RICHARD J. BURNS VS. COMMONWEALTH (and a consolidated case [Note 1])

GREANEY, J. These cases were consolidated, and then reserved and reported without decision by a single justice of this court. One case involves a petition under G. L. c. 211, s. 3, by Richard J. Burns, a former sergeant in the State police, in which he seeks to vacate an admission to sufficient facts made in response to criminal charges pending against him in the Boston Municipal Court Department. The other case is a petition seeking review by certiorari in connection with disciplinary proceedings instituted by the State police against Bums as a consequence of his conduct that gave rise to the criminal charges and certain conduct by him while the charges were pending. The superintendent of the Department of State police (superintendent), after review of the findings and recommendations of a trial board of the department (trial board) [Note 2], concluded that Bums should forfeit promotion rights, be reduced to the rank of trooper, and be discharged from the State police. The members of the trial board had considered, among other evidence, Burns's admission in the Boston Municipal Court to sufficient facts in deciding two of the three charges placed before them for trial. We conclude that, on his petition under G. L. c. 211, s. 3, Burns is not entitled to relief because the case is moot, and we direct that the petition for relief be dismissed. We conclude on Bums's certiorari petition that the decisions of the superintendent and the trial board must be set aside and that Burns is entitled to a redetermination of the specifications underlying Charges I and II, except specification 14, if the State police decide to reconsider the matter.

1. The following provides the background necessary to dispose of Burns's petition under G. L. c. 211, s. 3. Burns, an eighteen-year veteran of the State police, became involved in an extramarital relationship with Mary Smith (a pseudonym) in 1994. The relationship became acrimonious and eventually terminated in 1995. Smith sought and obtained criminal complaints in the Boston Municipal Court against Bums on multiple charges of assault and battery, threats to commit assault and battery, assault by means of a dangerous weapon, and violation of an abuse prevention order. On December 29, 1995, Burns appeared in the Boston Municipal Court for a hearing on

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an alleged violation of the protective order Smith had obtained against him after she saw him driving by her house in a red pick-up truck. At this hearing, Burns's bail was revoked and he was incarcerated in the Suffolk County jail.

On January 10, 1996, Burns, represented by counsel, appeared before a judge in the Boston Municipal Court and tendered an admission to sufficient facts as to all the criminal charges in exchange for an agreed on disposition of a continuance without a finding. The judge conducted a colloquy with Burns, heard a victim impact statement from Smith, and accepted Burns's admission to sufficient facts with respect to all the criminal charges. The cases were continued for three years (until January 6, 1999), without a finding on Burns's compliance with agreed on terms and conditions [Note 3]. Successful compliance would result in dismissal of all charges. In the alternative, the judge determined that, if Burns violated any of the terms and conditions of the continuance, guilty findings would enter on the charges, and he would be sentenced to two and one-half years in a house of correction.

Subsequently, Bums, represented by new counsel, filed a motion under Mass. R. Crim. P. 30 (b), 378 Mass. 900 (1979), seeking to withdraw his admission to sufficient facts. After a hearing, the judge who accepted the admission denied the motion, Bums took an appeal, and the Appeals Court affirmed the denial of the motion in an order pursuant to that court's rule 1:28, on the ground that "[t]he finding of sufficient facts is not an appealable order." See Commonwealth v. Bums, 46 Mass. App. Ct. 1105 (1998). We denied Burns's application for further appellate review. Commonwealth v. Burns, 429 Mass. 1102 (1999). In the meantime, Bums's three-year probationary period ended, and the charges against him were dismissed in accordance with the agreed on disposition. On March 1, 1999, Burn's filed his Petition pursuant to G. L. c. 211, 41, in which he sought to set aside, or alternatively, to have further proceedings with respect to, his admission to sufficient facts.

Burns sought extraordinary relief under G. L. c. 211, s. 3, because he deemed his admission to sufficient facts to be so legally defective as to require its nullification and his efforts to obtain relief through the ordinary appellate process had been

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rejected. Burns's admission to sufficient facts in the Boston Municipal Court appears to have been made pursuant to G. L. c% 278, s. 18, which authorizes a judge to accept such an admission and then to continue the case to a specific date with the defendant placed on probation and ordered to comply with enumerated terms and conditions. If the defendant satisfactorily completes the probation period, the charges are dismissed. See Commonwealth v. Pyles, 423 Mass. 717, 720-723 (1996).

