel

Santana was convicted of trafficking cocaine in the amount of

fourteen to less than twenty-eight grams, in violation of G. L.

c. 94C, § 32E(b), and trafficking in cocaine within 1,000 feet
                                                                   2


of a school zone, in violation of G. L. c. 94C, § 32J.      This

court vacated the judgments, concluding that the evidence was

insufficient to establish that Santana constructively possessed

the cocaine.1   Santana subsequently filed a complaint pursuant to

G. L. c. 258D, the erroneous conviction statute.    After

discovery, the Commonwealth moved for judgment on the pleadings,

contending that Santana failed to meet the threshold requirement

of eligibility to pursue relief under the erroneous conviction

statute.    In a comprehensive and well-reasoned memorandum, the

motion judge denied the motion, concluding that the lack of

evidence of constructive possession tended to establish actual

innocence of the underlying crime, and that Santana was

therefore eligible for relief under the statute.2   The

Commonwealth appeals from the motion judge's order denying its

motion for reconsideration under the doctrine of present

execution.3   See Irwin v. Commonwealth, 465 Mass. 834, 835

(2013).    We affirm.


     1
       See Commonwealth v. Santana, 77 Mass. App. Ct. 1118
(2010).
     2
       Although the memorandum was issued without the benefit of
Renaud v. Commonwealth, 471 Mass. 315 (2015), discussed infra,
the reasoning of the motion judge closely followed that of
Renaud.
     3
       The notice of appeal mentions only the motion for
reconsideration, and does not contain any language that the
Commonwealth is appealing from the original order. As a
technical matter, the original order is not before us. See
                                                                   3


    Discussion.   The class of claimants eligible for relief

under the erroneous conviction statute includes only those "who

have been granted judicial relief by a state court of competent

jurisdiction, on grounds which tend to establish the innocence

of the individual."   G. L. c. 258D, § 1(B)(ii), inserted by

St. 2004, c. 444, § 1.   If this threshold requirement is met,

the claimant must then "establish at trial, by clear and

convincing evidence, that he or she did not commit the offense

charged."   Renaud v. Commonwealth, 471 Mass. 315, 317-318 (2015)

(holding that insufficient evidence alone may be a ground for a

wrongful conviction complaint, when considered in the context of

the nature of the offense and all the facts and circumstances).

The Commonwealth contends that Santana failed to satisfy the

threshold determination of eligibility because the ground on

which he was granted judicial relief, insufficiency of the

evidence, did not tend to establish his innocence.   In Renaud,

the court rejected a categorical approach to evaluating judicial

relief based on insufficiency of the evidence.   Id. at 319.     The

court held that insufficient evidence does not "necessarily


Mass.R.A.P. 3(c), as appearing in 430 Mass. 1602 (1999) ("The
notice of appeal . . . shall, in civil cases, designate the
judgment, decree, adjudication, order, or part thereof appealed
from"). See also Blackburn v. Blackburn, 22 Mass. App. Ct. 633,
634-635 & n.2 (1986). As a practical matter, the issues raised
on appeal are the same as those decided in both the order
denying the motion for reconsideration and the original
memorandum and order denying the motion for judgment on the
pleadings.
                                                                   4


equate to actual innocence," but by the same token, lack of

certain types of evidence may tend to show actual innocence.

Ibid.   We therefore must follow a case-specific, fact-based

approach to determine whether judicial relief based on

insufficient evidence tends to establish actual innocence in any

given case.

     In Santana's direct appeal, this court concluded that the

evidence was insufficient because the only evidence of

constructive possession was that Santana was present as a

passenger in a car where drugs were found.   That is, there was

insufficient evidence upon which an inference of knowledge,

ability, and intent to control the drugs could be based.     See

Commonwealth v. Boria, 440 Mass. 416, 418-419 (2003) (mere

presence alone is insufficient to establish constructive

possession).   The judgments therefore were reversed "on grounds

resting upon facts and circumstances probative of the

proposition that the claimant did not commit the crime."

Renaud, supra at 318, quoting from Irwin, 465 Mass. at 844.     For

the purposes of the threshold showing required to defeat a

motion to dismiss under G. L. c. 258D, § 1(B)(ii), the absence

of evidence showing Santana intended to exercise dominion or

control over the contraband is probative of and tends to show

actual innocence.   See Renaud, supra at 318.
                                                                    5


    While our conclusion permits Santana to pursue a claim

under the statute, it is a question for another day whether

Santana is in fact actually innocent of the crime charged.    See

id. at 320.   "Our conclusion does not entitle [Santana] to

relief.   He is entitled to relief only if he proves

at trial by clear and convincing evidence that he did not commit

the offenses charged."   Ibid.

