Commonwealth v. Arroyo , 70 Mass. App. Ct. 228 ( 2007 )

Berry, J.

The defendant appeals from an order of the Superior Court revoking his probation and committing him to serve a three- to five-year State prison term. The defendant argues that the judge (a) improperly based his decision to revoke probation on an alleged criminal offense that occurred after the probationary term had expired; (b) failed to provide a written statement outlining the reasons for revoking probation; and (c) improperly admitted hearsay statements as excited utterances at the revocation hearing.

Procedural history. On December 14, 1999, the defendant pleaded guilty to indictments charging armed carjacking and assault by means of a dangerous weapon. The defendant was sentenced to two years in the house of correction on the carjacking offense and, on the remaining offense, was placed on probation for four years, to commence from and after his incarceration on the carjacking charge. The probationary term was due to expire on April 4, 2005. The defendant signed a probation contract on December 16, 1999, which listed conditions including that he pay a monthly probation supervision fee; report every two weeks to his probation officer; obtain his GED; and obey local, State, and Federal laws.

In October of 2003, while he was still on probation, the defendant was given a “Notice of Surrender and Hearing(s) for Alleged Violation(s) of Probation.” Among the violations enumerated were the defendant’s failure to (1) report to his probation officer every two weeks; (2) pay the probation supervision fee; and (3) provide verification of a GED. The notice also listed new charges against him in the District Court for burglary, malicious destruction of property, assault and battery, threatening, and receiving stolen property. On February 24, 2004, the defendant was found in violation of the terms and conditions of his probation, and his probation was continued at the request of his probation officer, one William Mitchell, to its original termination date of April 4, 2005, with the same terms and conditions remaining in effect.

In October, 2004, while the defendant was still on probation, he was given a third “Notice of Surrender and Hearing(s) for Alleged Violation(s) of Probation,” dated September 30, 2004.¹ The notice alleged an unspecified new offense charged in the District Court² and the failures to pay the probation supervision fee and to verify address and income monthly. An amended notice was given to the defendant in January, 2005, which listed new offenses that he allegedly committed on December 18, 2004, as set forth in a District Court complaint dated December 30, 2004, charging armed robbery, assault and battery by means of a dangerous weapon, assault and battery by means of a dangerous weapon on a person over the age of sixty-five, malicious destruction of property, and two counts of reckless operation of a motor vehicle.³ The amended notice also added that the defendant had failed to report to probation as ordered. In June, 2005, the notice was again amended to include a new charge, of assault and battery committed on May 12, 2005, set forth in a District Court complaint dated the next day.

Revocation hearing. On July 12, 2005, after several continuances, the probation revocation hearing which is the subject of this appeal was held in the Superior Court to address the violations set forth in the September, 2004, notice, and the amended notices given to the defendant in January, 2005, and June, 2005.

The defendant’s probation officer, William Mitchell, testified. Mitchell stated that on March 15, 2005, he sent a letter to the defendant, a copy of which was admitted in evidence. According to Mitchell’s testimony, the letter outlined the defendant’s failures to meet his payment obligations with respect to his probation supervision fee and to provide verification of his GED. As of March, 2005, the defendant owed $385 in supervision fees and an additional $150 in independent counsel fees. Mitchell testified that after the letter was sent, the defendant missed several reporting appointments.

At the hearing, the defendant’s former girlfriend, Chdaydie O’Otero, and another witness, Javier Colon, testified to events that purportedly formed the basis for the December, 2004, complaint.

Officer Goff of the Boston police department testified with respect to the May 12, 2005, offense. On that date, he responded to a radio call to proceed to the defendant’s home and found O’Otero there, crying and upset. She told Goff that the defendant had tried to block her from leaving, pushed her, and choked her. Goff noticed red marks on her neck and a scratch on her wrist. O’Otero testified that she had lied to the police and that the defendant did not assault her.

At the conclusion of the hearing, the Superior Court judge issued his findings and rulings orally from the bench. The judge found that the defendant failed to complete his GED, “to report on a periodic] basis, as directed by the probation officer,” and to pay the $385 supervision fee that had accrued. The judge did not credit the evidence related to the new offenses that allegedly occurred in December, 2004, and he did not consider that evidence in reaching his decision. The judge did, however, credit Goff’s testimony regarding the offense committed against O’Otero on May 12, 2005.

In imposing the State prison sentence of a three- to five-year term, the judge placed emphasis on the length of the defendant’s history in the criminal justice system. The judge also took account of the fact that this was the defendant’s second probation revocation hearing, the defendant having already been found in violation of his probation on a previous occasion. The judge was particularly concerned with the probation officer’s evidence that depicted a probationer who had failed to comply “with relatively easy terms of probation.” The judge pointed to “[t]he fact that [the defendant] would willfully ignore [his] obligation to report, [his] obligation to pay fees, and that while on probation, [the defendant] would . . . assault another person.”

1. Offense outside the probationary term. On appeal, the defendant claims that the judge should not have considered the May 12, 2005, offense because it occurred more than a month beyond the original probation period, which expired on April 4, 2005. The defendant did not object at the revocation hearing to consideration of the May 12 offense on this ground, and arguably has waived the point. See Commonwealth v. Morse, 50 Mass. App. Ct. 582, 589 (2000). Even if the claim has not been waived, the claim is unpersuasive for the reasons that follow.