We need not decide whether the proceedings were legally invalid as Burns claims [Note 4]. We also need not decide whether extraordinary relief under G. L. c. 211, s. 3, may be available where a defendant has been unsuccessful in attempting, by a rule 30 (b) motion, to set aside an admission to sufficient facts that has not resulted in a conviction. See generally Fire Chief of E. Bridgewater v. Plymouth County Retirement Bd., 47 Mass. App. Ct. 66, 71 (1999); Commonwealth v. Jackson, 45 Mass. App. Ct. 666, 670 (1998); Commonwealth v. Walsh, 43 Mass. App. Ct. 924 (1997). By the time Bums filed his petition under G. L. c. 211, s. 3, the criminal charges against him had been dismissed. This, in effect, rendered moot any defects in the underlying proceedings. See Delaney v. Commonwealth, 415 Mass. 490, 492 (1993). See also Matter of Rudnicki, 421 Mass. 1006, 1007 (1995). Because we next conclude that those portions of the trial board's decision which were influenced by Bums's admission to sufficient facts must be set aside, and further conclude that Bums's admission will have no special evidentiary weight in connection with any reconsideration of

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the disciplinary charges, this is not an appropriate occasion for general discussion of the availability of G. L. c. 211, s. 3, relief to a case like Burns's on the basis that his situation may be repeated, but is one that may evade review. The petition for relief under G. L. c. 211, s. 3, will be dismissed [Note 5].

2. The following is the background necessary to understand the certiorari petition. Bums's alleged conduct that led to the criminal complaints and his admission to sufficient facts, and other conduct by him while the complaints were pending, became the basis for the convening of a trial board of the department pursuant to G. L. c. 22C, s. 13 [Note 6] to hear and decide three charges against him. Charge I asserted that Bums had failed to conform his conduct to the law in violation of art. 5.4 of the 1992 rules and regulations governing members of the State police (rules and regulations) [Note 7]. The charge was accompanied by fourteen specifications. Charge II asserted that Burns had violated art. 5.2 of the rules and regulations by engaging in conduct unbecoming a member of the State police. This charge was also supported by fourteen specifications that had the same factual underpinnings as the specifications in Charge I. Charge III accused Burns of violating art, 5.24.1 of the rules and regulations by attempting to interfere with the pending proceedings in the Boston Municipal Court. This charge was accompanied by two specifications.

The trial board held an evidentiary hearing on the three charges. Burns admitted to the third charge (and its two specifications), and to specification 14 of Charges I and II, which asserted that he had violated an abuse prevention order. Bums contested the remaining specifications underlying Charges I and II. The trial board made written "Findings and Recom-

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mendations" and unanimously concluded that Burns was "guilty" on all three charges and their specifications. The board recommended that Bums's existing suspension be continued until January 6, 1999 [Note 8], and that he thereafter be reduced in rank and transferred from his current assignment. The board's decision then made its way, in keeping with department procedure, to the superintendent for review and approval of the board's recommendation as to Burns's discipline. The superintendent rejected the board's recommendation, imposing instead discipline consisting of Bums's forfeiture of promotion rights, his reduction in rank to trooper, and his termination by dishonorable discharge from the State police.

Burns filed a petition for review in the District Court, pursuant to G. L. c. 22C, s. 13, as to all the matters on which he had been convicted (except for the specifications to which he had admitted). A judge in the District Court reviewed the administrative record, concluded that "the finding[] and punishment issued by the [d]epartment of State [p]olice was justified," and affirmed the department's action. Bums then filed his petition for review by certiorari with the single justice [Note 9]. Burns argues that the decision of the trial board must be set aside. We agree.

General Laws c. 22C, s. 13, requires the reviewing court to ascertain whether "upon all the evidence [the findings of the trial board] and [the] punishment [imposed] was justified." Under this test, our duty on review is to examine for errors of law, see Commissioner of Pub. Safety v. Treadway, 368 Mass. 155, 159 (1975), a task equivalent to the standard of review imposed by G. L. c. 30A, s. 14, with regard to decisions of administrative agencies.

