Commonwealth v. Riz ( 2016 )

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14-P-1763 Appeals Court
COMMONWEALTH vs. JOSE RIZ.
No. 14-P-1763.
Bristol. March 9, 2016. - August 12, 2016.
Present: Cypher, Cohen, & Neyman, JJ.
Practice, Criminal, Probation, Sentence. Constitutional Law,
Sentence. Due Process of Law, Sentence.
Indictments found and returned in the Superior Court
Department on July 21, 2011.
The cases were tried before Gary A. Nickerson, J.
James A. Reidy for the defendant.
Corey T. Mastin, Assistant District Attorney, for the
Commonwealth.
NEYMAN, J. In this case, we consider whether a probation
condition that the defendant, Jose A. Riz, not "minimize" his
criminal activity "during his sex abuse treatment . . . in his
contact with church authorities . . . [and] in dealing with
[his] probation officer" is unconstitutionally vague. We hold
that the condition does not provide reasonable guidance with
2
respect to what conduct is prohibited, and therefore violates
the due process clause of the Fifth and Fourteenth Amendments to
the United States Constitution. 1
Background. In 2010 and 2011, the defendant lived at his
brother's apartment, along with his brother and his brother's
oldest daughter (the victim, who was also the defendant's
niece). During this timeframe, the defendant had sexual contact
with the victim on multiple occasions, including vaginal, anal,
and oral sex. The victim was thirteen and fourteen years old at
the time, while the defendant was eighteen and nineteen years
old. The final instance of abuse occurred on May 8, 2011. That
night, the defendant, who had consumed alcohol and smoked
marijuana, pulled the victim into his room, undressed her, lay
on top of her, and touched her vagina with his penis. The
defendant's brother discovered the victim leaving the
defendant's room, and the victim subsequently told her mother of
her sexual relationship with the defendant. The defendant was
arrested, and, during an interview with the police, confessed to
having had sex with the victim on more than one occasion. The
defendant was indicted for statutory rape, G. L. c. 265, § 23;
incest, G. L. c. 272, § 17; and assault of a child under the age
1
The defendant does not challenge the condition under the
Massachusetts Declaration of Rights.
3
of sixteen with intent to commit rape, G. L. c. 265, § 24B. 2 At
his jury trial in the Superior Court, the defendant testified
that he was drunk on the night of May 8, denied having any
sexual contact with the victim, and claimed that his confession
was the product of his intoxication. The jury convicted the
defendant on all counts.
At sentencing, defense counsel told the judge, inter alia,
that the defendant was from Guatemala, had developed some
alcohol and marijuana problems, and had ongoing and strong
involvement with his church. She further advised that the
defendant had grown up in a different culture, and that "there
is a certain amount of early sexual activity that goes on in the
area of the world where he comes from. . . . That is what he
was familiar with." The judge was also informed that the
defendant had been rearrested, during the pendency of this case,
for an incident involving a prostitute. Finally, the judge
observed or otherwise gleaned that several of the victim's
family members had pressured the victim not to testify and had
glared at the victim during the sentencing proceedings.
The judge sentenced the defendant to concurrent prison
terms of not less than four nor more than seven years for the
statutory rape and incest convictions, and a concurrent sentence
2
The defendant does not challenge his convictions. His
appeal is limited only to the probation condition.
4
of ten years' probation for the conviction of assault of a child
under the age of sixteen with intent to commit rape. The terms
of probation contained various special conditions, including sex
offender counseling, no unsupervised contact with minor
children, and no employment or performance of volunteer
activities "that puts [the defendant] into contact with minor
children on a regular basis." The judge further ordered that
the defendant was "not to minimize [his] crimes during treatment
with church activities or with probation." The judge sought to
clarify this condition by stating:
"In other words, [the defendant is] not to minimize
his crimes involving [the victim] or his involvement with
the prostitute during his sex abuse treatment.
"He's also not to minimize his criminal activity in
his contact with church authorities -- I can't believe the
church would knowingly put him with children if they knew
the extent of his criminal involvement -- and he's not to
minimize his criminal involvement in dealing with the
probation officer."
The defendant now appeals, claiming that the probation condition
that he is "not to minimize his crimes" violates due process and
the First Amendment to the United States Constitution.
Discussion. Judges are permitted "great latitude" in
imposing conditions of probation. Commonwealth v. Power, 420
Mass. 410, 413 (1995), cert. denied, 516 U.S. 1042 (1996). As a
general rule, a condition of probation is enforceable, even if
it impacts a defendant's ability to exercise constitutionally
5
protected rights, so long as it is "reasonably related" to the
goals of sentencing and probation. Id. at 414-415. The
principal goals of probation are "rehabilitation of the
probationer and protection of the public." Commonwealth
v. Pike, 428 Mass. 393, 403 (1998), citing Power, supra at 417.
