Bulwer v. Mount Auburn Hospital, et al. (Lawyers Weekly No. 10-025-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11875 BERNARD E. BULWER vs. MOUNT AUBURN HOSPITAL & others.[1] Middlesex. November 3, 2015. – February 29, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, & Lenk, JJ. Hospital, Appointment to staff. Anti-Discrimination Law, Race, Employment. Employment, Discrimination. Contract, Employment, With hospital, Performance and breach. Practice, Civil, Summary judgment. Civil action commenced in the Superior Court Department on February 22, 2008. The case was heard by S. Jane Haggerty, J., on a motion for summary judgment. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Robert R. Hamel, Jr. (Megan E. Kures with him) for the defendants. Denzil D. McKenzie (James E. Clancy, IV, with him) for the plaintiff. James A.W. Shaw, for Massachusetts Employment Lawyers Association, amicus curiae, submitted a brief. LENK, J. Massachusetts law prohibits employers from discriminating against their employees on the basis of, among other things, race or national origin. See G. L. c. 151B, § 4. Because direct proof of such discrimination is rarely available, employees filing claims under G. L. c. 151B, § 4, are permitted to prove discrimination without direct evidence of discriminatory intent, by relying on evidence that their employers gave a “false reason,”[2] or pretext, for terminating their employment. In this case, we address whether the plaintiff has produced sufficient evidence of pretext to survive his former employer’s motion for summary judgment. In doing so, we clarify the evidentiary burdens each party faces after one party has moved for summary judgment. We address, in particular, three concerns: whether the evidence on which an employee relies to survive a defendant’s motion for summary judgment need show not only that the defendant’s stated reason was false, but also that it concealed a discriminatory purpose; whether it is the plaintiff’s burden to persuade the motion judge based on that evidence that there is an issue of material fact appropriate for trial; and, finally, whether, in discerning the existence of an issue of material fact, the motion judge may weigh or otherwise evaluate the evidence. The plaintiff, Bernard E. Bulwer, is a black male of African descent who is originally from the Central American country of Belize. The plaintiff has a medical degree from the University of the West Indies, and practiced medicine outside the United States until […]
Commonwealth v. Dragotta (and one companion case) (Lawyers Weekly No. 11-021-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 14-P-1796 Appeals Court COMMONWEALTH vs. HEATHER DRAGOTTA (and one companion case[1]). No. 14-P-1796. Essex. January 12, 2016. – February 25, 2016. Present: Kafker, C.J., Cohen, & Blake, JJ. Assault and Battery. Wanton or Reckless Conduct. Parent and Child, Duty to prevent harm. Child Abuse. Practice, Criminal, Hearsay, Witness. Evidence, Expert opinion, Hearsay. Witness, Expert. Indictments found and returned in the Superior Court Department on October 1, 2010. The cases were heard by Richard E. Welch, III, J. Jacob B. Stone for Steven Amos. Patrick Levin, Committee for Public Counsel Services, for Heather Dragotta. Marcia H. Slingerland, Assistant District Attorney, for the Commonwealth. KAFKER, C.J. After a joint jury-waived trial in the Superior Court, defendant Heather Dragotta was convicted of wantonly or recklessly permitting another to commit an assault and battery upon her infant daughter causing bodily injury (head injury), and defendant Steven Amos was convicted on three indictments charging assault and battery upon the same child causing bodily injury (two rib fractures, head injury, and arm fracture).[2] On appeal, Dragotta and Amos both claim that the evidence was insufficient to sustain their convictions, and Amos adds that the expert testimony exceeded the permitted scope of such evidence. Sufficiency of the evidence. Viewing the evidence in the light most favorable to the Commonwealth, the judge was warranted in finding the following. E.g., Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). The victim was born on April 27, 2010, without any complications. Dragotta is the victim’s mother. Amos was Dragotta’s boyfriend but not the father of the child. On the evening of June 3, 2010, Dragotta and Amos brought the five and one-half week old infant to the Lawrence General Hospital emergency room because she was not using her right arm and cried when it was touched. The X-rays taken at the hospital showed that not only was the victim’s right arm fractured, but that her left arm was bowing. The fracture of the right arm was a displaced transverse fracture, meaning that the fracture went entirely across the bone and the two ends were slightly offset. These findings prompted the hospital to file a report of abuse with the Department of Children and Families (DCF), pursuant to G. L. c. 119, § 51A (51A report). The victim was transferred to Boston Children’s Hospital, and Dr. […]
