Commonwealth v. Gaetan Thibault.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-758

COMMONWEALTH

vs.

GAETAN THIBAULT. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The Commonwealth appeals from an order of a District Court

judge correcting the record of the defendant's conviction of

operating a motor vehicle while under the influence of alcohol

(OUI) to a continuance without a finding (CWOF). The

Commonwealth argues that the motion judge abused his discretion

because there was no evidence that the defendant was not

convicted of the offense. We vacate the order and remand the

matter for further consideration.

1The defendant did not file a brief or participate in this
appeal.
Background. A copy of the docket sheet reflects the

following. 2 On July 14, 1995, a complaint issued in the District

Court charging the defendant with OUI, a marked lanes violation,

and speeding. He pleaded not guilty to the OUI charge and not

responsible for the civil infractions. On July 28, 1995, the

defendant entered a new plea to the charges. For the OUI

charge, a box labeled "Admits suff. facts" was checked. A "G"

was written in the box labeled "FINDING." A box labeled "Cont.

w/o finding until:" was also checked, but no date was written in

the space provided. Under the box labeled "IMPRISONMENT AND

OTHER DISPOSITION," the docket reflects, in relevant part, that

the defendant received a disposition of "Prob To c. 90 § 24D to

7/28/96 lic SS 45." This would appear to reflect a sentence of

one year of probation with a license suspension for forty-five

days. See G. L. c. 90, § 24D. The defendant was also found

responsible for the civil infractions. A docket entry dated

August 1, 1996, states "Probation Terminated," and reflects that

the defendant was "discharged."

Nearly thirty years later, on April 3, 2024, the defendant

filed a motion for a new trial pursuant to Mass. R. Crim. P.

30 (b), as appearing in 435 Mass. 1501 (2001), arguing that the

2 The defendant's counsel obtained a copy of the docket
sheet from the clerk's office via e-mail message. As noted
infra, the original docket and paperwork were subsequently lost.

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conviction on his criminal offender record information (CORI)

report contradicted the findings on the docket sheet, which he

claimed reflected "a disposition that did not result in a

conviction." In support of his motion, the defendant submitted

an affidavit averring that on the date he changed his plea, he

"admitted to Facts Sufficient to Warrant a Guilty Finding." 3 The

defendant also submitted a copy of his CORI report as an exhibit

to his motion. 4 That record reflects a disposition type as

"CONVICTION" and a "Court Disposition" as guilty with probation

("G PROB"). The Commonwealth opposed the defendant's motion,

and in its opposition, explained that the original file for the

defendant's case could not be found.

On May 15, 2024, the motion judge, who was not the plea

judge, held a nonevidentiary hearing on the defendant's motion

for a new trial. During the hearing, the clerk stated that the

clerk's office had the original docket sheet, but at some point

"[t]he original was lost." A probation officer similarly

informed the judge that the probation department had a duplicate

copy of the docket sheet. At the hearing, defense counsel

argued, inter alia, that the "docket sheet is inconclusive,"

3 The defendant also averred that he discovered the
conviction when his application to renew his license to carry a
firearm was denied on that basis.

4 The defendant did not file the CORI report as an impounded
exhibit.

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that the "CARI [court activity record information] indicates

there's no doubt that [the defendant's] been a good citizen

since 1995," and asked that the defendant "be given the benefit

of the doubt here." He further stated that when the defendant

"reapplied for [a gun] license," he was denied based on the OUI

conviction.

The motion judge later denied the defendant's rule 30 (b)

motion, concluding that "no evidence was presented regarding the

validity of the plea," and that the Commonwealth would be

"severely prejudiced" by the allowance of the motion.

Nevertheless, the motion judge found that "the proper docket

entry is a CWOF and not a guilty conviction," and ordered, sua

sponte, that the docket be corrected to reflect a CWOF pursuant

to Mass. R. Crim. P. 42, 378 Mass. 919 (1979). The motion judge

further ordered that the probation department amend the

defendant's criminal record. The Commonwealth appeals.

Discussion. Pursuant to Mass. R. Crim. P. 42, "[c]lerical

mistakes in judgments, orders, or other parts of the record and

errors therein arising from oversight or omission may be

corrected by the court at any time of its own initiative or on

the motion of any party and after such notice, if any, as the

court orders." See Commonwealth v. Melo, 65 Mass. App. Ct. 674,

676 (2006) (rule 42 "provides a procedure to correct clerical

errors in court judgments or records of an otherwise legal

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sentence imposed by a judge"). "Such mistakes, however, do not

include or apply to the correction of errors of substance."

Commonwealth v. Miranda, 415 Mass. 1, 5 (1993). We review a

judge's decision to correct the record under rule 42 for an

abuse of discretion. See Commonwealth v. Dias, 385 Mass. 455,

460 n.9 (1982). See also L.L. v. Commonwealth, 470 Mass. 169,

185 n.27 (2014).

