430 Mass. 444 | Mass. | 1999
These cases were consolidated, and then reserved and reported without decision by a single justice of this court. One case involves a petition under G. L. c. 211, § 3, by Richard J. Burns, a former sergeant in the State police, in which he seeks to vacate an admission to sufficient facts made in response to criminal charges pending against him in the Boston Municipal Court Department. The other case is a petition seeking review by certiorari in connection with disciplinary proceedings instituted by the State police against Burns as a consequence of his conduct that gave rise to the criminal charges and certain conduct by him while the charges were pending. The superintendent of the Department of State police (superintendent), after review of the findings and recommendations of a trial board of the department (trial board),
1. The following provides the background necessary to dispose of Burns’s petition under G. L. c. 211, § 3. Bums, an eighteen-year veteran of the State police, became involved in an extramarital relationship with Mary Smith (a pseudonym) in 1994. The relationship became acrimonious and eventually terminated in 1995. Smith sought and obtained criminal complaints in the Boston Municipal Court against Burns on multiple charges of assault and battery, threats to commit assault and battery, assault by means of a dangerous weapon, and violation of an abuse prevention order. On December 29, 1995, Bums appeared in the Boston Municipal Court for a hearing on
On January 10, 1996, Burns, represented by counsel, appeared before a judge in the Boston Municipal Court and tendered an admission to sufficient facts as to all the criminal charges in exchange for an agreed on disposition of a continuance without a finding. The judge conducted a colloquy with Burns, heard a victim impact statement from Smith, and accepted Burns’s admission to sufficient facts with respect to all the criminal charges. The cases were continued for three years (until January 6, 1999), without a finding on Burns’s compliance with agreed on terms and conditions.
Subsequently, Bums, represented by new counsel, filed a motion under Mass. R. Grim. R 30 (b), 378 Mass. 900 (1979), seeking to withdraw his admission to sufficient facts. After a hearing, the judge who accepted the admission denied the motion, Bums took an appeal, and the Appeals Court affirmed the denial of the motion in an order pursuant to that court’s mie 1:28, on the ground that “[t]he finding of sufficient facts is not an appealable order.” See Commonwealth v. Bums, 46 Mass. App. Ct. 1105 (1998). We denied Bums’s application for further appellate review. Commonwealth v. Burns, 429 Mass. 1102 (1999). In the meantime, Bums’s three-year probationary period ended, and the charges against him were dismissed in accordance with the agreed on disposition. On March 1, 1999, Bums filed his petition pursuant to G. L. c. 211, § 3, in which he sought to set aside, or alternatively, to have further proceedings with respect to, his admission to sufficient facts.
Burns sought extraordinary relief under G. L. c. 211, § 3, because he deemed his admission to sufficient facts to be so legally defective as to require its nullification and his efforts to obtain relief through the ordinary appellate process had been
We need not decide whether the proceedings were legally invalid as Burns claims.
2. The following is the background necessary to understand the certiorari petition. Burns’s alleged conduct that led to the criminal complaints and his admission to sufficient facts, and other conduct by him while the complaints were pending, became the basis for the convening of a trial board of the department pursuant to G. L. c. 22C, § 13,
The trial board held an evidentiary hearing on the three charges. Burns admitted to the third charge (and its two specifications), and to specification 14 of Charges I and II, which asserted that he had violated an abuse prevention order. Bums contested the remaining specifications underlying Charges I and II. The trial board made written “Findings and Recom
Bums filed a petition for review in the District Court, pursuant to G. L. c. 22C, § 13, as to all the matters on which he had been convicted (except for the specifications to which he had admitted). A judge in the District Court reviewed the administrative record, concluded that “the finding[] and punishment issued by the [department of State [pjolice was justified,” and affirmed the department’s action. Bums then filed his petition for review by certiorari with the single justice.
General Laws c. 22C, § 13, requires the reviewing court to ascertain whether “upon all the evidence [the findings of the trial board] and [the] punishment [imposed] was justified.” Under this test, our duty on review is to examine for errors of law, see Commissioner of Pub. Safety v. Treadway, 368 Mass. 155, 159 (1975), a task equivalent to the standard of review imposed by G. L. c. 30A, § 14, with regard to decisions of administrative agencies.
