## Facts

- James O. Mills, a former Boston police officer, received an accidental disability pension administered by the Boston Retirement Board.
- To retain full pension benefits, Mills was required to file annual earnings statements under penalty of perjury, reporting outside earnings relevant to a statutory cap; exceeding the cap could trigger recoupment.
- Mills operated a private investigation business and performed extensive investigative work for the Committee for Public Counsel Services (CPCS).
- Evidence at trial included repeated underreporting of business income to the retirement board while continuing to collect full pension benefits.
- Evidence also included CPCS billing practices reflecting implausibly large reported hours, including claimed work exceeding 24 hours in a single day.
- A jury convicted Mills of multiple offenses, including larceny-related counts involving the retirement board and CPCS, as well as perjury, pension fraud, procurement-related offenses, false claims, and failure to file tax returns.
- Based on five larceny convictions, the trial judge adjudicated Mills a “common and notorious thief” and imposed an enhanced sentence, with concurrent lesser sentences on other counts.

## Issues

1. Whether the evidence and the jury instructions supported the three convictions for larceny from the retirement board, such that the trial judge properly denied a required finding of not guilty.
2. Whether the “common and notorious thief” adjudication and enhanced sentence were valid under the governing statute.
3. Whether the sentencing judge relied on improper considerations, including Mills’s exercise of constitutional rights, requiring resentencing.

## Decision

- The court reversed the three larceny-from-retirement-board convictions and remanded those counts for a new trial because the case was submitted to the jury on an inadequately instructed theft theory.
- The court vacated the “common and notorious thief” adjudication and the enhanced sentence because the adjudication depended on five larceny convictions and three were set aside for retrial.
- The court remanded the remaining convictions for resentencing before a different judge due to concerns that the original sentencing reflected impermissible reliance on Mills’s silence and related improper considerations.

## Legal Principles

- Under Massachusetts’ consolidated theft statute, the Commonwealth may prove theft by establishing the elements of traditional larceny, larceny by false pretenses, or embezzlement, but the jury must be properly instructed on a complete and legally valid theory supporting conviction.
- Statutory merger of theft offenses does not permit affirmance of a conviction based on an alternative mode of theft not adequately framed and explained to the jury at trial.
- Larceny by false pretenses requires proof of a knowingly false representation made to induce reliance and actual reliance by the victim in parting with property.
- A sentencing court may not punish a defendant for exercising constitutional rights, including the right to remain silent or the right to proceed to trial; when the record suggests such considerations affected sentencing, resentencing before a different judge is an appropriate remedy.

## Conclusion

The court set aside the retirement-board larceny convictions for retrial due to instructional and theory defects, vacated the enhanced “common and notorious thief” adjudication dependent on those convictions, and ordered resentencing before a different judge on the remaining convictions to avoid punishment based on protected constitutional choices.


Commonwealth v. Mills, 436 Mass. 387 (2002)