Blanchard, et al. v. Steward Carney Hospital, Inc., et al. (Lawyers Weekly No. 11-020-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 14-P-717 Appeals Court LYNNE BLANCHARD & others[1] vs. STEWARD CARNEY HOSPITAL, INC., & others.[2] No. 14-P-717. Suffolk. January 14, 2015. – February 24, 2016. Present: Katzmann, Sullivan, & Blake, JJ. “Anti-SLAPP” Statute. Constitutional Law, Right to petition government. Practice, Civil, Standing, Motion to dismiss. Civil action commenced in the Superior Court Department on May 24, 2013. A special motion to dismiss was heard by Linda E. Giles, J. Jeffrey A. Dretler (Katharine A. Crawford & Joseph W. Ambash with him) for the defendants. Dahlia C. Rudavsky for the plaintiffs. KATZMANN, J. In this case we consider whether the defendants’ special motion to dismiss the plaintiffs’ defamation claim pursuant to G. L. c. 231, § 59H, widely known as the “anti-SLAPP”[3] statute, was properly denied. The central question is whether, during a period of crisis when Steward Carney Hospital (Carney Hospital or hospital) faced the loss of its license to operate an in-patient adolescent psychiatric unit (unit) because of purported patient abuse and neglect, statements quoted in a newspaper made by the president of the hospital, and an electronic mail message (e-mail) the president sent to hospital staff announcing the dismissal of unnamed employees in the unit under review, constituted protected petitioning activity. A judge in the Superior Court denied the motion because she found that the statements upon which the claim was based did not qualify as protected petitioning activity and, therefore, the defendants could not seek protection of the anti-SLAPP statute. We conclude that the statements quoted in the newspaper constitute protected petitioning activity, but that the internal e-mail does not. Accordingly, we affirm in part and reverse in part. Background. The key facts of this case, as derived from the judge’s decision below, the newspaper articles at issue, affidavits by those involved in the investigation, testimony in a related arbitration proceeding (see note 4, infra), and relevant reports, are as follows. The plaintiffs are all registered nurses (RNs) who had been working in the unit for a number of years. In April, 2011, complaints were made concerning four incidents of alleged patient abuse or neglect within the unit. None of the alleged incidents involved abuse or neglect of a patient by any of the plaintiffs (or any other RN). The incidents were reported to the Department of […]
Commonwealth v. Coggeshall (Lawyers Weekly No. 10-024-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11904 COMMONWEALTH vs. DAVID A. COGGESHALL. Plymouth. December 7, 2015. – February 24, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Reckless Endangerment of a Child. Probable Cause. Practice, Criminal, Complaint, State of mind. Evidence, State of mind. Complaint received and sworn to in the Plymouth Division of the District Court Department on August 20, 2013. A motion to dismiss was heard by Kathryn E. Hand, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Vanessa L. Madge, Assistant District Attorney, for the Commonwealth. Tara B. Ganguly for the defendant. Chauncey B. Wood, J. Anthony Downs, Todd Marabella, & Kara Harrington, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief. SPINA, J. In this case we are asked to decide whether the words “wantonly or recklessly” in G. L. c. 265, § 13L, the statute proscribing reckless endangerment of a child, require proof of a defendant’s subjective state of mind.[1] On August 20, 2013, a two-count complaint issued against the defendant from the Plymouth Division of the District Court Department, accusing him of walking on railroad tracks, in violation of G. L. c. 160, § 218, and reckless endangerment of a child by walking on railroad tracks with a child, in violation of G. L. c. 265, § 13L. The defendant filed a pretrial motion to dismiss the count charging him with reckless endangerment. A judge in the District Court ruled that the Commonwealth was required to establish that the defendant actually was aware of the substantial risk of serious bodily injury to which he exposed his child, and that the evidence offered in support of the application for the criminal complaint failed to demonstrate probable cause to believe that the defendant, who was heavily intoxicated at the relevant time, had the mental state required to support the charge. The judge dismissed the count of reckless endangerment. On appeal the Commonwealth argues that § 13L does not require proof of a defendant’s subjective state of mind, but that, even if it did, sufficient evidence was presented in the application for the criminal complaint to establish probable cause to believe that the defendant had the requisite mental state. We transferred the appeal to this court […]
