Commonwealth v. Jason W. Gentry. ( 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-441
COMMONWEALTH
vs.
JASON W. GENTRY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from a Superior Court judge's order
finding him in violation of probation and revoking probation.
The defendant argues that (1) the judge erred in relying on
unreliable hearsay and insufficient evidence and (2) his
probation conditions were unconstitutionally vague. We affirm.
Background. The defendant pleaded guilty to eight 1 counts
of cruelty to animals (G. L. c. 272, § 77) and one count of
unlicensed operation of a kennel (G. L. c. 140, § 137A). On
August 29, 2018, he was sentenced to two and one-half years in
the house of correction, suspended for three years with
probation. Among the conditions of his probation were that he
1 The defendant initially pleaded guilty to twelve counts of
animal cruelty but later withdrew his guilty pleas as to four
counts. The Commonwealth filed nolle prosequis as to those four
counts.
was required to "notify the probation officer immediately of a
change of residence or employment," and he could not "have
possession, custody, control, own or reside with any animals"
except for four dogs, each identified by breed, named
"Sabooboo," "Roman," "Rex," and "Fade."
Based on the evidence presented at the final surrender
hearing on October 15, 2021, the judge could have found as
follows. The defendant notified probation that his primary
residence was at an address in Swampscott and that he stayed
"from time to time" at an address in Lynn. In June of 2021, his
probation officer learned from police reports that the defendant
often stayed at his girlfriend's home in Peabody. After reading
these reports, the probation officer had concerns that the
defendant was living at the Peabody address without having
notified probation. That month, the probation officer visited
the Peabody address "on four straight days at different times of
the day." On each occasion, the defendant's car was there.
During an interview on June 30, 2021, the probation officer
informed the defendant of the results of his investigation. The
defendant then admitted that he was living at three addresses:
the addresses in Swampscott and Lynn, as well as the address in
Peabody of which he had not previously notified probation. The
probation officer and the defendant went directly from the
probation office to each of the three addresses.
2
At the Swampscott address, which the defendant had notified
probation was his primary residence, the defendant brought the
probation officer to what he said was his bedroom. There was
very little clothing in the closet and no toiletries that would
be present if someone were living there. There were no dogs at
the Swampscott address.
At the Lynn address, there was a dog cage in the yard; in
the kitchen was another dog cage, containing a dog that appeared
to be one of the dogs with which the defendant's probation
conditions permitted him to reside. As the defendant escorted
the probation officer down a hallway, another resident opened a
door and the probation officer saw inside that room a cage
containing a "very unhappy, unpleasant pitbull" that was not one
of the dogs with which the defendant was permitted to reside.
The defendant's bedroom at that address contained an unmade bed
and shoes, clothing, and toiletries, corroborating his statement
that he stayed there.
At the Peabody address, on the back patio were two dogs
that the defendant said belonged to his girlfriend. The
defendant escorted the probation officer to a bedroom that the
defendant said was his, in which there was a dog crate
containing a dog that was "very aggressive and upset." The
defendant referred to it as a "police dog"; it was not the same
breed as any of the dogs with which the defendant's probation
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conditions permitted him to reside. In the bedroom were
personal belongings including clothing and sneakers that
corroborated the defendant's statement that he lived there.
The judge concluded that the Commonwealth had "satisfied
its burden of proving more likely than not that there was both a
violation of the general condition" that the defendant notify
probation about changes in his residence and "of the special
condition that he not reside with any animals" except the four
specifically-permitted dogs. She found the defendant in
violation of the terms of his probation and revoked his
probation, sentencing him to eighteen months in the house of
correction on one count of animal cruelty. On the other counts,
she imposed a sentence, to run from and after the committed
term, of two and one-half years in the house of correction,
suspended for two years with two years of probation.
Discussion. We review to determine whether the judge
abused her discretion in finding, by a preponderance of the
evidence, that the defendant violated his probation conditions
and in revoking his probation. See Commonwealth v. Eldred, 480
Mass. 90, 101 (2018). The question is "whether the record
discloses sufficient reliable evidence to warrant the findings
by the judge." Commonwealth v. Jarrett, 491 Mass. 437, 440
(2023), quoting Commonwealth v. Morse, 50 Mass. App. Ct. 582,
594 (2000).
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The defendant argues that the evidence was not sufficient
to show that he violated the terms of his probation, and that
the judge erred in relying on unreliable hearsay. The judge
heard uncontradicted testimony of the probation officer that,
until the probation officer confronted the defendant with the
results of the investigation, the defendant did not notify
probation that he was living at the Peabody address, and that at
both the Lynn and Peabody addresses the defendant was residing
with dogs not permitted by his probation conditions. That
provided sufficient nonhearsay evidence on which the judge could
base her finding that the defendant "more likely than not
violated the conditions of his probation." We defer to the
judge's assessment of the credibility of the probation officer's
testimony. See Commonwealth v. Tate, 490 Mass. 501, 505 (2022).
The defendant also argues that the terms of his probation
were unconstitutionally vague. Those conditions included that
he was required to notify probation of a change in his
"residence" and prohibited him from "resid[ing] with any
animals" other than the four dogs specified by name and breed.
Due process requires a probation condition to "provide
'reasonable guidance' as to the conduct prohibited so that
people of 'common intelligence' will understand its meaning"
(citation omitted). Commonwealth v. Ruiz, 453 Mass. 474, 479
(2009). The defendant's probation conditions did provide such
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reasonable guidance, and he admitted to his probation officer
that he had a bedroom at an address of which he had not notified
probation.
Probation order dated October
15, 2021, affirmed.
By the Court (Henry, Grant &
Brennan, JJ. 2),
Clerk
Entered: October 11, 2023.
2 The panelists are listed in order of seniority.
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