It is well established that a defendant’s probation cannot be revoked for a violation that took place after the expiration of its term. See Commonwealth v. Sawicki, 369 Mass. 377, 384-385 (1975); Commonwealth v. Aquino, 445 Mass. 446, 449 (2005). Here, the parties both properly agree that the May 12 offense occurred beyond the term of the defendant’s probation, and that the judge should not have considered this offense in revoking the defendant’s probation.

Relying on Commonwealth v. Aquino, supra, the defendant argues that this error requires that we vacate the order revoking probation and imposing the State prison sentence. The Aquino case bears points of similarity to this case in that, in both cases, the judge’s revocation of probation cited not only a defendant’s failures to comply with the conditions of probation, but also cited criminal offenses occurring beyond the probationary period. Id. at 447-448. However, there is a central and, we think, controlling distinction between Aquino and the case at bar. The Aquino judge made clear that she “would not have imposed a State prison sentence if the only infractions had been the so-called ‘technical’ violations.”⁴ Id. at 448. Given this explicit reservation by the judge in Aquino, the Supreme Judicial Court remanded the Aquino case because the court could not determine “what action the judge would have taken had she found the defendant in violation of probation based on the [‘technical’] violations committed during the original period of probation,” that is, had the new postprobation offenses not also been considered. Id. at 450-451. It was this uncertainty as to how the judge would have sentenced the defendant that prompted the Supreme Judicial Court to remand the case for clarification.

We do not see in this case the kind of uncertainty of sentencing disposition that marked the Aquino probation revocation. In contrast to the Aquino judge, in this case the judge made clear that in imposing the State prison sentence, he was giving substantial weight to the defendant’s violations of his probation conditions, including, as catalogued by the judge, the defendant’s failure to report to the probation department as required, his failure to pay fees, and his failure to obtain a GED. Further, in contrast to the Aquino judge, who had expressly stated that the “technical” probation condition violations may not have yielded the sentence imposed, the judge here did not deem the violations to be merely technical. Rather, the judge considered the violations to be serious and repeated acts of noncompliance by the defendant notwithstanding “relatively easy terms of probation.” Indeed, the judge cited the defendant’s repeated violations of the conditions of probation as demonstrating that the defendant was no longer a suitable candidate for probation. See Rubera v. Commonwealth, 371 Mass. 177, 180-181 (1976) (“Any conduct by a person on probation which constitutes a violation of any of the conditions of his probation may form the basis for the revocation of that probation”). See also Commonwealth v. Hector H., 69 Mass. App. Ct. 43, 48 n.3 (2007).

Furthermore, in his sentencing remarks, the judge cited the defendant’s long-standing criminal history and noted that this was the defendant’s second probation violation. As the judge stated in imposing the prison sentence, the defendant had “received an enormous break, when [he was] first sentenced in this court . . . [b]ut, things have changed since 1999 to the present, and probation is an opportunity to prove that, in fact, you can be responsible and productive.” The judge found that the defendant had “failed in both of those regards.” See Commonwealth v. Durling, 407 Mass. 108, 116 (1990) (“The Commonwealth has an interest in imposing effective punishment on a convicted criminal when rehabilitation is not possible”).

In sum, from the full context of the judge’s findings concerning the probation revocation, and the imposition of the three- to five-year State prison sentence, we are convinced that in this case, unlike in Aquino, even absent the error in consideration of, and reference to, the May 12, 2005, offense, the revocation and sentencing disposition would remain unchanged. Thus, we see no reason for a remand.

2. Written findings. The defendant’s argument that his due process rights were infringed by the judge’s failure to issue written findings is without merit where the judge articulated the reasons for his decision orally from the bench and those reasons appear in the transcript of the revocation hearing. See Commonwealth v. Morse, 50 Mass. App. Ct. at 592-593.⁵

Order revoking probation and imposing sentence affirmed.

1 Apparently, the defendant had been given a second “Notice of Surrender and Hearing(s) for Alleged Violation(s) of Probation" in July, 2004, but that notice was withdrawn on August 6, 2004, at the request of the probation officer.

2 In its brief, the Commonwealth suggests that the charge was operating a motor vehicle after license suspension. In any event, no evidence as to the offense alleged in the September 30 notice was introduced at the revocation hearing, and the judge made no mention of it in his findings.

3 The notice also reflected two other new offenses, trespassing and operating a motor vehicle after license suspension. On the day of the hearing, these offenses were withdrawn as a basis for the violation.

4 To describe a violation of a condition of probation as a technicality is a misnomer. Conditions of probation are set by the court — and whether the condition is the payment of fees or the obtaining of a GED, it is an order to be complied with to retain the benefit of probation rather than be incarcerated.

5 Because we conclude that the May 12 incident should not have been considered by the judge, we pretermit any question related to the evidentiary challenges the defendant raises concerning the admission of excited utterance evidence on that charge at the revocation hearing.