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14-P-1607                                               Appeals Court

                   COMMONWEALTH   vs.   JASON WILSON.


                            No. 14-P-1607.

       Plymouth.       March 24, 2016. - September 8, 2016.

            Present:   Hanlon, Sullivan, & Maldonado, JJ.


Motor Vehicle, Operating under the influence, License to
     operate. Notice. Practice, Criminal, Required finding.



     Complaint received and sworn to in the Brockton Division of
the District Court Department on February 16, 2012.

    The case was heard by Mary L. Amrhein, J.


     Max Bauer for the defendant.
     Mary E. Lee, Assistant District Attorney, for the
Commonwealth.


    HANLON, J.     After a jury-waived trial in the District

Court, the defendant was convicted of operating a motor vehicle

after his license or right to operate had been suspended for

operating a motor vehicle while under the influence of

intoxicating liquor (OUI).    See G. L. c. 90, § 23, third par.

He appeals, arguing that his motion for a required finding of
                                                                    2


not guilty was wrongfully denied because the Commonwealth failed

to prove that he had notice that his license had been suspended.

We affirm.

    At trial, the Commonwealth called one witness and offered

one exhibit; the underlying facts are not in dispute.     Trooper

John Santos of the Massachusetts State Police testified that, on

January 30, 2012, at approximately 8 P.M., he was observing

traffic on Spark Street on the north side of Brockton.     He saw a

white Cadillac with a defective tail light and a damaged brake

light.   He stopped the car and asked the driver for his license

and registration.   The driver, later identified as the

defendant, produced a registration for the car and said that his

name was Jason Wilson.   He also told the trooper his date of

birth and current address.   He never produced a Massachusetts

driver's license.   The trooper, after checking with the Registry

of Motor Vehicles on his "mobile data terminal," gave the

defendant a summons for the civil motor vehicle infractions and

also for "operating with a suspended license."

    After the trooper's testimony, the Commonwealth offered a

certified copy of a docket sheet, number 1106 CR 2028, showing

that on January 11, 2012, nineteen days before the defendant was

stopped by Trooper Santos, the defendant had appeared in the

West Roxbury Division of the Boston Municipal Court and admitted

that there were facts sufficient to support a finding of guilty
                                                                  3


on a charge of OUI in violation of G. L. c. 90, § 24(1)(a)(1)

(count 1); and operating a motor vehicle after his license or

right to operate had been suspended, in violation of G. L.

c. 90, § 23 (count 2).   In addition, the defendant had pleaded

guilty to leaving the scene of an accident after causing

personal injury, in violation of G. L. c. 90, § 24(2)(a 1/2)(1)

(count 3).

     The docket sheet in that case indicates that on count 1,

the OUI charge, the defendant received a continuance without a

finding for one year, with conditions of probation including

completion of the G. L. c. 90, § 24D, program, payment of

certain fees, and a "45 day LOL" (loss of license).   On count 3,

the leaving the scene after causing personal injury conviction,

the defendant received a concurrent sentence of probation, with

the notation "loss of lic. as by law."1


     1
       Under the pertinent statute, the defendant's license would
have been revoked for at least one year on count 3.
General Laws c. 90, § 24(2)(b), as amended through St. 1996,
c. 450, § 137, provides, in pertinent part:

     "A conviction of a violation of paragraph (a) or paragraph
     (a 1/2) of subdivision (2) of this section shall be
     reported forthwith by the court or magistrate to the
     registrar, who may in any event, and shall unless the court
     or magistrate recommends otherwise, revoke immediately the
     license or right to operate of the person so convicted, and
     no appeal, motion for new trial or exceptions shall operate
     to stay the revocation of the license or right to operate."

     General Laws c. 90, § 24(2)(c), as appearing in St. 1991,
c. 460, § 4, provides, in pertinent part:
                                                                   4


    In order to obtain a conviction in the present matter, "the

Commonwealth was obligated to prove, beyond a reasonable doubt,

(1) that the defendant operated a motor vehicle; (2) that at the

time of that operation the defendant's license was revoked or

suspended; (3) that the license suspension or revocation was

pursuant to a violation of one of the specified statutory

sections (including [OUI] in violation of G. L. c. 90,

§ 24[1][a]); and (4) that the defendant was notified that his

license had been suspended or revoked."   Commonwealth v.