There is no question that an error of law exists. The trial board’s decision on the contested charges and specifications contains considerable language and findings that favor Bums, and tend, explicitly or impliedly, to determine that the contested
Prima facie evidence is evidence that, until its effect is overcome by other evidence, compels the conclusion that the
The error by the trial board permeates all its findings with respect to the contested specifications in Charges I and II. The matters admitted to by Bums (the two specifications of Charge IE and specification 14 in Charges I and II) may not be sufficient in and of themselves to sustain the board’s decision.
The case must be remanded to the superintendent, who is to return it to the same trial board for a new decision based on the trial record.
3. Finally, Bums contends that the superintendent lacked the authority under the rules and regulations to impose a more severe sanction than that recommended by the trial board. It is necessary to decide the issue since the question of the superintendent’s authority may become relevant when the trial board makes its new decision after remand.
The mies and regulations were revised on March 19, 1997. The revised roles and regulations superseded all previous rules and regulations and, by their terms, applied only to causes of actions arising after March 19, 1997. Article 6.9.7 of the revised
We have reviewed the two sets of rules and regulations and conclude that they differ in essential fundamentals. The revised rules materially alter some of the authority vested in the parties, as well as the substantive rights afforded the accused. The 1992 rules and regulations do not expressly or implicitly confer on the superintendent the authority to impose harsher discipline on a charged member than that recommended by the trial board. Accordingly, the superintendent lacked authority to increase the trial board’s recommendation for discipline.
4. On Burns’s petition under G. L. c. 211, § 3, the case is remanded to the county court for entry of a judgment dismissing the petition for relief.
On Burns’s petition for review by certiorari, the case is remanded to the county court for entry of a judgment vacating the decisions of the superintendent and the trial board and remanding the matter to the superintendent for further proceedings consistent with this opinion.
So ordered.
The three members of the trial board are the other defendants in the certiorari action.
Bums was ordered not to have any contact with Smith or her family, to stay away from Smith’s home for a three-mile radius, to attend a certified batterers’ program, and to pay restitution and a victim-witness assessment fee.
Bums points out that, although he acknowledged that the Commonwealth had sufficient evidence to support convictions, he disagreed on the record with the truth of the Commonwealth’s evidence. The judge accepting the admission did so after recognizing that “considerable dispute exists between [the defendant] and the Commonwealth regarding the truth of this matter.” The required colloquy in connection with the admission, see Commonwealth v. Duquette, 386 Mass. 834, 845-846 (1982), was deficient. The judge failed to advise Bums that, in admitting to sufficient facts, he was waiving his privilege against self-incrimination. A similar oversight, in a case in which the defendant equivocated over his admission, was found fatal to the validity of the admission in Commonwealth v. Lewis, 399 Mass. 761, 763-764 (1987). Burns argues that his admission contains the same equivocation and must be held invalid under the reasoning in the Lewis case. Cf. Commonwealth v. Lamrini, 27 Mass. App. Ct. 662, 663-664 (1989); Commonwealth v. Dozier, 24 Mass. App. Ct. 961, 961-962 (1987), where the self-incrimination right was not explained, but the pleas were upheld based on defendant’s understanding of, and familiarity with, criminal proceedings.
There is also another reason why Burns’s criminal case is moot. As we discuss later in this opinion, the superintendent did not have the authority to increase the trial board’s recommendation from a suspension (until January 6, 1999), to a discharge from the State police. Accordingly, Bums has already served his suspension and is no longer adversely affected by this part of the board’s decision or the superintendent’s action.
The board consisted of three members of the State police, one member designated as president and one designated as secretary. The board appears analogous to a military court martial board.
As will be discussed later in this opinion, these 1992 rules and regulations were subsequently revised in March, 1997. Unless otherwise indicated, all references herein to the rules and regulations, and any articles contained therein, will be to those in effect prior to 1997.
This date appears to have been intended to coincide with the date of dismissal of the charges in the Boston Municipal Court that were continued without a finding under Burns’s admission.
