DocketNumber: 17-P-1285
Citation Numbers: 113 N.E.3d 936
Filed Date: 11/28/2018
Status: Precedential
Modified Date: 7/24/2022
The defendant, Joshua L. Desmond, pleaded guilty in the District Court to one count of assault by means of a dangerous weapon, in violation of G. L. c. 265, § 15B (b ), and one count of assault and battery, in violation of G. L. c. 265, § 13A (a ). The sentencing judge sentenced the defendant to thirty-five days time served while held awaiting trial in the house of correction for the assault by means of a dangerous weapon charge, and one year of administrative probation on the assault and battery charge. The conditions of probation required the defendant to remain drug and alcohol free. Following a probation violation hearing on March 21, 2016, the sentencing judge found that the defendant violated the conditions of his probation, and sentenced him to one year in the house of correction, suspended for one year. On March 1, 2017, the defendant was found in violation of probation by a different judge (hereinafter, judge) and sentenced to serve one year in jail. The defendant filed a motion to revise and revoke his sentence, which the judge denied after hearing. The defendant now appeals the judge's decision to revoke his probation, arguing that the judge deprived him of his due process rights by relying on alleged misconduct not set forth in the written notice of probation violation, and that he was prejudiced by this lack of written notice. We affirm.
Standard of review. The Commonwealth must prove any "violation of probation by a preponderance of the evidence." Commonwealth v. Bukin,
Discussion. Although a probation revocation hearing is not a "new criminal prosecution" because the Commonwealth has already proven guilt beyond a reasonable doubt for the underlying offense, such a hearing still "implicates due process rights because a finding of a probation violation may result in a loss of liberty." Commonwealth v. Pena,
These due process requirements, however, are designed to be flexible, and to help ensure, inter alia, that the judge "accurate[ly]" determines "whether revocation [is] proper" in the defendant's situation. Morse,
Here, the defendant had either written or actual notice of the bases for his probation violations. The October 14, 2016, notice of probation violation and hearing specified that the defendant failed (1) "to comply with a drug testing requirement" by missing a drug test on October 6, 2016, (2) "to make a required [fee] payment," (3) to report to the probation office for a visit on September 27, 2016, (4) to provide adequate proof of employment and residency, and (5) to remain drug and alcohol free, citing positive drug and alcohol tests on September 21 and September 28, 2016. The defendant stipulated to the two positive drug and alcohol screens, and his counsel stated her understanding that the judge would find a violation as a result of that stipulation. The judge made a finding, both from the bench at the revocation hearing, and in his written probation violation findings and disposition, that the positive screens were bases for the probation violation.
The defendant contends that the "actual bases" for the judge's probation violation finding were his failure to appear at a previously scheduled October 28, 2016, revocation hearing, and his numerous failures thereafter to report to probation, and argues that he had no written notice that the judge would consider those issues at the violation hearing.
Moreover, defendants who challenge probation revocation orders on due process grounds must demonstrate that a lack of notice prejudiced them in some way, or "contributed to the adverse outcome[s]" of their cases. Morse,
Here, the fact that the probation violation notice failed to list the defendant's missed October 28 revocation hearing, as well as his numerous missed probation meetings thereafter, did not prejudice his defense because he stipulated to violations (two positive drug and alcohol screens
Conclusion. For the reasons stated above, we affirm the judge's order revoking the defendant's probation.
So ordered.
Affirmed.
At the probation revocation hearing, the defendant's counsel specifically stated: "We have been willing to stipulate with regard to the violations for the positive screens that took place ... on September 21 and September 28th." The judge explicitly noted, "Failure to remain drug and alcohol free. There you go, that's all I need. All right. Failed to report.... Failed to comply with testing requirements."
The judge stated that he would "consider the fact that [the defendant] blew out of probation October 28th and was never back again," and suggested that that conduct was a probation violation. Although the defendant contends that the judge could not consider this misconduct because it was not listed on the probation violation notice, the judge was entitled to consider "reliable evidence of misconduct," such as the probation officer's testimony that the defendant defaulted on a probation hearing on October 28, and failed to attend probation meetings thereafter. See Herrera,
The judge found, from the bench, that he did not credit the defendant's statements regarding his reasons for missing the October 28 court date.
The defendant suggests that "the continued use of substances by a person suffering from a substance use disorder is not a willful violation of probation." A judge, however, may require a defendant to remain drug-free as a condition of probation if that condition, "tailored to the characteristics of the defendant and the underlying crime," "further[s] the rehabilitative goal of probation by facilitating treatment for the defendant's drug addiction." Commonwealth v. Eldred,
The defendant's probation revocation hearing occurred on March 1, 2017, while the hearing on his motion to revise and revoke his sentence occurred on May 19, 2017.
To the extent that we do not address the defendant's other contentions, "they 'have not been overlooked. We find nothing in them that requires discussion.' " Department of Revenue v. Ryan R.,