In the present case, we disagree with the Commonwealth's

contention that the record did not contain a clerical error.

See Reporter's Notes to Rule 42, Massachusetts Rules of Court,

Rules of Criminal Procedure, at 223 (Thomson Reuters 2025)

("[e]rrors which may be corrected pursuant to this rule must

arise out of 'misprisions, oversights, omissions, unintended

acts or failures to act,' . . . and not result from deliberate

action"). Where the docket contained a "G" finding for "guilty"

and a disposition of "probation," but also a checkmark

reflecting a CWOF, at least one of the notations was a clerical

error. See Miranda, 415 Mass. at 5 ("[m]aterial or substantial

errors are not ones of transcription, copying, or calculation,

but are those that trample the defendant's rightful

expectations"). Contrast Melo, 65 Mass. App. Ct. at 676 (no

clerical error involved where defendant "did not claim that any

documents or records of the court were in error").

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On this record, however, we agree with the Commonwealth

that there was no basis for the motion judge to conclude that

the defendant's conviction was the clerical error. During the

nonevidentiary hearing, the judge stated, "I don't know what the

plea bargain was. I have no idea." Although the defendant

averred that he "admitted to Facts Sufficient to Warrant a

Guilty Finding," he did not aver that he in fact received a

CWOF. See Commonwealth v. Bartos, 57 Mass. App. Ct. 751, 756

(2003) ("[a]n admission to sufficient facts followed by a

continuance without a finding is not a conviction under

Massachusetts law" [citation omitted]). Nor did the defendant

supplement the docket with any evidence that he received a CWOF,

and the 2023 CORI report reflected a disposition of "G PROB."

Cf. Commonwealth v. Lopez, 426 Mass. 657, 664-665 (1998) ("a

collateral challenge, like the defendant's, to a prior

conviction by guilty plea, if the challenge is to advance at

all, must be accompanied by sufficient credible and reliable

evidence to rebut a presumption that the prior conviction was

valid"). The omission of any averment, much less any evidence,

that the defendant received a CWOF is glaring. While the judge

reasoned that the defendant "would have been entitled to the

benefit of a CWOF," it is speculative to conclude that the "G"

finding was a clerical error. In this regard, we note that the

Reporter's Notes to rule 42 state that it is substantially

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identical to Mass. R. Civ. P. 60 (a), 365 Mass. 828 (1974),

which "seeks to ensure that the record of judgment reflects what

actually took place." Reporter's Notes to Rule 60 (a),

Massachusetts Rules of Court, Rules of Civil Procedure, at 87

(Thomson Reuters 2025). In this case, where the docket sheet

contained contradictory evidence regarding the disposition

received by the defendant, the motion judge abused his

discretion in determining, without more, that the record of

judgment did not reflect what actually took place. See

Reporter's Notes to Rule 42.

We also note that the judge fashioned the remedy in this

case after holding a nonevidentiary hearing on the defendant's

motion for a new trial. While a judge may exercise discretion

to correct the record sua sponte, where the Commonwealth was

responding to a motion brought under a different vehicle, i.e.,

rule 30, the Commonwealth should have been provided with an

opportunity to address the issue. This is especially so where

it was not clear from the record what the clerical error was.

Cf. Commonwealth v. Layne, 25 Mass. App. Ct. 1, 5 (1987)

(vacating order to "correct" mittimus when it was unclear if

judge was correcting clerical error or impermissibly revising

defendant's sentence). As mentioned supra, the record includes

several indicia that reflect a conviction: the "G" written on

the docket in the box labeled "FINDING"; the docket entry that

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the defendant's "probation" was terminated and he was

"discharged," rather than the case being dismissed; and the fact

that the disposition was transmitted to the Department of

Criminal Justice Information Services (formerly the Criminal

History Systems Board) as a conviction, as reflected on the

defendant's CORI report.

Accordingly, we vacate the order correcting the record of

the defendant's conviction. We remand the matter to the

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District Court for further proceedings consistent with this

decision. 5

So ordered.

By the Court (Neyman, Shin &
Wood, JJ. 6),

Clerk

Entered: August 4, 2025.

5 To the extent that further proceedings under rule 42 may
be held, evidentiary or otherwise, the defendant has the burden
to demonstrate that the present record contains a clerical error
or is otherwise incorrect. See, e.g., Commonwealth v. Mattos,
404 Mass. 672, 677 (1989) ("the docket and minutes of the clerk
are prima facie evidence of the facts recorded therein" but may
be "supplemented, or even rebutted, by other evidence" [citation
omitted]).

6 The panelists are listed in order of seniority.

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