Indictment found and returned in the Superior Court Department on August 28, 2008.

      A motion for sentencing on a plea of guilty to an indictment placed on file, filed on December 16, 2022, was heard by Shannon Frison, J.

      Catherine B. Sullivan Ledwidge for the defendant.

      Timothy Ferriter, Assistant District Attorney, for the Commonwealth.

      ENGLANDER, J.  This case requires us to address the procedures and standards for removing criminal convictions from "the file."  In 2011 the defendant pleaded guilty to three charges, the most serious of which was manslaughter; at that time the defendant also pleaded guilty to assault and battery by means of a dangerous weapon causing serious bodily injury (ABDW-SBI).  As part of sentencing the ABDW-SBI conviction was placed on file; the defendant was told that conviction would be removed from the file if he committed a "similar infraction," prior to the termination of his probation.[1]

      In 2020, and again in 2022, the defendant was involved in incidents that resulted in criminal charges against him -- one in which he threatened two women in a sober home in New Hampshire, and another where he battered a fellow inmate in the Middlesex house of correction.  The Commonwealth thereafter moved to sentence the defendant on the filed ABDW-SBI charge from 2011.  The judge found that the defendant had committed a "similar offense," and the defendant was sentenced to eighteen months in prison on the ABDW-SBI charge.

      On appeal, the defendant challenges the judge's determination that he committed a "similar offense" to his underlying conviction, pointing out that ABDW-SBI contains distinct elements from the offenses for which he was charged in 2020 and 2022.  The defendant also argues that he was entitled to but did not receive due process protections similar to those provided in a probation violation hearing, and that the condition placed on the filing of his ABDW-SBI charge was unconstitutionally vague.

      As discussed below, we look to the process of probation violation hearings to provide the applicable standards here, where the Commonwealth moved to sentence the defendant on a filed case based on the violation of an express condition.  The judge followed the appropriate process in this case, however, and applied appropriate standards.  Furthermore, the judge did not err in determining that the defendant's conduct was within the scope of a "similar infraction" to his 2011 offense, and the condition was not unconstitutionally vague.  We affirm.

      Background.  In October of 2011, the defendant pleaded guilty in the Superior Court to manslaughter, assault and battery by means of a dangerous weapon causing serious bodily injury, and assault and battery by means of a dangerous weapon (ABDW).  The convictions stemmed from a confrontation in June of 2008, which began when the victim returned home to find the defendant and another man on his porch.  The victim demanded that the defendant leave, and the defendant refused.  The situation escalated into a fight.  The defendant began to leave, and the victim threw gravel at him.  The defendant then returned and struck the victim twice with a knife.  The victim died from his wounds.

      At the plea hearing, the Commonwealth and the defendant recommended that the judge place the conviction of ABDW-SBI on file.  The judge asked, "Could you tell me the circumstances under which a case if I place it on file would be removed from file and for what term?"  The prosecutor responded:

"I would be asking that it be placed on file for the same period of probation that the Commonwealth and defense would be requesting on the other, which is a period of 5 years' probation from and after [the sentence for manslaughter].

"I would suggest that the circumstances that would give rise to it being removed would be the commission of some similar offense."

The prosecutor then clarified that a similar offense would be "[s]imilar to the offense charged, assault and battery [by means of] a dangerous weapon causing serious bodily injury."

      The judge ultimately sentenced the defendant to nine to twelve years on count one, the manslaughter charge, and five years of probation thereafter on count three, the ABDW charge.  The judge placed count two, the ABDW-SBI conviction, on file, to which the defendant consented.  As to count two, the clerk stated:  "that may be pulled out of file and sentenced upon if a similar infraction occurs within the next five years or during your probationary period."

      The defendant's probation began in August of 2019.  On the morning of June 14, 2020, the police responded to a report of two women and one man fighting at a sober living facility in Nashua, New Hampshire.  The officers entered a hallway and found the women in a room with a damaged door; the women yelled, "he threatened us with a knife."[2]  The defendant then entered the hallway.  The officers seized him and retrieved a knife from his waistband.  They arrested the defendant.

      The women reported later that day that the defendant had stood outside of their room, singing songs and making sexual remarks to them, and repeatedly entered their room without asking.  His demeanor became more aggressive, and the women told him to leave their room and closed the door.  The defendant then kicked in the door and entered the room, yelling at them.  He lifted up his shirt to reveal a knife tucked in his waistband.  One of the women asked if the defendant would stab her, and the defendant responded that he would if necessary.