The petition for review by certiorari was filed pursuant to G. L. c. 249, § 4, in view of the provision in G. L. c. 22C, § 13, that the decision of a District Court on a petition for review thereunder is “final and conclusive.” Cf. Curley v. Lynn, 408 Mass. 39, 41 (1990); Commissioner of Pub. Safety v. Treadway, 368 Mass. 155, 158 & n.3 (1975).
For instance, the board stated that “[ajlthough Sergeant Richard J. Bums admitted to sufficient facts in Boston Municipal Court concerning complaints lodged by [the complainant] the Board finds there is serious doubt as to whether these crimes were committed by Sergeant Bums. The complainant in this matter never testified before the Board. There was sufficient testimony and evidence presented by Sergeant Burns and his counsel to leave serious doubt in the minds of the Board as to what actions took place between Sergeant Burns and [the complainant].” Moreover, the board found it “plausible” that Burns did not believe he was admitting to guilt when he admitted to sufficient facts, and that he did so to avoid returning to the jail where he claimed his safety was in jeopardy. The board also commented on the absence of any medical, physical or testimonial evidence corroborating the complainant’s allegations that Burns had assaulted her. Finally, the board took note of the coincidental timing between the complainant’s allegations and when Bums broke off their romantic relationship.
Our conclusion that the board misunderstood the evidentiary weight to be given prima facie evidence is confirmed by statements made by board members in the course of the trial. For example, the secretary admitted to being confused as to why Burns’s case had to be tried before the board at all “where [the board member could] go by court documents that said that on such and such a date back in 1995, Sergeant Burns stood in the Boston Municipal Court represented by counsel and admitted to sufficient facts on these matters.” The president of the board commented that “[the board] can’t countermand a decision of the court if [Burns pleaded] admission to sufficient facts for an assault and battery dangerous weapon, [the board] can’t disregard that under the charge that says he’s violated a statute law.”
The superintendent argues that, even without Burns’s admission to sufficient facts, the board’s action on all three charges can be independently upheld based solely on the specifications to which Burns admitted before the board. However, the board’s decision gives no indication of how much weight it placed on each charge and specification when concluding he was guilty and formulating the recommended discipline. We shall not substitute our judgment and supply a reasoned basis for the board’s action that the board itself has not supplied. See Costello v. Department of Pub. Utils., 391 Mass. 527, 535-536 (1984). It is conceivable that the board’s recommendation may have been more lenient in the absence of the potentially cumulative effect of the guilty findings on all thirty specifications.
The superintendent argues that the board’s acknowledgment that Burns’s presentation during the trial raised serious doubt as to whether he committed the charged offenses was simply an indication that the board considered Burns’s evidence, but ultimately still found it insufficient to overcome the prima facie case created by his admission to sufficient facts. This argument is unpersuasive in view of the strong language of the board’s decision.
If one or more of the members of the original trial board are unavailable, the superintendent may substitute a new member in accordance with the selection process provided in art. 6.6 of the 1992 rules and regulations.
The trial board erroneously applied art. 5.4.2 of the regulations regarding prima facie evidence to both Charges I and II. However, it is clear from the express language of the rules and regulations that this article only applies to Charge I, alleging Burns’s failure to conform his conduct to the law. In the event of reconsideration by the board, the fact that Burns admitted to sufficient facts and his case was continued without a finding is not to be considered prima facie evidence on Charge II, alleging that he engaged in unbecoming conduct.
In some contexts, an admission to sufficient facts in a criminal proceeding is insufficient evidence, standing alone, of proof of charges. See Santos v. Director of the Div. of Employment Sec., 398 Mass. 471, 473 (1986); Wardell v. Director of the Div. of Employment Sec., 391 Mass. 433, 436-437 (1986). Whether this is true in other contexts, however, is largely dependent on the specific language used in the statute or regulation that sets the standard for determining whether certain action is warranted. For instance, although the superintendent relies on Director of the Div. of Employment Sec. v. Mattapoisett, 392 Mass. 858, 863 (1984), in claiming that “[t]he standard for dismissal is ‘substantially less rigorous’ than that for denying unemployment compensation,” that case was comparing the language of two different statutes that are not relevant to the current action. How “rigorous” the standard may be for Burns’s dismissal, and what evidence is sufficient to satisfy that standard, must be determined by the applicable rules and regulations governing his conduct.
