Opinion
11-P-66
12-28-2011
COMMONWEALTH v. BRAD S. ALLEN.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
There is no merit to the defendant's challenge to the denial of his motion to suppress evidence resulting from the stop of the motor vehicle he was operating prior to his arrest, for substantially the reasons set forth in the Commonwealth's brief at pages nine to fifteen, and there is likewise no merit to his contention that the evidence was insufficient to support his conviction of operating a motor vehicle while under the influence of intoxicating liquor (OUI), for the reasons set forth in the Commonwealth's brief at pages fifteen to eighteen.
However, the defendant correctly observes that the trial judge did not conduct a trial on the subsequent offense portion of the OUI charge, as required by G. L. c. 278, § 11A. See Commonwealth v. Zuzick, 45 Mass. App. Ct. 71, 74 (1998). The complaint charged the defendant with OUI, second offense, and the judgment entered on the docket reflected a conviction of that charge. It accordingly is of little moment that the defendant received a favorable sentencing disposition (essentially as though he had been convicted of a first offense). The judgment is vacated, as is the finding as to OUI second offense. A corrected finding of guilt on the underlying offense of OUI shall be entered on the docket and, as corrected, shall stand. The case is remanded to the District Court for proceedings on that portion of the complaint charging OUI second offense. See id. at 75.
So ordered.
By the Court (Green, Sikora & Wolohojian, JJ.),