Oyewole, 470 Mass. 1015, 1016 (2014) (quotation omitted).

    In Oyewole, the court described the following facts.

    "In October, 2009, the defendant admitted to
    sufficient facts to support a finding of guilty on a
    charge of operating while under the influence of
    liquor (OUI case). According to the docket sheet from
    that case, his license was suspended for sixty days.
    Less than sixty days later, a Wilmington police
    officer, observing that a motor vehicle had its
    headlights off at 12:30 A.M., stopped the vehicle.
    The defendant was the driver and only occupant of the
    vehicle. The officer requested the defendant's
    license, which the defendant produced. The officer



    "The registrar, after having revoked the license or right
    to operate of any person under paragraph (b), . . . may,
    after an investigation or upon hearing, issue a new license
    or reinstate the right to operate to a person convicted in
    any court for a violation of any provision of paragraph (a)
    or (a 1/2) of subdivision (2); provided, however, that no
    new license or right to operate shall be issued by the
    registrar to: (i) any person convicted of a violation of
    subparagraph (1) of paragraph (a 1/2) until one year after
    the date of revocation following his conviction if for a
    first offense . . . ."
                                                                     5


    confiscated the license and placed the defendant under
    arrest."

Id. at 1015-1016.

    The Oyewole court concluded that the evidence was

sufficient to prove that the defendant had operated a motor

vehicle after his license or right to operate had been suspended

for operating under the influence.     However, even considering

the evidence in the light most favorable to the Commonwealth,

"[a]s to the fourth element, . . . the evidence presented at

trial, together with all reasonable and possible inferences that

might properly be drawn from it, was insufficient to permit a

reasonable fact finder to find, beyond a reasonable doubt, that

the defendant had been notified of the license suspension."        Id.

at 1016.

    The court noted that there was no evidence in the record

that the docket sheet had been shown to the defendant, or that

the sentence was announced in open court.     "There was also no

evidence that the defendant acknowledged, at the time of the

stop or at any other time, that he was aware of the suspension.

Moreover, the evidence showed that when he was stopped, the

defendant had his license in his possession and gave it to the

police officer.     When a license is suspended in connection with

a conviction for operating while under the influence, G. L.

c. 90, § 24D, fourth par., requires that the license be
                                                                     6


surrendered to the probation department.    Here, however, the

defendant apparently did not surrender his license.    A possible

reason for this is that nobody notified the defendant that his

license had been suspended."    (Footnote omitted.)   Id. at 1016-

1017.

     In the present case, too, the evidence clearly was

sufficient to prove that the defendant was operating a motor

vehicle and that his license to operate had been suspended for

operating under the influence; the defendant does not contend

otherwise.    The only question is whether the court's analysis in

Oyewole is distinguishable on the facts, or whether the holding

in that case compels us to reverse the conviction and enter a

finding of not guilty.2    We are persuaded that Oyewole is

distinguishable and we therefore affirm.3

     Here, the defendant did not present a license when he was

stopped by the trooper; that fact undermines any inference that


     2
         This case was tried before Oyewole was released.
     3
       In Commonwealth v. Norman, 87 Mass. App. Ct. 344 (2015),
this court determined that the defendant had sufficient notice
of his license suspension, and affirmed his conviction of OUI
while his license was suspended for a prior OUI. In that case,
the Commonwealth offered evidence that the defendant had
admitted to the police officer at the time of the stop that he
didn't have a license, although he provided a license number. A
Registry of Motor Vehicles representative also described the
process used to notify a driver of license suspension, and
produced a copy of a "notice of suspension" letter sent to the
mailing address on file for the defendant. Id. at 345. The
facts of this case fall somewhere between Oyewole and Norman.
                                                                       7