      As a result of this incident the defendant pleaded guilty to, among other crimes, reckless conduct with a deadly weapon for kicking in the door.  See N.H. Rev. Stat. Ann. § 631:3, I ("A person is guilty of reckless conduct if he recklessly engages in conduct which places or may place another in danger of serious bodily injury"), and § 631:3, II ("Reckless conduct is a class B felony if the person uses a deadly weapon").  Other charges, including criminal threatening with a deadly weapon, N.H. Stat. Ann. § 631:4, were nol prossed.

      Subsequently, in August of 2022, while incarcerated at the Middlesex house of correction in Billerica, the defendant punched another inmate multiple times.  The other inmate suffered an injury to his face.  This incident was captured on videotape.  The defendant was charged in Lowell District Court with assault and battery.

      In December of 2022, the Commonwealth moved to remove the ABDW-SBI conviction from the file and sentence the defendant on that count.  Following a hearing, the motion judge, who was not the sentencing judge, allowed the Commonwealth's motion.  The judge concluded that "the sentencing judge's intent was to incentivize [the defendant] away from engaging in any violent conduct similar to that which formed the basis of the ABDW-SBI charge:  a physical altercation with another person," and that by his conduct in New Hampshire and Billerica, the defendant had committed a "similar offense" to ABDW-SBI.[3]

      Discussion.  1.  The "similar infraction" condition.  The defendant argues that the judge abused her discretion in determining that he committed "similar" offenses to ABDW-SBI in New Hampshire and Billerica, and that his case should not have been removed from the file.[4]  To resolve that question, however, we must first determine the procedures and standards that apply to a motion to remove a conviction from the file for sentencing, as well as our own standard of review on appeal.

      The procedure of placing cases on file after conviction has a long history in this Commonwealth, which is discussed in the Supreme Judicial Court's opinion in Commonwealth v. Simmons, 448 Mass. 687 (2007).  At common law, a judge could place a case on file after a guilty verdict, where "public justice [did] not require an immediate sentence," with the consent of the defendant and the prosecution, and "upon such terms as the court in its discretion may impose."  Simmons, supra at 693-694, quoting Commonwealth v. Dowdican's Bail, 115 Mass. 133, 136 (1874).  This practice served as a "predecessor to modern probation."  Simmons, supra at 693.

      In 2007, in Simmons, the Supreme Judicial Court reaffirmed the vitality of this practice, but called for a rule to be promulgated addressing the procedure for filing cases.  See id. at 699-700.  The Supreme Judicial Court thereafter promulgated rule 28 (e) of the Rules of Criminal Procedure.  See Mass. R. Crim. P. 28 (e), 453 Mass. 1501 (2009).  As relevant here, the rule states that when placing a case on file, the judge may, if both parties consent, "specify any events that may cause the case to be removed from the file."  Id.  The rule does not, however, state the procedures to be followed in removing a case from the file, other than stating that the standard of proof is "preponderance of the evidence."  Mass. R. Crim. P. 28 (e) (ii), as amended, 489 Mass. 1502 (2022).

      Although the question has never been expressly decided, the parties suggest, and we agree, that we should look to the process used in probation violation proceedings as a template when removing a case from the file.  Our courts have recognized that filing cases after conviction is a "predecessor to modern probation," Simmons, 448 Mass. at 693, and the Reporter's Notes to rule 28 (e) describe the process of probation violation hearings as "the closest analogy to removing a case from the file."  Reporters' Notes to Rule 28 (e), Mass. Ann. Laws Court Rules, Rules of Criminal Procedure (LexisNexis 2025) (2008 Reporters’ Notes).  Accordingly, the procedures for sentencing a defendant on a filed case generally should mirror the procedures for probation violation hearings.  This includes, for example, the types of evidence that may be considered.[5]  See Commonwealth v. Durling, 407 Mass. 108, 117-118 (1990) (probation violation may be shown by substantially reliable hearsay); 2008 Reporter's Notes, citing Commonwealth v. Holmgren, 421 Mass. 224, 226 (1995) (looking to probation violation procedure for burden of proof in removing case from file based on new criminal offense).