                                    Order denying motion for
                                      reconsideration affirmed.
     GRAINGER, J. (concurring).    I concur in the result reached

by my colleagues because it comports with existing case law.      I

write separately because in my view it is incorrect to assert

that the lack of sufficient evidence to support a conviction can

provide any probative basis for a defendant's "actual

innocence."    Our jurisprudence has long recognized that the

failure to prove a proposition provides no support for the

opposite conclusion.    See, e.g., Commonwealth v. Swartz, 343

Mass. 709, 712 (1962) (jury's disbelief of defendant's testimony

"could not provide affirmative evidence").1

     We require an individual seeking money damages from the

State to provide "clear and convincing" evidence at trial from

which a fact finder can conclude that "he or she did not commit

the offense charged."    Renaud v. Commonwealth, 471 Mass. 315,

317-318 (2015).   That is an appropriately rigorous requirement,

especially considering the heightened burden we place on

prosecutors.    In that context I perceive no rational basis to

     1
       "It is settled that mere disbelief of testimony does not
constitute evidence to the contrary. A case lacking adequate
affirmative proof is insufficient to support a verdict in favor
of the party with the burden on the issue. Wakefield v.
American Sur. Co., 209 Mass. 173, 177 (1911). McDonough v.
Vozzela, 247 Mass. 552, 558 (1924). Carmichael v. Carmichael,
324 Mass. 118, 121 (1949). Sutherland v. Scardino, 334 Mass.
178, 181-183 (1956). O'Connell v. Esso Standard Oil Co., 337
Mass. 639, 642 (1958). Morse v. Selectmen of Ashland, 7 Mass.
App. Ct. 739, 750 (1979). See also Leach & Liacos,
Massachusetts Evidence 314 (4th ed. 1967)." Kunkel v. Alger, 10
Mass. App. Ct. 76, 86 (1980).
                                                                       2


evaluate the sufficiency of a complaint on a separate and

diluted standard, according to which merely pointing to

insufficient evidence of guilt may satisfy the enunciated

legislative test and "tend to establish the innocence of the

individual."   G. L. c. 258D, § 1(B)(ii), inserted by St. 2004,

c. 444, § 1.   To the extent there is any proper distinction to

be drawn between a proffer needed for a complaint to survive a

dispositive motion and the proof needed to prevail at trial, it

should reflect no more than the low bar a plaintiff must

surmount to survive summary judgment.   That bar, which is to

show any "genuine issue as to any material fact," Mass.R.Civ.P.

56(c), as amended, 436 Mass. 1404 (2002), still requires some

positive evidence, however minimal, supporting a complaint.

Transforming a negative (insufficient proof of guilt) into a

positive (evidence of innocence) makes neither procedural nor

substantive sense.

    By contrast, and improperly so, our case law currently

requires proof of actual innocence at every stage of a

proceeding brought by an unlawfully imprisoned individual

seeking to redeem a fundamental constitutional right, his or her

liberty.   See Commonwealth v. Holmes, 469 Mass. 1010 (2014).     In

Holmes, a defendant seeking credit against a current

incarceration after serving a previous sentence subsequently
                                                                    3


vacated was denied credit on the rationale, among others,2 that

"we are not faced with circumstances where an earlier conviction

has been vacated on the ground of actual innocence."    Id. at

1012 n.3.

     Comparing these two standards, our cases currently make it

easier for an individual to proceed with a suit for money

damages against the public treasury than to bring an action to

be released from prison, or to seek the reduction of

imprisonment to no more than the amount to which he or she has

been lawfully sentenced.   This anomaly, as well as the reasoning

of each rule viewed independently, calls strongly for

reassessment.




     2
      While I need not reiterate here my other previously
enumerated disagreements with Holmes, (see, e.g., Commonwealth
v. Velez, 86 Mass. App. Ct. 727, 731 [concurrence]), the casual
shift of the burden of proof to require a defendant seeking
liberty to establish his or her innocence is, in my opinion,
certainly among its most serious flaws.