no one ever seized the defendant's license when it was suspended

at the time of his earlier admission and sentencing on count 1,

the OUI charge.   In addition, and significantly, in Oyewole, the

defendant's prior conviction had been for only an OUI.       Nothing

in the facts of that case indicates that Oyewole was aware that

his license had ever been suspended.    In this case, by contrast,

the defendant had also admitted nineteen days earlier to

sufficient facts on count 2, the charge of operating a motor

vehicle after his license had been suspended.   It is a fair

inference that prior to the defendant's admission, the charge of

operating after suspension was read to him, and also that there

was record support that either the judge or the defendant's

lawyer had explained the elements of the offense to him, or that

the prosecutor had read for the record the underlying facts

supporting the admission.   See Commonwealth v. Ubeira-Gonzalez,

87 Mass. App. Ct. 37, 39 (2015), quoting from United States v.

Broce, 488 U.S. 563, 569 (1989) ("A plea of guilty and the

ensuing conviction comprehend all of the factual and legal

elements necessary to sustain a binding, final judgment of guilt

and a lawful sentence").    In addition, the defendant had

admitted under oath while tendering his plea that the underlying

facts were sufficient to support a finding of guilty of

operating after suspension.   He does not contend otherwise now.
                                                                     8


     Surely, then, it is fair also to infer that this defendant,

having been placed on notice at his admission hearing, only

nineteen days earlier, that his license had, in fact, been

suspended at the time of the underlying offense, was aware that

his license was still suspended at the time of the stop at issue

here -- at least in the absence of any indication from any

source that the license had been restored.4    Cf. Commonwealth v.

Boris, 317 Mass. 309, 315 (1944) ("A man's intention or

knowledge is a matter of fact which ordinarily cannot be proved

by direct evidence and resort frequently must be had to proof by

inference").

     We are satisfied that the evidence was sufficient to meet

the Commonwealth's burden of proof.

                                      Judgment affirmed.




     4
       Indeed, as the Commonwealth notes, given the defendant's
plea on the charge of leaving the scene of an accident after
causing personal injury, his license could not have been
reinstated at the time he was stopped on the present offense.
See note 1, supra.
    SULLIVAN, J. (dissenting).    The issue before us is not

whether the defendant knew his license could be suspended for a

motor vehicle violation.   Clearly, he did.   The issue is whether

the Commonwealth has proven beyond a reasonable doubt that the

defendant had been notified, as of January 30, 2012, that his

license had been suspended for forty-five days on January 11,

2012.   See G. L. c. 90, § 23.   The trial judge, relying on the

now overruled Appeals Court decision in Commonwealth v. Oyewole,

84 Mass. App. Ct. 669 (2014), and without the benefit of the

subsequent rescript opinion in Commonwealth v. Oyewole, 470

Mass. 1015 (2014) (Oyewole), acceded to the Commonwealth's

argument that the docket sheet of the January 11, 2012, plea was

proof enough, and denied the motion for required finding.

Oyewole has since instructed that a docket sheet that does not

state that the defendant was notified of his license suspension

does not, standing alone, prove notice.    Id. at 1016.   Here,

neither the addition of the previous plea, nor the missing

license, in the context of this bare evidentiary record, is

enough to satisfy the burden of proving actual or constructive

notice of license suspension beyond a reasonable doubt.      Because

I understand Oyewole to require more, I respectfully dissent.

    "[T]he Commonwealth was obligated to prove, beyond a

reasonable doubt, . . . that the defendant was notified that his

license had been suspended or revoked."    Commonwealth v.
                                                                    2


Oyewole, supra at 1016 (quotation omitted).   The element of

notice under G. L. c. 90, § 23, can be established in two ways:

(1) by proof that the defendant had actual or constructive

knowledge of the suspension of his license, see Commonwealth v.

Deramo, 436 Mass. 40, 51 (2002); Oyewole, supra at 1016, and/or

(2) by proof that notice of suspension or revocation of his

right to operate a motor vehicle "has been issued [by the

registrar of motor vehicles] and received by such person or by

his agent or employer."   G. L. c. 90, § 23, third par., as

appearing in St. 1986, c. 620, § 3.    See Commonwealth v.

