Commonwealth v. Jowie Santiago. ( 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
22-P-615
COMMONWEALTH
vs.
JOWIE SANTIAGO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from a District Court judge's order
revoking his probation. On appeal, the defendant argues that
the judge's finding that he had violated the terms and
conditions of his probation was not supported by sufficient
evidence. We agree and reverse.
Background. On January 29, 2021, the defendant pleaded
guilty to malicious destruction of property, vandalizing
property, violation of an abuse prevention order, and malicious
damage to a motor vehicle. The plea judge imposed split
sentences of two years in a house of correction with six months
to serve and the balance suspended during an eighteen-month term
of probation. On April 8, 2022, the defendant signed an order
of probation conditions, which, among other things, required him
to "[r]eport to [his] probation officer at such times and places
as he or she requires," and to complete an "Intimate Partner
Abuse Education Program" (IPAEP).
On September 28, 2021, the defendant admitted to being in
violation of his probation for failing to complete the IPAEP,
and as a result, his probation was extended to March 29, 2023.
The same day, the defendant reported to probation and signed a
new order of conditions, which again required him to "[r]eport
to [his] probation officer at such times and places as he or she
requires," and to complete an IPAEP. On January 4, 2022, the
District Court issued a notice of probation violation and
hearing informing the defendant that he was in violation of the
conditions of his probation because he (1) had failed to attend
the IPAEP and (2) had not reported to his probation officer
since September 28, 2021. 1
At the probation violation hearing on March 3, 2022, the
defendant's probation officer testified that the defendant
"failed to report to [the treatment center] to complete the
intake" for the IPAEP and failed to report to probation "[e]very
two week[s] as he [was] directed by the standard of probation
1 The notice also indicated that the defendant "[d]efaulted the
court on 11/29/21," and "violated a criminal law." The
defendant's probation officer did not pursue either of these
theories at the defendant's probation violation hearing. At one
point during the probation officer's testimony, he expressly
acknowledged that probation was not alleging the defendant had
committed any new offenses.
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and the conditions of probation." The probation officer also
stated that he was not present on September 28, 2021, when the
defendant signed the new order of conditions, and that the
defendant had met with "someone else" from the probation office
on that day.
The hearing judge credited the probation officer's
testimony, finding that it was substantially reliable because it
was "based on personal knowledge and/or direct observation."
The judge found that the defendant had violated his probation
"both for failing to report to Probation since September 28,
2021, and also for failing to attend and complete the [IPAEP],"
and imposed the balance of the defendant's suspended sentences:
eighteen months in the house of correction.
Discussion. 1. Standard of review. "A determination
whether a violation of probation has occurred lies within the
discretion of the hearing judge." Commonwealth v. Bukin, 467
Mass. 516, 519-520 (2014). The Commonwealth must prove a
violation of probation by the preponderance of the evidence.
Commonwealth v. Nunez, 446 Mass. 54, 59 (2006). We review an
order revoking probation to determine "whether the record
discloses sufficient reliable evidence to warrant the findings
by the judge that [the defendant] had violated the specified
conditions of his probation." Commonwealth v. Morse, 50 Mass.
App. Ct. 582, 594 (2000).
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2. IPAEP. The defendant first challenges the hearing
judge's finding that he failed to attend and complete the IPAEP.
He argues that the only evidence of this alleged violation was
the probation officer's hearsay testimony that the defendant
"failed to report to [the treatment center] to complete the
intake" for the IPAEP, and that the hearing judge improperly
relied on this testimony because it lacked the requisite indicia
of reliability. The Commonwealth in fact concedes that there
was insufficient evidence to find that the defendant violated
his probation by failing to attend or complete the IPAEP.
Nevertheless, "[t]he Commonwealth's 'admission of error' does
not relieve us of our appellate function of determining whether
error was committed" (citation omitted). Commonwealth v.
McClary, 33 Mass. App. Ct. 678, 686 n.6 (1992).
