and Entering. Larceny. Practice, Criminal, Complaint,
Dismissal, Appeal by Commonwealth. Jurisdiction, Felony.
Timothy St. Lawrence for the defendant.
Zachary Hillman, Assistant District Attorney, for the
four-count complaint, James C. Hardin was charged with (1)
malicious destruction of property having a value over $250,
(2) breaking and entering a motor vehicle in the daytime with
intent to commit a felony, (3) larceny of property having a
value of $250 or less, and (4) possession of a class B
controlled substance. A judge in the Boston Municipal Court
accepted Hardin's guilty plea as to counts 1 and 4,
charging malicious destruction and drug possession, and
dismissed counts 2 and 3, charging breaking and entering and
larceny, for lack of probable cause. The Commonwealth
appealed. In a divided opinion, the Appeals Court reversed
the dismissal of these counts. Commonwealth
v. Hardin, 88 Mass.App.Ct. 681 (2015). We
allowed Hardin's application for further appellate
review. We agree that these counts of the complaint should be
reinstated, but on grounds different from those relied on by
the Appeals Court.
did before the Appeals Court, Hardin concedes that probable
cause existed to support the two counts at issue. He argues,
however, that the dismissal should be affirmed on alternative
grounds. See, e.g., Commonwealth v. Va
Meng Joe, 425 Mass. 99, 102 (1997) ("[a]n appellate
court is free to affirm a ruling on grounds different from
those relied on by the [plea] judge if the correct or
preferred basis for affirmance is supported by the
record"). Specifically, Hardin argues that the
challenged counts of the complaint failed to allege a
cognizable criminal act and that the breaking and entering
count failed to allege an essential element of the offense,
namely, that Hardin broke and entered into the motor vehicle
of another person. Instead, the complaint alleges
that he "did . . . break and enter a . . . motor vehicle
. . ., the property of Known to
Commonwealth." Hardin's argument that the
complaint fails to state a crime raises an issue of subject
matter jurisdiction, which may be raised at any time,
Commonwealth v. Cantres, 405 Mass.
238, 239-240 (1989), and which cannot be waived.
Commonwealth v. Canty, 466 Mass.
535, 547 (2013), citing Commonwealth v.
Palladino, 358 Mass. 28, 31 (1970). It is the
court's duty to consider a challenge to its jurisdiction
whenever it is raised, and even to consider such an issue on
its own motion. See Commonwealth v.
Andler, 247 Mass. 580, 582 (1924), and cases cited
(dismissing complaint sua sponte after conviction, where
"the complaint set forth no crime known to the law
.... No court has jurisdiction to sentence a defendant for
that which is not a crime").
complaint was adequate to charge Hardin with each offense and
to establish jurisdiction in the Boston Municipal Court.
"[A] complaint shall contain a caption as provided by
law, together with a plain, concise description of the act
which constitutes the crime or an appropriate legal term
descriptive thereof." Mass. R. Crim. P. 4 (a), 378 Mass.
849 (1979). A charging instrument must "provide a
defendant with fair notice of the crime with which he is
charged." Canty, supra at 547, citing
Commonwealth v. Dixon, 458 Mass.
446, 456 (2010). "A complaint or indictment will not be
dismissed . . . 'if the offense is charged with
sufficient clarity to show a violation of law and to permit
the defendant to know the nature of the accusation against
him.'" Canty, supra, quoting
Commonwealth v. Fernandes, 430
Mass. 517, 519-520 (1999), cert, denied sub nom.
Martinez v. Massachusetts, 530
U.S. 1281 (2000) . See G. L. c. 277, § 34 ("An
indictment shall not be dismissed or be considered defective
or insufficient if it is sufficient to enable the defendant
to understand the charge and to prepare his defense; nor
shall it be considered defective or insufficient for lack of
any description or information that might be obtained by
requiring a bill of particulars"). Read in a
reasonable, commonsense manner, counts 2 and 3 meet these
standards by alleging in plain language that Hardin broke and
entered a motor vehicle with intent to commit a felony and
that he stole property. Each count also refers to the
statute Hardin allegedly violated, providing further notice
of the nature of the charges against him. Moreover, no
reasonable person would understand count 2 as alleging that
Hardin broke and entered his own property. There is no basis
to dismiss the complaint for lack of jurisdiction.
v. Wilson, 72 Mass.App.Ct. 416 (2008), is
not to the contrary. In that case, the complaint charged that
the defendant "did, by means of a dangerous weapon,
MOTOR VEHICLE, assault and beat COMM OF MASS [sic],
in violation of G. L. c. 265, § 15A." Id.
at 416. The complaint was defective because the crime of
assault and battery, as a crime against the person, requires
a human victim. Id. at 417. The Commonwealth of
Massachusetts is not capable of being the victim of an
assault and battery. The complaint in Wilson did not
state a crime, as "[t]here is no crime of assault and
battery upon the Commonwealth of Massachusetts."
Id. at 418. Here, in contrast, the offenses in
question are crimes against property. G. L. c. 266,
§§ 18 and 30. Any property owner, human or
otherwise, is capable of being the victim of such an offense.
Each count of the complaint, while awkward, is adequate to
allege that the victim of each offense was a property owner
whose identity is known to the Commonwealth.
order dismissing counts 2 and 3 of the complaint is reversed,
and the matter is remanded to the Boston Municipal Court for
further proceedings consistent with this opinion.
 The larceny count similarly alleges that
Hardin "did steal the property of Known to
Commonwealth." Hardin concedes that this is adequate to
allege that the property belonged to another person, as
implied by the term "steal." See
Commonwealth v. Hardin, 88
Mass.App.Ct. 681, 684 (2015) (Rubin, J., dissenting in part
and concurring in part).
 In this regard, we observe that the
malicious destruction count, to which Hardin pleaded guilty,
also alleges that Hardin destroyed the property of
"Known to Commonwealth." If such language rendered
the breaking and entering count jurisdictionally defective,
the malicious destruction count would suffer from the same
defect. See G. L. c. 266, § 127 ("Whoever destroys
or injures the personal property, dwelling house or building
of another ..." [emphasis added]). Hardin's
guilty plea does not waive any jurisdictional defect. See,
e.g., Commonwealth v. Canty, 466
Mass. 535, 546-547, 548 (2013); Commonwealth
v. Wilson, 72 Mass.App.Ct. 416 (2008)
(dismissing complaint ten years after guilty plea).
 Although G. L. c. 277, § 34, refers
only to an "indictment, " we treat it and like
statutes as applying equally to a complaint. See
Canty, 466 Mass. at 547, quoting
Mass. 517, 519-520 (1999), cert, denied sub nom.
U.S. 1281 (2000) ("A complaint or indictment
will not be dismissed . . . 'if the offense is charged
with sufficient clarity to show a violation of law and to
permit the defendant to know the nature of the accusation
against him'" [emphasis added]). Cf.
Mass. 28, 30 n.2 (1970) ("While [G. L. c. 277, § 17
(since repealed by ...