Crosscup, 369 Mass. 228, 231-232 (1975).    When the Commonwealth

proves notice to a defendant by means of proof of notice by the

registry, it need not prove that the defendant had actual

knowledge of the suspension, so long as there is admissible

evidence of mailing and receipt as set forth in the statute.

See id. at 242 (proper mailing is prime facie evidence of

receipt); Commonwealth v. Koney, 421 Mass. 295, 303-304 (1995)

(same; proof of actual receipt not required); Commonwealth v.

Lora, 43 Mass. App. Ct. 136, 144 (1997) (registry may rely on

the accuracy of address provided).    See generally Commonwealth

v. Royal, 89 Mass. App. Ct. 168, 173-175 (2016) (methods of

proving mailing and receipt).   There was, however, no proof of

mailing to the defendant and receipt in this case, and the

Commonwealth therefore was obligated to prove actual or
                                                                   3


constructive knowledge.   See Oyewole, supra at 1016-1017.

Contrast Commonwealth v. Norman, 87 Mass. App. Ct. 344, 346-347

(2015).

     Viewing the record in the light most favorable to the

Commonwealth, see Oyewole, supra at 1016 & n.2, the evidence

from which actual or constructive knowledge could be inferred is

as follows.   On January 11, 2012, the defendant admitted to

sufficient facts to support a finding of guilty on charges of

operating while under the influence of alcohol (OUI) and

operating after his license had been suspended, and pleaded

guilty to leaving the scene of personal injury.    Each of these

three offenses took place on October 7, 2011.     There was no

evidence of when or for what the license suspension underlying

the October 7, 2011, charge was imposed, or the length of that

previous license suspension.

     According to the docket sheet from the January 11, 2012,

plea, the defendant's license was suspended for forty-five days

on the OUI charge, and "as by law" on the leaving the scene

charge.1   There is no notation in the docket that the defendant

was notified of the suspension in open court.   When the

defendant was stopped by Massachusetts State Trooper John Santos

less than forty-five days later, on January 30, 2012, he was

     1
       The docket indicates a sentence of "concur" on the charge
of operating with a suspended license, which was continued
without a finding.
                                                                       4


asked for his driver's license and registration.      The defendant

identified himself as Jason Wilson and handed over the

registration.   The trooper testified that the defendant "didn't

have a driver's license on him."      The defendant did not admit

that he didn't have a license.      There was no evidence that his

license was taken by the court or the registry for this or any

previous offense.   The defendant was not arrested.

    In Oyewole, the Supreme Judicial Court held that while a

docket sheet "permits an inference that the defendant was

present when his license was suspended," the docket sheet alone

is not evidence "that the suspension was communicated to him."

Oyewole, supra at 1016.   Here, as in Oyewole, "[t]he docket

sheet itself does not state that the defendant was notified of

the suspension.   The Commonwealth did not present evidence that

the judge in the [January 11] case announced the suspension in

open court.   [Footnote omitted.]     There is no evidence in the

record that the docket sheet was shown to the defendant or that

any other written notification was sent to him. . . .      There was

also no evidence that the defendant acknowledged, at the time of

the stop or at any other time, that he was aware of the

suspension" at the time of the offense in question.      Ibid.

    Here, the previous suspension underlying the January 11,

2012, plea, even when coupled with the absence of a license at

the time of the stop, does not constitute proof beyond a
                                                                   5


reasonable doubt that on January 30, 2012, the defendant knew

his license was suspended.   While there was evidence that the

defendant admitted, on January 11, 2012, that his license was

suspended on October 7, 2011, there was no evidence that the

suspension in effect on October 7, 2011, was still in effect on

January 30, 2012, when he was stopped by Trooper Santos.     The

fact that the defendant admitted that he drove in October of

2011 with a suspended license was not a substitute for proof of

actual or constructive knowledge that his license either

remained or was newly suspended on January 30, 2012.

     As to the license, the evidence at trial was that the

defendant did not have his driver's license "on him."    He did

not admit that he did not have one.   Contrast Commonwealth v.