Probation violation hearings are not subject to the strict
rules of evidence. Commonwealth v. Durling, 407 Mass. 108, 112
(1990). Even so, "[u]nsubstantiated and unreliable hearsay
cannot, consistent with due process, be the entire basis of a
probation revocation." Id. at 118. "[W]hen hearsay is offered
as the only evidence of the alleged violation, the indicia of
reliability must be substantial." Id. A judge evaluating the
reliability of hearsay evidence may consider, inter alia,
"whether the evidence is based on personal knowledge or direct
observation"; "the level of factual detail"; and "whether the
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evidence is corroborated by information from other sources."
Commonwealth v. Hartfield, 474 Mass. 474, 484 (2016). None of
these factors supports a finding of reliability for the hearsay
evidence at issue here.
The hearing judge's finding that the probation officer's
testimony was based on personal knowledge is unsupported by the
record. The probation officer failed to provide any details as
to when or from whom he learned of the defendant's purported
failure to attend an intake for the IPAEP, and no other evidence
was presented to corroborate this allegation. The probation
officer's testimony regarding the defendant's failure to attend
the IPAEP therefore lacked substantial indicia of reliability.
See Commonwealth v. Grant G., 96 Mass. App. Ct. 721, 726 (2019)
(hearsay lacked substantial indicia of reliability where "case
worker had no direct or indirect knowledge of any of the details
or circumstances of [probationer's] absence from the program");
Commonwealth v. Emmanuel E., 52 Mass. App. Ct. 451, 454 (2001)
(testimony "devoid of factual detail or corroborating personal
observations" insufficient to establish probation violation by
preponderance of evidence); Commonwealth v. Podoprigora, 48
Mass. App. Ct. 136, 139 (1999) ("oral testimony based on
uncorroborated hearsay is not sufficiently reliable for
probation revocation purposes"). For these reasons, there was
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insufficient evidence that the defendant violated the conditions
of his probation by failing to attend or complete the IPAEP.
3. Failure to report. The defendant next argues that
there was insufficient evidence of the defendant's knowledge of
any specific reporting intervals to support the hearing judge's
finding that he failed to report to probation as required. Due
process entitles probationers to clear guidance as to "when
their actions or omissions will constitute a violation of their
probation." Commonwealth v. Ruiz, 453 Mass. 474, 479 (2009),
quoting Commonwealth v. Lally, 55 Mass. App. Ct. 601, 603
(2002). A defendant "cannot be found in violation of
probationary conditions that might have been intended or would
have made sense, only of those that are unambiguous and of which
[they have] notice." Commonwealth v. King, 96 Mass. App. Ct.
703, 710 (2019). Thus, a finding a probationer is in violation
of a specific condition is dependent on the Commonwealth proving
the probationer had adequate notice of the condition.
Commonwealth v. Bunting, 458 Mass. 569, 573 (2010). "[T]he
interpretation of a probation condition and whether it affords a
probationer fair warning of the conduct proscribed thereby are
essentially matters of law." Commonwealth v. Hamilton, 95 Mass.
App. Ct. 782, 785 (2019), quoting United States v. Gallo, 20
F.3d 7, 11 (1st Cir. 1994), and any "ambiguities in probation
conditions are construed in favor of the defendant" (citation
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omitted). King, supra at 710-711. A finding of adequate notice
is of particular importance, where, as here, the alleged
violation stems from conduct that is noncriminal. See Ruiz,
supra at 479 n.7.
Here, the only evidence concerning the intervals at which
the defendant was required to meet with probation was the
probation officer's testimony that the defendant failed to
report to probation "[e]very two week[s] as he [was] directed by
the standard of probation and the conditions of probation."
