Commonwealth v. Hardin (Lawyers Weekly No. 10-185-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12067 COMMONWEALTH vs. JAMES C. HARDIN. December 6, 2016. Breaking and Entering. Larceny. Practice, Criminal, Complaint, Dismissal, Appeal by Commonwealth. Jurisdiction, Felony. In a four-count complaint, James C. Hardin was charged with (1) malicious destruction of property having a value over $ 250, (2) breaking and entering a motor vehicle in the daytime with intent to commit a felony, (3) larceny of property having a value of $ 250 or less, and (4) possession of a class B controlled substance. A judge in the Boston Municipal Court accepted Hardin’s guilty plea as to counts 1 and 4, charging malicious destruction and drug possession, and dismissed counts 2 and 3, charging breaking and entering and larceny, for lack of probable cause. The Commonwealth appealed. In a divided opinion, the Appeals Court reversed the dismissal of these counts. Commonwealth v. Hardin, 88 Mass. App. Ct. 681 (2015). We allowed Hardin’s application for further appellate review. We agree that these counts of the complaint should be reinstated, but on grounds different from those relied on by the Appeals Court. As he did before the Appeals Court, Hardin concedes that probable cause existed to support the two counts at issue. He argues, however, that the dismissal should be affirmed on alternative grounds. See, e.g., Commonwealth v. Va Meng Joe, 425 Mass. 99, 102 (1997) (“[a]n appellate court is free to affirm a ruling on grounds different from those relied on by the [plea] judge if the correct or preferred basis for affirmance is supported by the record”). Specifically, Hardin argues that the challenged counts of the complaint failed to allege a cognizable criminal act and that the breaking and entering count failed to allege an essential element of the offense, namely, that Hardin broke and entered into the motor vehicle of another person. Instead, the complaint alleges that he “did . . . break and enter a . . . motor vehicle . . . , the property of Known to Commonwealth.”[1] Hardin’s argument that the complaint fails to state a crime raises an issue of subject matter jurisdiction, which may be raised at any time, Commonwealth v. Cantres, 405 Mass. 238, 239-240 (1989), and which cannot be waived. Commonwealth v. Canty, 466 Mass. 535, 547 (2013), citing Commonwealth v. Palladino, 358 Mass. 28, 31 (1970). It is the court’s duty […]