Opinion
No. 15–P–703.
11-02-2016
COMMONWEALTH v. Jose A. PACHECO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a District Court jury trial on two related criminal complaints, the defendant was found guilty of four counts of uttering a false check, in violation of G.L. c. 267, § 5, and two counts of larceny by check, in violation of G.L. c. 266, §§ 30(1) & 37 (one for a check in an amount more than $250, and the other for a check in an amount equal to or less than $250). The defendant received concurrent sentences of two years in a house of correction on each of the four uttering convictions. He was not sentenced on the larceny convictions; instead, they were “guilty filed.” The defendant appeals the judgments on the uttering convictions, and also seeks review of the filed larceny convictions. We affirm in part and reverse in part.
Counts 1, 2, and 5 in docket number 1433CR003027, and count 1 in docket number 1433CR002598.
The defendant was acquitted of three counts of forgery.
Facts. This case involves four checks written on the Citizens Bank account of Lucretia Connor, whose checkbook was lost on or about April 16, 2014. The signature line on each of the checks bore the name “Lucretia Connor,” but Connor had not signed them. Connor discovered the problem on or about April 19, when she checked her account balance. She saw that her account was overdrawn and that two checks that she had not written, numbers 710 and 711, had been posted to her account. Connor informed Citizens Bank, and a stop-payment order was placed on all of her lost checks.
We summarize the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676–677 (1979).
Check number 710 was in the amount of $600, and was made out to and endorsed by “Jose Ruiz.” Check number 711 was in the amount of $200, and was made out to and endorsed by “Jose Colon.” The “memo line” on both checks stated that they had been written for “car part[s].” Just before 10:00 P.M. on the day that Connor's checkbook was lost, check numbers 710 and 711 had been deposited in the defendant's Bank of America account via automatic teller machine (ATM). A video recording of this ATM transaction showed a man, later identified as the defendant, making the deposit.
A few days later, two additional checks drawn on Connor's account, numbers 714 and 716, were presented in person to Citizens Bank, the first by the defendant, and the second by a person to whom he had given the check as payment. Check number 714 was in the amount of $1,200, and was made out to the defendant. When the defendant attempted to cash the check at Citizens Bank, the bank telephoned Connor, and she came down to the bank. Connor, who had never seen the defendant before, approached him and said, “That's my checkbook. I did not give you that.” The defendant stated, “I know. Someone gave it to me to work on their car.... I got it from somebody. It was given to me for work I did.”
Check number 716 was in the amount of $150 and was made payable to an attorney named Maria Christos. On April 23, the defendant gave Christos the check after she agreed to represent him in a matter. He wrote out the check, leaving the payee blank, and Christos filled in her name. When she went to Citizens Bank to cash the check, she was informed that there was a hold on the account. She never was able to cash the check, and never received any other payment from the defendant. She also never performed any services for him. Christos was not surprised to receive a check signed by someone other than the defendant, as relatives or girl friends of her clients commonly paid for her legal services.
Discussion. 1. Uttering. Uttering requires proof that the defendant offered as genuine, an instrument known to be forged, with the intent to defraud. Commonwealth v. O'Connell, 438 Mass. 658, 664 n.9 (2003). Here, the defendant claims that there was insufficient evidence that he knew the checks were falsely made. We disagree. “A person's knowledge or intent is a matter of fact, which is often not susceptible of proof by direct evidence, so resort is frequently made to proof by inference from all the facts and circumstances developed at the trial.” Commonwealth v. Stewart, 411 Mass. 345, 350 (1991). Here, the defendant stated that someone had given him the checkbook in return for work he did on a car. The checkbook owner, Connor, testified that she had never met nor heard of the defendant, and that the signatures on the checks were not hers. Whether the defendant, himself, wrote or signed the checks, he knowingly negotiated, attempted to negotiate, or used as payment checks from a stranger's checkbook. The jury were entitled to infer that he knew that the checks were fraudulent when he uttered them.
2. Larceny by check. We first consider whether the two filed larceny by check convictions are entitled to appellate review. While ordinarily we do not consider appeals from filed convictions, “a defendant has a right to appeal a conviction on file without [his] consent.” Commonwealth v. Caetano, 470 Mass. 774, 777 (2015), citing Commonwealth v. Delgado, 367 Mass. 432, 438 (1975). This case falls within that exception.
Here, the judge announced at sentencing that he would be placing the larceny convictions on file, but because an issue had been raised as to whether these charges were properly sent to the jury, the judge gave the defendant three weeks in which to file an objection to placing them on file. The Commonwealth argues that the defendant's failure to do so is tantamount to consent. However, this procedure was no substitute for compliance with Mass.R.Crim.P. 28(e), 453 Mass. 1501 (2009), which requires that the defendant give written consent to the filing, and that the judge provide specific advisories to the defendant, on the record and in open court, before accepting that consent. We therefore address the defendant's claim that there was insufficient evidence to support the filed convictions.
The complaint for larceny by check in an amount more than $250 was based on check number 710, which the defendant deposited into his Bank of America account. The complaint for larceny by check in an amount equal to or less than $250 was based on check number 711, also deposited into the defendant's Bank of America account. In neither instance was an essential element of larceny by check established, namely that the defendant made, drew, uttered, or delivered the checks “with knowledge that the maker or drawer has not sufficient funds or credit at such bank or other depositary for the payment of such instrument.” G.L. c. 266, § 37, as appearing in St.1937, c. 99. See Commonwealth v. Goren, 72 Mass.App.Ct. 678, 679680 (2008) (Larceny by check statute “imposes criminal consequences on the intentional delivery of checks drawn against insufficient funds”). For this reason, if no other, the defendant was entitled to the allowance of his motion for required findings of not guilty on the larceny by check charges.
That the statute was not an apt fit for the facts of this case is illustrated by the fact that the judge had to make changes to the model jury instruction in order to create a plausible way to submit the larceny by check charges to the jury.
Deciding as we do, we need not consider the defendant's further arguments that the wrong victim was identified in the complaints, and that correcting the jury verdict forms was error.
Conclusion. The judgments on the four counts of uttering a false check are affirmed. The orders placing the two larceny convictions on file are vacated, and on those charges, the verdicts are set aside, and judgments are to be entered for the defendant.