There is no question that an error of law exists. The trial board's decision on the contented charges and specifications contains considerable language and findings that favor Bums, and tend, explicitly or impliedly, to determine that the contested

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charges were not proved [Note 10]. Nevertheless, its decision indicates that the board felt compelled to find Burns guilty on all the contested charges because of his admission to sufficient facts in the Boston Municipal Court to criminal complaints that constituted the gravamen of the charges before the board. It clearly appears that the board felt so compelled because of art. 5.4.2 of the rules and regulations, which provides, with reference to the requirement that a member of the State police conform his conduct to the law, that "[a] finding of responsible, continuance without a finding, or conviction due to alleged violation(s) of any law shall be prima facie evidence of a violation of this section." We are satisfied that, in applying the latter standard, the board misunderstood the effect of prima facie evidence and believed that the record of Bums's admission to sufficient facts and the resulting continuance without a finding required his adjudication of guilt on the contested charges, notwithstanding the existence of evidence that would have warranted findings to the contrary [Note 11].

Prima facie evidence is evidence that, until its effect is overcome by other evidence, compels the conclusion that the

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evidence is true. Ford Motor Co. v. Barrett, 403 Mass. 240, 243 (1988). When evidence is introduced that contradicts the prima facie evidence, however, the prima facie evidence loses its artificial force and a factual issue arises. See Cheek v. EconoCar Rental Sys. of Boston, Inc., 393 Mass. 660, 663 (1985); Tuttle v. McGeeney, 344 Mass. 200, 206 (1962); Salter v. Leventhal, 337 Mass. 679, 696-697 (1958). In these circumstances, the prima facie evidence is no more significant than any other evidence, but must be weighed equally with all other evidence to determine whether a particular fact has been proved. Id. Furthermore, the burden of persuasion always remains on the party who must prove the point, even though the party is aided by prima facie evidence. See Commonwealth v. Pauley, 368 Mass. 286, 290 (1975); Salter v. Leventhal, supra at 697.

The error by the trial board permeates all its findings with respect to the contested specifications in Charges I and H. The matters admitted to by Bums (the two specifications of Charge III and specification 14 in Charges I and II) may not be sufficient in and of themselves to sustain the board's decision [Note 12]. Accordingly, the entire decision of the trial board on Charges I and II must be set aside [Note 13].

The case must be remanded to the superintendent, who is to return it to the same trial board for a new decision based on the trial record [Note 14]. Because there was substantial evidence to support specification 14 on Charges I and II, arid both specifications on

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Charge III, these allegations are to be considered proved. With respect to the remaining charges and specifications, in reevaluating the evidence, the trial board (among any other considerations deemed relevant) is to keep in mind (a) Bums's admission to sufficient facts in the Boston Municipal Court has relevance only to Charge I, alleging failure to conform conduct to the law [Note 15] ; and (b) because Bums presented evidence to contradict the evidence before the board of wrongdoing on the contested charges, his admission to sufficient facts has no prima facie effect, and the board is to give it whatever weight it deserves in light of the transcript of the admission and Bums's contentions regarding the admission's validity [Note 16].

3. Finally, Bums contends that the superintendent lacked the authority under the rules and regulations to impose a more severe sanction than that recommended by the trial board. It is necessary to decide the issue since the question of the superintendent's authority may become relevant when the trial board makes its new decision after remand.

The rules and regulations were revised on March 19, 1997. The revised rules and regulations superseded all previous rules and regulations and, by their terms, applied only to causes of actions arising after March 19, 1997. Article 6.9.7 of the revised

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rules and regulations expressly authorizes the superintendent to "impose discipline which departs from the Trial Board's recommendations if facts, circumstances, evidence, aggravating or mitigating factors, or any other matters so dictate." The superintendent argues that this new language simply reinforces or clarifies that he had the authority under the former rules and regulations to increase a board's recommended discipline because, "[w]hile the words may have changed in the 1997 Rules & Regulations, the meaning did not."

We have reviewed the two sets of rules and regulations and conclude that they differ in essential fundamentals. The revised rules materially alter some of the authority vested in the parties, as well as the substantive rights afforded the accused. The 1992 rules and regulations do not expressly or implicitly confer on the superintendent the authority to impose harsher discipline on a charged member than that recommended by the trial board. Accordingly, the superintendent lacked authority to increase the trial board's recommendation for discipline.

4. On Burns's petition under G. L. c. 211, s. 3, the case is remanded to the county court for entry of a judgment dismissing the petition for relief.

On Burns's petition for review by certiorari, the case is remanded to the county court for entry of a judgment vacating the decisions of the superintendent and the trial board and remanding the matter to the superintendent for further proceedings consistent with this opinion.

So ordered.