However, the probation officer did not offer any explanation or
evidence to clarify his reference to the "standard of
probation," and the "conditions" of the defendant's probation
directed him only to meet with probation "at such times and
places" as his probation officer required. The absence of
evidence that the defendant received adequate notice that he was
required to report to probation every two weeks renders the
finding that he violated the reporting requirement inconsistent
with due process. See Hamilton, 95 Mass. App. Ct. at 789
(evidence of failure to report insufficient where testimony did
"not establish who . . . told the defendant that he had to
report, or whether he was even told to report" on particular
date); Commonwealth v. Ivers, 56 Mass. App. Ct. 444, 447 (2002)
(vacating order revoking probation based on defendant's failure
to report where "record contain[ed] nothing . . . about the
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intervals at which [the defendant] was to report to his
probation officer"). See also Commonwealth v. Maggio, 414 Mass.
193, 198 (1993) (due process requires evidence sufficient to
support "an independent finding, at least to a reasonable degree
of certainty," that defendant violated probation). Cf.
Commonwealth v. Grundman, 479 Mass. 204, 208 (2018) (judge's
"general statement" that defendant's sentence would be "subject
to the terms and conditions of the probation department"
insufficient to provide actual notice of monitoring condition).
The Commonwealth's contention that the defendant had an
implicit, affirmative duty to contact probation to inquire about
his reporting requirements is unpersuasive. Although
"[c]onditions of probation do not have to be cast in letters six
feet high, or to describe every possible permutation, or to
spell out every last, self-evident detail," Gallo, 20 F.3d at
12, a reasonable person would not have understood that the
requirement to meet with probation "at such time and places as
his or her probation officer requires" obligated the defendant
to take proactive steps to ascertain the times and places his
probation officer wanted to meet with him. See Commonwealth v.
Medeiros, 95 Mass. App. Ct. 132, 137 (2019) ("the language of
special probation conditions should be interpreted from the
perspective of a reasonable person who understands the
defendant's background"). See also Commonwealth v. Poirier, 458
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Mass. 1014, 1015 (2010) (condition requiring monitoring on
defendant's release did not impose "affirmative obligation" on
defendant to notify probation of his release or ensure device
available). Indeed, the phrase "as required" implies that the
responsibility for determining and communicating specific
reporting requirements rested with the defendant's probation
officer. Because the defendant was not required to contact
probation to determine when he was required to report, his
purported failure to do so was not a violation of the conditions
of his probation or evidence that he did not act in good faith.
Contrast Commonwealth v. Al Saud, 459 Mass. 221, 231 (2011)
(defendant failed to make good faith effort to comply with
condition requiring him to report to probation on release where
he agreed to be deported immediately following release and did
not "make any effort to contact [probation] and explain").
In essence, the Commonwealth suggests that it was the
defendant's responsibility to ascertain what was required of
him, and that if he failed to do so, he is at fault for his lack
of knowledge. This argument impermissibly shifts the burden of
proof from the Commonwealth, to prove adequate notice and a
willful violation, to the defendant, to demonstrate that he took
all necessary steps to ensure he was aware of and in compliance
with all that was required of him. Cf. Commonwealth v. Nolin,
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448 Mass. 207, 217 (2007) (shifting burden of proof to defendant
violates due process rights).
In view of these principles, a finding that the defendant's
probation conditions implicitly required him to ask probation
about his reporting requirements would violate the defendant's
due process by lessening the Commonwealth's burden of proof. 2
Conclusion. The order entered on March 3, 2022, finding
that the defendant violated his probation and imposing the
balance of his suspended sentences, is reversed. As the
defendant has fully served the balance of the sentences, a
remand for further proceedings is unnecessary. 3
So ordered.
By the Court (Milkey,
Walsh, & Smyth, JJ. 4),
Clerk
Entered: October 25, 2023.
2 Assuming, arguendo, that the defendant was in fact required to
ask probation about his reporting requirements, the record lacks
a sufficient basis on which to infer that he failed to do so
when he spoke with someone from the probation department and
signed the order of conditions on September 28, 2021.
3 In view of our decision, it is unnecessary to address the
parties' arguments regarding the exhibits that were excluded
from evidence.
4 The panelists are listed in order of seniority.
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