Other goals include punishment, deterrence, and
retribution. Ibid., citing Power, supra at 414. "These goals
are best served if the conditions of probation are tailored to
address the particular characteristics of the defendant and the
crime." Ibid.
In the present case, the judge took pains to fashion a
sentence that addressed the goals of public protection,
punishment, rehabilitation, and deterrence. Based on the nature
of the offenses, the representations at sentencing concerning
the claimed cultural differences regarding "early sexual
activity" that were ostensibly ingrained in the defendant, the
defendant's involvement with the prostitute during the pendency
of his case, and his connection with his church, the judge had
reason to impose special conditions to protect the public and to
foster the defendant's rehabilitation by underscoring the
seriousness of his crime. Having determined that the
defendant's sentence complied with the general goals of
sentencing and probation, we now consider whether the condition
at issue meets the specific requirements of due process.
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"Due process requires that a probationer receive fair
warning of conduct that may result in revocation of probation;
thus, probation conditions must provide reasonable guidance with
respect to what activities are prohibited." Commonwealth
v. Kendrick, 446 Mass. 72, 75 (2006), and cases cited. This
notice requirement can be satisfied by "an imprecise but
comprehensible normative standard so that [people] of common
intelligence will know its meaning." Ibid., quoting
from Commonwealth v. Orlando, 371 Mass. 732, 734 (1977).
See Power, supra at 421, quoting from Commonwealth v. Adams, 389
Mass. 265, 270 (1983) ("[I]f the language which is challenged
conveys sufficiently definite warning as to the proscribed
conduct when measured by common understanding and practices, it
is constitutionally adequate").
The defendant argues that neither he, nor his probation
officer, nor the court itself, has sufficient guidance as to
what acts or statements would constitute a violation of the
condition at issue. He contends that absent further definition
of the term "minimize," or clearly delineated examples of
violative and nonviolative statements, the condition is
impermissibly vague. The Commonwealth counters that the term
"minimize" is hardly a complex term. It maintains that the
plain meaning of the word clearly forecloses the defendant from
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denying or downplaying his culpability to those involved with
his rehabilitation.
Examining a realistic hypothetical quickly demonstrates the
difficulty with the condition. When pressed to define the scope
of the prohibited conduct, the Commonwealth suggested at oral
argument that the defendant still could make statements
consistent with the "truthful representation of the facts of
this case." However, it is entirely possible that even truthful
representations of the facts could be deemed to be prohibited by
the condition. For example, if the defendant were to state
truthfully that he had a drinking problem and was intoxicated at
the time of some of the incidents, that could well be perceived
as minimizing the severity of the crime, minimizing his intent,
or minimizing his relative culpability. Indeed, the reach of
the condition appears to have been designed to extend to
truthful circumstances that were not a defense to the crimes,
but which the defendant and his supporters may have considered
to be mitigating. At a minimum, the condition is equivocal.
"[P]robationers are entitled to reasonably specific conditions
that provide clear guidelines as to what and when their actions
or omissions will constitute a violation of their
probation." Commonwealth v. Lally, 55 Mass. App. Ct. 601, 603
(2002).
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We have no doubt that the well-intentioned sentencing judge
had the goals of public safety, punishment, and rehabilitation
in mind when structuring the defendant's sentence. The judge
may have also viewed our decision in Commonwealth v. Morales, 70
Mass. App. Ct. 839 (2007), as permitting such a condition. In
that case, our primary focus was on a residency condition, but
in passing, we stated generally that the conditions imposed by
the judge, including a similar "minimization" condition, "were
not unreasonable." Id. at 841, 844. Morales, however, did not
involve a constitutional due process challenge, and thus did not
address the issue presently before this court. Having now
reviewed the issue, we conclude that the special condition that
the defendant not "minimize [his] crimes during treatment with
church activities or with his probation officer" does not
provide reasonable guidance with respect to what conduct is
prohibited. Therefore, the condition violates the due process
clause of the Fifth and Fourteenth Amendments to the United
States Constitution. 3 Accordingly, we order that the special
condition of probation that the defendant not "minimize" his
crimes during sex abuse treatment, in contact with church
authorities, and in dealing with his probation officer be
vacated, and that the case be remanded to the Superior Court for
3
Where we resolve the case on the due process claim, we
need not address the challenge under the First Amendment.
9
consideration whether more clearly defined conditions of
probation should be imposed, in the sentencing judge's
discretion, in lieu of the one vacated. The judgments are
affirmed in all other respects.
So ordered.