Categories: News Tags: 1002416, Coggeshall, Commonwealth, Lawyers, Weekly
Clark, et al. v. Leisure Woods Estates, Inc. (Lawyers Weekly No. 11-019-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 15-P-366 Appeals Court DOUG CLARK & others[1] vs. LEISURE WOODS ESTATES, INC. No. 15-P-366. Franklin. November 13, 2015. – February 23, 2016. Present: Milkey, Carhart, & Massing, JJ. Damages, Breach of covenant of quiet enjoyment, Breach of implied warranty of habitability, Consumer protection case. Landlord and Tenant, Quiet enjoyment, Habitability, Consumer protection, Multiple damages, Snow and ice. Consumer Protection Act, Damages, Landlord and tenant. Manufactured Housing Community. Snow and Ice. Practice, Criminal, Witness. Civil action commenced in the Western Division of the Housing Court Department on November 2, 2009. The case was heard by Robert G. Fields, J. Timothy N. Schofield for the defendant. Jan Stiefel for the plaintiffs. MASSING, J. This appeal involves a series of landlord-tenant disputes in the manufactured housing context. The plaintiffs, residents of Leisure Woods Estates (Leisure Woods), a manufactured housing community in Orange, filed a complaint alleging that the defendant, Leisure Woods Estates, Inc., which owns, operates, and maintains Leisure Woods, failed to properly maintain and repair the common spaces, roads, and home sites. After a jury-waived trial, a judge of the Housing Court entered judgment in favor of plaintiffs representing seven households,[2] finding a breach of the implied warranty of habitability with respect to the condition of the roads, interference with the plaintiffs’ quiet enjoyment of the common walking trails, and separate and distinct breaches of the covenant of quiet enjoyment with respect to the conditions of the seven individual home sites. The judge awarded injunctive relief and monetary damages for the violations, including two separate awards of three months’ rent to each household under G. L. c. 186, § 14 (§ 14), for the breaches of the covenant of quiet enjoyment, and a twenty percent rent abatement, trebled under G. L. c. 93A (c. 93A) and the Attorney General’s regulations promulgated thereunder, for the breach of the warranty of habitability. The judge awarded each household $ 13,010.40 (a total of $ 91,072.80), plus attorney’s fees and costs. On appeal, the defendant argues that the judge erred in awarding multiple triple rent damage awards under § 14 for separate breaches of the covenant of quiet enjoyment, in applying the warranty of habitability to potholes and accumulations of ice and snow on the roads, and in excluding the testimony of a “vital witness” for the defendant who did not arrive in court until […]
Commonwealth v. Zammuto (Lawyers Weekly No. 11-018-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 14-P-1334 Appeals Court COMMONWEALTH vs. BRENDAN T. ZAMMUTO. No. 14-P-1334. Middlesex. December 17, 2015. – February 22, 2016. Present: Kafker, C.J., Cypher, Vuono, Carhart, & Kinder, JJ. Practice, Criminal, Presence of defendant, Instructions to jury, Assistance of counsel. Jurisdiction, Civil rights. District Court, Jurisdiction. Civil Rights, Availability of remedy. Complaint received and sworn to in the Malden Division of the District Court Department on September 2, 2011. The case was tried before Antoinette M. Leoney, J. James J. Cipoletta for the defendant. Christina Lucci, Assistant District Attorney, for the Commonwealth. KINDER, J. Following a jury trial in District Court, the defendant was convicted of assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A; and a civil rights violation, G. L. c. 265, § 37. On appeal, he contends (1) he was denied a fair trial when, after he defaulted, the trial proceeded in his absence, (2) the judge erred in failing to instruct the jury regarding his failure to testify, (3) the District Court lacked jurisdiction over the civil rights charge, (4) the motion