      We further agree that our standard of review is essentially the same as for review of a probation revocation.  We review the motion judge's allowance of the Commonwealth's motion to sentence for abuse of discretion or other error of law.  See Commonwealth v. Gelin, 494 Mass. 777, 783 (2024).  In particular, we determine "whether the record discloses sufficient reliable evidence to warrant the findings by the judge[, by a preponderance of the evidence,] that [the defendant] had violated the specified condition[]."  Id., quoting Commonwealth v. Jarrett, 491 Mass. 437, 440 (2023).

      Here the defendant argues that the judge erred in determining that the defendant's conduct was "similar" to ABDW-SBI.  The defendant emphasizes that his conduct lacked essential elements of ABDW-SBI -- in New Hampshire, he did not commit a battery and did not cause bodily injury, and in Billerica, he argues, he did not use a dangerous weapon or cause serious bodily injury.  The defendant also argues that the judge abused her discretion by relying on the defendant's supposed conviction of criminal threatening with a deadly weapon, where that offense had been nol prossed.  The defendant points out that the only evidence of this offense was hearsay that the defendant claims lacked substantial reliability -- namely, police reports from New Hampshire.  The defendant ignores, however, that he pleaded guilty to reckless conduct with a deadly weapon (the door) arising from the same incident.  See Commonwealth v. Ubeira-Gonzalez, 87 Mass. App. Ct. 37, 39 (2015), quoting United States v. Broce, 488 U.S. 563, 569 (1989) ("A plea of guilty and the ensuing conviction comprehend all of the factual and legal elements necessary to sustain a binding, final judgment of guilt and a lawful sentence").

      The interpretation of an express condition of filing a conviction, similar to the interpretation of a probation condition, is a question of law and results in de novo review.  Commonwealth v. Medeiros, 95 Mass. App. Ct. 132, 135 (2019).  See United States v. Gallo, 20 F.3d 7, 11 (1st Cir. 1994).  In conducting such review, we read the express condition -- as we would a probation condition -- "in a commonsense way."  Medeiros, supra at 138, quoting Gallo, supra at 12.  Here, we are not persuaded by the defendant's argument that a "similar" offense to ABDW-SBI must contain all or most of the elements of ABDW-SBI.  Instead, we give "similar" its commonplace meaning -- that is, sharing substantial commonalities, but not the same.  Cf. Merriam-Webster's Collegiate Dictionary 1161 (11th ed. 2007) (defining similar as, among other definitions, "having characteristics in common").  The motion judge did not err in finding that on the facts of this case, where in New Hampshire the defendant kicked down a door and threatened two women with a knife (the same deadly weapon that supported the ABDW-SBI conviction), and subsequently in Billerica battered another inmate repeatedly, the defendant committed "similar" infractions to his underlying offense. 

      Nor did the judge err in considering the defendant's actions in threatening two women with a knife.  Although the criminal threatening charge was nol prossed, the judge could permissibly consider the defendant's conduct if proved by a preponderance of the evidence, just as with a probation violation.  See Commonwealth v. Williams, 102 Mass. App. Ct. 626, 629 (2023).

      Here, while the evidence of the defendant's threatening conduct -- the New Hampshire police reports -- was hearsay, those reports bore substantial indicia of reliability, as defined in our probation violation case law, and the judge could permissibly rely on them to find a "similar infraction" had occurred.  See Durling, 407 Mass. at 118.  To determine the reliability of hearsay in this context, a judge may consider:

"(1) whether the evidence is based on personal knowledge or direct observation; (2) whether the evidence, if based on direct observation, was recorded close in time to the events in question; (3) the level of factual detail, as compared to generalized and conclusory assertions; (4) whether the statements are internally consistent; (5) whether the evidence is corroborated by information from other sources; (6) whether the declarant was disinterested when the statements were made; and (7) whether the statements were made under circumstances that support their veracity" (citation and alteration omitted).

Gelin, 494 Mass. at 784-785.  Here, the police reports -- which the Commonwealth submitted with its sentencing motion -- bore several of these indicia.  Specifically, the victims of the assault in New Hampshire made their reports based on personal observations made the same day as the incident.  The victims' statements are detailed, and internally consistent with each other and the reports of the responding police officers.  And as noted, the defendant pleaded guilty to a separate offense (reckless conduct with a deadly weapon) based on the incident described in the police reports, which provides strong support for their veracity.