Norman, 87 Mass. App. Ct. at 347.   The only way to fill the

evidentiary gap is by making the inferential leap that the

defendant had notice of the suspension because his license was

taken or surrendered either at the time of the January 11, 2012,

plea, or at some other time not evident in the record.    One

might surmise that the defendant's license was taken by the

court at the time of the January 11, 2012, plea, pursuant to the

G. L. c. 90, § 24D, disposition on the OUI charge.2    This surmise



     2
       General Laws c. 90, § 24D, fourth par., as appearing in
St. 2003, c. 28, § 13, provides, in pertinent part:
                                                                       6


would rise to the level of permissible inference only if there

is some evidence to undergird it.   See Commonwealth v. Dinkins,

440 Mass. 715, 720-721 & n.8 (2004) (inference must be both

reasonable and possible).   The fact that a court may take a

license after a plea is not a commonsense deduction based on

common knowledge; rather it flows from specialized knowledge of

the law and the facts of which proof is required.   Cf.

Commonwealth v. Byfield, 413 Mass. 426, 429-430 (1992).     Those

familiar with the law also would know that the registry, after

notice, is supposed to demand surrender of the license.3      Again,

this is not common knowledge, and the inference that the

registry in fact demanded surrender of this defendant's license

lacks any support in the record.    Compare Commonwealth v.

Deramo, 436 Mass. at 50-51; Commonwealth v. Royal, 89 Mass. App.

Ct. at 170-172.   Contrast Commonwealth v. Norman, supra at 345.

No evidence of either scenario was placed before the fact

finder, and any finding of actual or constructive notice


     "Upon each disposition under this section, the defendant
     will surrender any Massachusetts drivers license . . . in
     his possession to the probation department of that court."

Compare G. L. c. 90, §§ 24(1)(b), 24N.
     3
       When the registrar suspends a license, the registrar
follows the notice procedures set out in G. L. c. 90, § 22,
culminating in a notice directing the driver to surrender his
license to the registry. See Commonwealth v. Crosscup, 369
Mass. at 229. Whether the driver has been so notified and has
done so is a matter of proof. See id. at 242; Commonwealth v.
Norman, supra at 346-347.
                                                                    7


therefore would have been speculation with respect to this

defendant.    The absence of the license is as infirm as the bare

docket in Oyewole.4   Neither, without more, demonstrates that the

suspension was communicated to the defendant, and the

presumption of regularity may not, as a matter of law, fill the

void.    470 Mass. at 1016.5

     This reasoning is consistent with cases applying the notice

provisions of other statutes.   For example, when a temporary

abuse prevention order is issued pursuant to G. L. c. 209A, § 4,

the court "shall immediately thereafter notify the defendant

that the temporary orders have been issued."    Ibid., as

appearing in St. 1990, c. 403, § 4.    Although the statute

provides for service by a law enforcement officer, see G. L.

c. 209A, §§ 4, 7, "[p]ersonal service is not required . . . if

the Commonwealth can show the defendant had actual or

constructive knowledge of the existence and terms of the court


     4
       In Oyewole, the driver had a driver's license in his
possession at the time of the stop. I understand Oyewole to
treat the presence of the license as additional grounds to
vacate the conviction, but not a dispositive or necessary factor
in concluding that the evidence was insufficient. See id. at
1017 ("In sum, the record contains no evidence demonstrating
that the defendant was notified of the license suspension, and
some evidence suggesting the contrary"). I agree with the
majority that this case lies somewhere between Oyewole and
Norman.
     5
       In any event, there was no evidence of the regular
practice here. Compare Commonwealth v. Norman, 87 Mass. App.
Ct. at 347.
                                                                  8


order."   Commonwealth v. Molloy, 44 Mass. App. Ct. 306, 308

(1998), citing Commonwealth v. Delaney, 425 Mass. 587, 592

(1997), cert. denied, 522 U.S. 1058 (1998).6

     In Commonwealth v. Melton, 77 Mass. App. Ct. 552, 556

(2010), we held that proof of notice of an ex parte restraining

order was sufficient where there had been a telephone

conversation between the defendant and the victim, initiated by

the defendant, during which the victim asked the defendant why

he was calling her and said, "[T]here's a restraining order."