for a required finding of not guilty on the civil rights charge should have been allowed; and (5) trial counsel was ineffective. We affirm. Background. We summarize the trial evidence as follows. As John Mastromarino stopped his scooter at an intersection with a four-way stop, he observed a motor vehicle “blow through” the stop sign. He followed the vehicle and caught up to it at the next intersection. He left his scooter at the side of the road, confronted the occupants, and yelled, “Bro, you almost just killed me.” The defendant and the four other occupants got out of the vehicle. The defendant, armed with a baseball bat, swung it at Mastromarino several times, calling him a “fucking nigger.” One swing connected with Mastromarino’s forearm. Thereafter, a motorcycle driver who was following the defendant’s vehicle removed his helmet and struck Mastromarino in the head with it, causing him to fall to the ground.[1] The defendant and the others reentered the vehicle and left the scene. Mastromarino observed the vehicle license plate number and reported it to the police. Through the registry of motor vehicles and further investigation, police identified the defendant as a possible operator of the vehicle. Mastromarino then identified the defendant’s photograph in an […]
Commonwealth v. Chamberlin (Lawyers Weekly No. 10-023-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11877 COMMONWEALTH vs. PETER CHAMBERLIN. Bristol. October 6, 2015. – February 19, 2016. Present (Sitting at New Bedford): Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Cellular Telephone. Subpoena. Practice, Criminal, Motion to suppress, Subpoena, Warrant. Search and Seizure, Warrant. Indictments found and returned in the Superior Court Department on November 21, 2007. Pretrial motions to suppress evidence were heard by D. Lloyd Macdonald, J., and the cases were tried before Robert J. Kane, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Merritt Schnipper for the defendant. Tara L. Blackman, Assistant District Attorney, for the Commonwealth. Chauncey B. Wood, Matthew R. Segal, Jessie J. Rossman, Kevin S. Prussia, & Caitlin W. Monahan for Massachusetts Association of Criminal Defense Lawyers & another, amicus curiae, submitted a brief. Marguerite T. Grant, Assistant District Attorney, for District Attorney for the Norfolk District, amicus curiae, submitted a brief. LENK, J. In the aftermath of an attempted robbery in 2007, where the victim was bound, threatened, and shot, the police conducted an investigation seeking three attackers who had fled the scene. As part of that investigation, a detective obtained from a cellular telephone service provider certain subscriber records for the defendant’s telephone number. The information thus obtained formed part of a later affidavit offered in support of a search warrant that, in turn, ultimately yielded several items of an incriminatory nature subsequently admitted at trial. Before trial, the defendant without success moved to suppress the telephone records and the physical evidence obtained pursuant to the warrant. He was convicted of armed robbery while masked, G. L. c. 265, § 17; kidnapping for purposes of extortion, G. L. c. 265, § 26; and armed assault with intent to murder, G. L. c. 265, § 18. Following affirmance of his convictions by the Appeals Court, see Commonwealth v. Chamberlin, 86 Mass. App. Ct. 705, 713 (2014), we allowed the defendant’s application for further appellate review, limited to issues related to his cellular telephone records. The basis for the defendant’s challenge is the government’s failure to comply with G. L. c. 271, § 17B, the telephone records demand statute, as then in effect. That statute in essence authorized the Attorney General or a district attorney on certain conditions to demand of common carriers (like […]
Categories: News Tags: 1002316, Chamberlin, Commonwealth, Lawyers, Weekly
Commonwealth v. Lovering (Lawyers Weekly No. 11-017-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 14-P-1914 Appeals Court COMMONWEALTH vs. ALBERT LOVERING. No. 14-P-1914. Middlesex. December 4, 2015. – February 17, 2016. Present: Cypher, Wolohojian, & Carhart, JJ. Firearms. Evidence, Constructive possession. Abuse Prevention. Practice, Criminal, Required finding. Complaint received and sworn to in the Waltham Division of the District Court Department on October 11, 2011. The case was tried before Maurice R. Flynn, III, J. Kimberly M. Peterson for the defendant. Michael Shiposh, Assistant District Attorney, for the Commonwealth. WOLOHOJIAN, J. The question presented is whether there was sufficient evidence to prove beyond a reasonable doubt that the defendant had constructive possession of a firearm on the specific date of September 11, 2011. We agree with the defendant that the evidence was insufficient to prove that he constructively possessed the gun on the date charged in the complaint. We accordingly reverse his conviction of possessing a firearm without a firearm identification card, G. L. c. 269, § 10(h). However, because the evidence was sufficient to prove that the defendant owned the gun, we affirm his convictions of violating the gun storage statute, G. L. c. 140, § 131L, and of violating an abuse prevention order by failing to surrender the gun, G. L. c. 209A, § 7.