      For these reasons, the judge did not err in determining that the evidence before her, including the police reports from New Hampshire and the video recording from Billerica, demonstrated by a preponderance of the evidence that the defendant committed a "similar infraction" to his 2011 conviction of ABDW-SBI.

      2.  Fair notice.  The defendant also argues that the condition placed on the filing of his case, that he not commit a "similar infraction," was unconstitutionally vague.  The defendant is entitled to certain due process protections with respect to removing his conviction from the file -- once again, protections similar to probationers facing probation violation proceedings.  As to probationers, while they are not given the "full panoply of constitutional protections applicable at a criminal trial," due process "requires that the Commonwealth provide probationers with certain protections at surrender hearings."  Durling, 407 Mass. at 112. 

      One such due process protection is the requirement that express conditions for removing a case from the file "provide reasonable guidance with respect to what activities are prohibited."  See Commonwealth v. Kendrick, 446 Mass. 72, 75 (2006).  See also 2008 Reporter's Notes (noting the requirement under rule 28 [e] [ii] that "the defendant [] receive notice of the reasons why the case can be removed from the file").  We also adopt for this context the standard for determining when a probation condition satisfies the notice requirement -- whether a condition provides at least "an imprecise but comprehensible normative standard so that [people] of common intelligence will know its meaning."  Kendrick, supra, quoting Commonwealth v. Orlando, 371 Mass. 732, 734 (1977).

      We analyze the defendant's vagueness challenge "as applied" -- that is, in light of the facts of the case.  See Commonwealth v. Hamilton, 95 Mass. App. Ct. 782, 784 (2019) (analyzing vagueness challenge to probation condition, after finding of probation violation, as as-applied challenge).  Furthermore, in determining whether a probation condition provides proper notice of forbidden conduct, our courts have emphasized that a condition should be read "with due regard to the circumstances in which it was imposed."  Kendrick, 446 Mass. at 75.  For example, in Kendrick, the probationer pleaded guilty to two counts of indecent assault and battery on a child; he used his car and dog to lure his victims.  He was sentenced to probation, and the judge added the condition that he have no contact with children under the age of sixteen.  Id. at 73.  While on probation, the defendant attended a car show at which children under sixteen were in attendance -- and brought his dog and displayed his car.  Id. at 74.  The court found that the "no contact" condition provided sufficient notice, as it communicated to a reasonable person that the defendant's actions at the car show constituted a probation violation.  See id. at 76-77.  Furthermore, the court noted that "[a]ny doubt that the conduct was forbidden by the probation condition is dispelled by its similarity to his conduct during his prior offenses where he used the car and the dog to establish relationships with his victims."  Id. at 77.

      Similarly, in the present case a person of ordinary intelligence would know that kicking down a door and threatening two women with a knife, and repeatedly battering an inmate, would constitute "similar" offenses to ABDW-SBI and accordingly constitute a triggering condition to remove the ABDW-SBI conviction from the file.  In any event, the defendant's 2020 conduct in New Hampshire shares such similarity to the underlying conduct in the 2011 ABDW-SBI conviction, including the escalation of a fight and the use of a knife (to injure in 2011, and to threaten in 2020), that "[a]ny doubt that the conduct was forbidden . . . is dispelled."  Kendrick, 446 Mass. at 77.

Judgment affirmed.

footnotes

[1] The filing of a case should include a written consent, stating "any time limit or events regarding removal from the file."  Mass. R. Crim. P. 28 (e), 453 Mass. 1501 (2009).  Although there is no dispute here concerning the time limits or events, such a written consent as required by the rule is a wise practice.  We note that while rule 28 (e) uses the term "case," herein we have used "case" and "conviction" interchangeably.

[2] These facts are taken from the responding officer's report, which was presented to the judge as an attachment to the Commonwealth's sentencing motion.

[3] The motion judge erroneously stated that the defendant had pleaded guilty to criminal threatening with a deadly weapon; that offense was nol prossed.

[4] The Commonwealth does not here argue that the defendant could have been sentenced on the grounds that the defendant committed any criminal offense, or that a related conviction had been overturned.  Accordingly, we limit our review to whether the judge could remove the case from the file because the defendant violated an express condition.

[5] Additional due process protections would also apply when removing a case from the file, including the right to notice and an opportunity to be heard, and to the extent that there are genuinely contested facts, the opportunity for the defendant to present witnesses and documentary evidence.  See Commonwealth v. Costa, 490 Mass. 118, 123-124 (2022).