Similarly, in Commonwealth v. Mendonca, 50 Mass. App. Ct. 684,

688 (2001), we reasoned that even assuming a failure of service,

the defendant's actual knowledge of the terms of the order was

established by evidence that the victim told the defendant "a

few times" that he was not supposed to call, the defendant's

response that he "'didn't believe' in restraining orders," and

the victim's daughter corroborated the conversation.

     6
       See also Instruction 6.720 of the Criminal Model Jury
Instructions for Use in the District Court (rev. May, 2011),
Violation of an Abuse Prevention Order ("In order to prove the
defendant guilty of this offense, the Commonwealth must prove
. . . beyond a reasonable doubt . . . [t]hat the defendant knew
that the pertinent term(s) of the order (was) (were) in effect,
either by having received a copy of the order or by having
learned of it in some other way"); Instruction 6.740 of the
Criminal Model Jury Instructions for Use in the District Court
(rev. May, 2014), Violation of a Harassment Prevention Order
("In order to prove the defendant guilty of this offense, the
Commonwealth must prove . . . beyond a reasonable doubt . . .
[t]hat the defendant knew that the pertinent term(s) of the
order (was) (were) in effect, either by having received a copy
of the order or by having learned of it in some other way").
                                                                   9


     Conversely, in Commonwealth v. Molloy, 44 Mass. App. Ct. at

309, the evidence of actual or constructive notice of the

extension of a restraining order was insufficient where the

order in question had not been served on the defendant, and

nothing in the extension order he had received placed him on

notice that it could be further extended in his absence, if he

failed to appear at an extension hearing.   And, in Commonwealth

v. Welch, 58 Mass. App. Ct. 408, 409-411 (2003), we held that

there was insufficient evidence of a violation of an extended

abuse prevention order where there was no evidence that either

the order or an earlier ex parte order had been served, and the

alleged victim's testimony concerning her telephone

conversations with the defendant were so void of detail that the

evidence was insufficient to prove that the defendant had actual

knowledge of the terms of the order or was put on sufficient

notice to make reasonable inquiry concerning the issuance and

terms of the order.7


     7
       Contrast Commonwealth v. Delaney, supra, where the ex
parte temporary restraining order was served on the defendant by
leaving it at his last and usual place of abode. The temporary
order provided notice that it could be extended if the defendant
failed to appear at a hearing at a time, date, and place
specified in the order. When the defendant failed to appear,
the temporary order was extended for one year. Although the
extended order was not served on the defendant, the court held
that the ex parte order, which stated that the order could be
extended if he did not appear at a hearing, put the defendant on
notice, and, further, that his actual receipt of the ex parte
order, together with his testimony that he knew, at the relevant
                                                                 10


     As these cases demonstrate, the salient issue is not what

the defendant may have known, but what the Commonwealth proved

he knew.8   Because the evidence of notice presented here did not

rise to the level of proof beyond a reasonable doubt, see

generally Commonwealth v. Ruano, 87 Mass. App. Ct. 98, 103

(2015), the conviction may not stand.

     For these reasons, I respectfully dissent.




time, that there was a protective order against him,
"warrant[ed] the conclusion that the defendant had actual
knowledge of the terms of the extended order." 425 Mass. at
592-593. Here, unlike in Delaney, the evidentiary void is such
that there is no basis to raise the question of wilful blindness
or deliberate avoidance. See id. at 592.
     8
       Our oft-cited and familiar Latimore standard, see
Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), rests upon
Jackson v. Virginia, 443 U.S. 307, 318-319 (1979), a case which
carefully articulated the rationale underlying the adoption of
the requirement of proof beyond a reasonable doubt. Jackson,
supra at 315. The vitality of this rationale has recently been
reemphasized. See Commonwealth v. Russell, 470 Mass. 464, 474
(2015).