[1] We review the denial of a motion for a required finding of not guilty by asking whether any rational fact finder, when viewing the evidence in the light most favorable to the Commonwealth, could find all material elements of the offense beyond a reasonable doubt. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). ”Circumstantial evidence is competent to establish guilt beyond a reasonable doubt.” Commonwealth v. Merola, 405 Mass. 529, 533 (1989). However, “[i]t is not enough for the appellate court to find that there was some record evidence, however slight, to support each essential element of the offense. Nor may a conviction rest upon the piling of inference upon inference or conjecture and speculation.” Commonwealth v. Armand, 411 Mass. 167, 170 (1991) (citation and quotation omitted). Taken in the light most favorable to the Commonwealth, the evidence showed the following. The defendant’s wife found a loaded Walther PPK handgun (gun) on September 11, 2011, while dusting the apartment she had shared with the defendant for approximately twelve years.[2] The gun was in a leather pouch which was, in turn, contained in an old wooden […]
Adoption of Douglas (and five companion cases) (Lawyers Weekly No. 10-022-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11918 ADOPTION OF DOUGLAS (and five companion cases[1]). February 17, 2016. Adoption, Standing, Visitation rights, Care and protection. Parent and Child, Adoption, Care and protection of minor. Minor, Visitation rights, Care and protection. Practice, Civil, Care and protection proceeding, Assistance of counsel. Supreme Judicial Court, Superintendence of inferior courts. These cases are appeals of consolidated care and protection petitions concerning six children — Douglas, Tom, Brian, Mark, Cole, and Frank. The appeals are brought by the biological mother of the six children; by the biological father of the two oldest children (father I) — Douglas and Tom; and by four of the children — Douglas, Tom, Brian, and Mark. They appeal from the provisions of decrees of the Juvenile Court denying parental visitation after termination of the parental rights of the mother, father I, and the biological father of the four younger children (father II) — Brian, Mark, Cole, and Frank.[2] The Appeals Court, in a memorandum and order pursuant to its rule 1:28, dismissed the appeals of the mother and father I. It concluded that neither had standing to challenge the orders concerning visitation because their parental rights had been terminated after the consolidated hearings, pursuant to G. L. c. 119, § 26, and G. L. c. 210, § 3, were concluded, and they had not appealed from the entry of the termination decrees. See Adoption of Douglas, 87 Mass. App. Ct. 1118 (2015). With respect to the appeal of the four children, the Appeals Court affirmed the decrees of the Juvenile Court. Id. We granted further appellate review, and affirm the Juvenile Court judge’s decrees. Background. The Department of Children and Families (department) filed a care and protection petition on behalf of Douglas, Tom, Brian, and Mark, alleging neglect due to substance use and domestic abuse of all four children. The department subsequently filed a care and protection petition on behalf of Cole and Frank, and the two petitions were consolidated. On March 3, 2010, the mother, father I, and father II each stipulated to his or her current unfitness and that their respective children were in need of care and protection.[3] On June 3 or 4, 2013, each of the parents submitted a written stipulation acknowledging his or her current unfitness, agreeing to the issuance of a decree terminating his or her respective parental […]
Commonwealth v. Dykens (Lawyers Weekly No. 10-021-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 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 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. We conclude that although Dykens the defendant may bring his […]