Commonwealth v. Wilson

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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).