COMMONWEALTH v. WELLS (2022)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Sander D. Wells, appeals from an October 1, 2020 finding that he violated one condition of his probation, and a disposition dated March 19, 2021, finding an additional violation and reprobating the defendant. We affirm the March 19, 2021, order.² ,³

The defendant was released from custody in April of 2020, in the early days of the COVID-19 pandemic, after serving a period of incarceration following a plea of guilty to three counts of threatening to commit a crime and three counts of witness intimidation. Among other things, his conditions of probation required that he complete a six-month in-patient mental health treatment program. Upon release, Wells was taken by the sheriff's department to a hospital and discharged the same day. He was not referred to a treatment program and was told at some point that his reentry plan was “the train station.” According to his testimony at the revocation hearing, he and his lawyer had attempted and failed to find a six-month residential program.⁴ Once released to the street, he attempted suicide by obtaining a large quantity of heroin, overdosed, and was hospitalized. He was subsequently taken into custody.

On October 1, 2020, a judge of the Superior Court found that the defendant had violated his probation by failing to attend and complete a six-month inpatient mental health program.⁵ However, the judge also observed, “I do get the sense that this man was just tossed in the street.” The judge continued the case for disposition, including exploration of available inpatient mental health treatment, and entered a commitment order pursuant to G. L. c. 123, § 15 (e) to permit an evaluation in aid of sentencing.

“A defendant can be found in violation of a probationary condition only where the violation was wilful.” Commonwealth v. Henry, 475 Mass. 117, 121 (2016). The defendant was, in essence, released to the street, and while the choices he made there may not be consistent with the requirement that he seek in-patient mental health treatment, we cannot say he willfully violated this condition where there was no evidence of any program that would take him. See Commonwealth v. Holmgren, 421 Mass. 224, 226 (1995) (Commonwealth bears burden of proving that probationer violated terms and conditions of his probation). The judge's finding of a violation on October 1, 2020, resulted in the defendant's evaluation and treatment, and he was ultimately reprobated, but we must conclude that the violation finding itself was in error.

However, the hearing was continued to consider disposition. See generally Commonwealth v. Pena, 462 Mass. 183, 187 (2012) (probation violation proceedings involve a two-step process). In the meantime, an amended notice was issued, and the docket reveals that the probationer was found in violation of a different condition. He was then reprobated with additional conditions, including attending and completing a newly available treatment program. The defendant has not challenged the additional violation on appeal, and the additional violation provides a basis for the judge's order of March 19, 2022.⁶ Because the defendant was reprobated in the wake of an additional violation on conditions more favorable than the previous ones (in the sense that he has now been placed in an available program), we are confident that the judge would have entered the same disposition based on the second violation alone. See Commonwealth v. Vargas, 475 Mass. 86, 97 (2016). Contrast Commonwealth v. Aquino, 445 Mass. 446, 450–51 (2005).

Thus, although we conclude that the finding of a violation made on October 1, 2020, was in error, the final disposition of March 19, 2021, was supported by an additional violation. Accordingly, the order of March 19, 2021, finding a violation of probation and reprobating the defendant, is affirmed.

So ordered.

affirmed

FOOTNOTES

2.   The appeal must be taken from the judgment, that is the disposition that flows from the violation. See Commonwealth v. Al Saud, 459 Mass. 221, 225-226 (2011); Commonwealth v. Christian, 429 Mass. 1022, 1023 (1999). Accordingly, the October 1, 2020 order was subsumed in the March 19, 2021 disposition.

3.   The Commonwealth was granted numerous continuances to file a brief in this court but did not file one.

4.   Motion counsel referred to a letter that was provided to the judge at an earlier hearing detailing the lack of available facilities. That letter was not included in the record on appeal and we therefore do not consider representations made concerning it. “It is the duty of the parties to provide ‘any parts of the record relied upon in the brief.’ ” Cavanagh v Cavanagh, 490 Mass. 398, 404 (2022), quoting Mass. R. A. P. 18 (a) (1) (A) (v) (a), as appearing in 481 Mass. 1637 (2019). See Chokel v. Genzyme Corp., 449 Mass. 272, 279 (2007) (“When a party fails to include a document in the record appendix, an appellate court is not required to look beyond that appendix to consider the missing document”).

5.   The judge rejected several other grounds offered by the probation officer contained in the violation notice.

6.   Although the defendant appealed from the March 19, 2020 order, he did not argue the propriety of the second violation on appeal.