COMMONWEALTH v. CLARKE (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant appeals from the denial of his motion to withdraw his admission to sufficient facts on a complaint which charged him with violating an abuse prevention order. See G. L. c. 209A, § 7. On appeal, the defendant claims (and the Commonwealth concedes) that the judge erred in denying his motion where there was an insufficient factual basis to establish the defendant had notice of the abuse prevention order. We reverse.

To convict a defendant of violating an abuse prevention order, the Commonwealth must prove four elements: (1) a court issued an abuse prevention order; (2) the order was in effect on the date when its violation allegedly occurred; (3) the defendant knew the relevant terms of the order were in effect, either by having received a copy of the order or by having learned of the terms of the order in some other way; and (4) the defendant violated a term of the order. See Commonwealth v. Shea, 467 Mass. 788, 794 (2014). Here, relative to the third element, there was nothing contained in the prosecutor's factual recitation that suggested that the defendant had knowledge of the order. There was no indication that the defendant had been served in hand or by mail,² or that he learned of the order in some other way. Because there was an inadequate factual basis for the plea, the judge should not have accepted the defendant's admission to sufficient facts. See Commonwealth v. Hart, 467 Mass. 322, 328 (2014).

The order denying the defendant's motion to withdraw his admission is reversed, and the matter is remanded to the Boston Municipal Court for further proceedings consistent with this memorandum and order.

So ordered.

Reversed.

FOOTNOTES

2.   There were attempts to serve the defendant in hand and later by mail, but the addresses were incorrect.