COMMONWEALTH v. ZAHIR Z., a Juvenile. ( 2023 )

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
20-P-15
COMMONWEALTH
vs.
ZAHIR Z.,1 a juvenile.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The juvenile appeals from a judge's order revoking his
probation, arguing that the original imposition of drug
screening as a condition of probation was improper and that
there was insufficient evidence that he committed the three
violations found. We affirm.
Background. In November 2018, in connection with two
complaints, the juvenile pleaded delinquent to charges of
disturbing the peace, minor in possession of a BB gun, and
assault and battery. The judge sentenced the juvenile to one
year of probation on both dockets, and imposed the following
special conditions of probation: abstain from alcohol, drugs,
and marijuana and submit to random testing; comply with his
1 A pseudonym.
mental health evaluation and treatment plan as prescribed; have
no avoidable contact with and stay away from the victim and
codefendant from the assault and battery case; have no gang
involvement; possess no weapons; take medication as prescribed;
work with providers; and engage in a local youth group.
Within weeks of starting probation, the juvenile missed two
appointments with his probation officer on December 13, 2018,
and December 27, 2018. He subsequently made up those
appointments, attending one meeting with his mother and the
other with his social worker. He also failed a drug test for
marijuana on December 17, 2018. On January 18, 2019, probation
issued a probation violation notice for: failing to appear as
required to his probation officer for the two missed meetings;
the failed drug screen; and "gang involvement/signs" on November
28, 2018, and December 14, 2018. For the next three weeks, the
juvenile made no contact with his probation officer. On
February 8, 2019, probation issued a second notice of probation
violation, which outlined the same violations as the first, as
well as his whereabouts being unknown since January 18, 2019.
After a hearing on February 26, 2019, the judge found the
juvenile in violation based on the missed probation visits, the
juvenile's whereabouts being unknown, and the positive drug
screen for marijuana. Although the judge found the juvenile in
violation of probation for a positive marijuana urine test, she
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stated that the "bigger concerns and issues are the fact that
[the juvenile] was not meeting with his [p]robation [o]fficer,
and that he went whereabouts unknown for three weeks." As for
the failed drug test, the judge stated, "So, let me just make
clear, I'm going to take the [failed drug] test, but that is not
what I'm basing the violation on" and "to me this is collateral
information." The judge revoked the juvenile's probation and
sentenced him to the custody of the Department of Youth Services
(DYS) to age eighteen.
Discussion. "A probation revocation hearing involves a
two-stage process, in which a judge first determines whether a
probationer violated a condition of probation and then, if so,
decides whether the violation warrants revocation."
Commonwealth v. Joyner, 467 Mass. 176, 189-190 (2014). "The
standard of proof in a probation revocation proceeding is the
civil standard of preponderance of the evidence." Commonwealth
v. Hill, 52 Mass. App. Ct. 147, 154 (2001). We review to
determine "whether the record discloses sufficient reliable
evidence to warrant the findings by the judge that [the
probationer] had violated the specified conditions of his
probation." Commonwealth v. Morse, 50 Mass. App. Ct. 582, 594
(2000).
"If the judge determines that the defendant is in
violation, . . . [h]ow best to deal with the probationer is
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within the judge's discretion." Commonwealth v. Durling, 407
Mass. 108, 111 (1990). "[A] judge's discretionary decision
constitutes an abuse of discretion where we conclude the judge
made a clear error of judgment in weighing the factors relevant
to the decision . . . such that the decision falls outside the
range of reasonable alternatives." L.L. v. Commonwealth, 470
Mass. 169, 185 n.27 (2014) (quotation omitted).
1. Missed probation meetings. It is uncontested that less
than a month after being placed on probation, the juvenile
missed two scheduled meetings with his probation officer with no
contemporaneous communications explaining his absence. On
appeal, the juvenile argues that the judge erred because the
violation was not willful. He claims that because he made up
the meetings promptly, he therefore acted in good faith, and did
not violate the condition of his probation. We disagree.
"A defendant can be found in violation of a probationary
condition only where the violation was [willful]." Commonwealth
v. Henry, 475 Mass. 117, 121 (2016). When confronted with a
probation violation, a juvenile is entitled to show "that there
was a justifiable excuse for any violation or that revocation is
not the appropriate disposition." Black v. Romano, 471 U.S.
606, 612 (1985). Cf. Commonwealth v. Canadyan, 458 Mass. 574,
578-579 (2010) (holding that defendant did not commit willful
violation of probation for failing to wear operable global
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positioning system [GPS] monitoring device because evidence
conclusively established that defendant was homeless and that
homeless shelter he was staying at could not accommodate
technological requirements of GPS equipment).
It was uncontested that the juvenile was aware of his
obligations to meet with the probation officer and that he
missed the appointments. The probation officer testified that
the juvenile made "no communication of why he missed [them]."
Nor did he make any argument that it would have been impossible
for him to meet the condition. There was sufficient evidence to
hold that the juvenile violated the condition of his probation.
See Commonwealth v. Al Saud, 459 Mass. 221, 231 (2011)
(affirming revocation of probation where "nothing in the record
suggests that the defendant made any effort to contact the
department and explain his situation, even by telephone, . . .
[n]or did he ask his counsel to contact the department on his
behalf").
2. Whereabouts unknown. The juvenile argues that there
was insufficient evidence to support a finding that his
whereabouts were unknown. He claims that there were no specific
details about the probation officer's attempts to contact the
juvenile or an explanation as to what specific condition of the
probation that he violated. We disagree.
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The juvenile was served a violation notice and notice of
probation detention hearing instructing him to appear on January
18, 2019. Yet, the juvenile made no contact with probation or
the court until he was picked up on February 8, 2019. The
juvenile's counsel conceded that the juvenile "abscond[ed] for
three weeks." Ample evidence supported the judge's finding that
the juvenile's whereabouts were unknown.
3. Failed drug screening. In addition to the two
probation violations, discussed supra, that we determine were
established and justified revoking the juvenile's probation, the
judge also noted a third: the defendant's failed drug test. On
appeal, the juvenile argues that the drug test should not have
been imposed as a condition of probation, and that the drug
screening test was unreliable. We need not reach this issue
because the judge made clear that she did not base her violation
finding on the failed drug screen, that she considered such
"collateral information" to be outside "what [she was] focused
on." See Commonwealth v. Rainey, 491 Mass. 632, 648-649 (2023)
("[s]eeing no reason to doubt the judge's statement that the GPS
violations did not 'drive the result,'" there was no reason to
vacate revocation order on this ground). Furthermore, the
juvenile is now over the age of eighteen and has finished
serving his sentence. Even if we were to agree with the
defendant's arguments as to the drug screening, "no purpose
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could be served by remanding the matter for resentencing,
because no effective relief could be granted." Commonwealth v.
Padua, 479 Mass. 1004, 1005 (2018).
Order revoking probation
affirmed.
By the Court (Milkey, Henry &
Shin, JJ.2),
Clerk
Entered: May 11, 2023.
2 The panelists are listed in order of seniority.
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