COMMONWEALTH v. VELASQUEZ (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

On January 30, 1991, the defendant ³ pleaded guilty in Chelsea District Court to possession of heroin with intent to distribute and conspiracy to violate the controlled substances act. He was sentenced to concurrent terms of two and one-half years to be served in the house of correction. The sentences were suspended for one year and the defendant was placed on probation.

On June 14, 1991, the defendant was arrested on new charges of possession of a Class A controlled substance with intent to distribute, and doing so in a school zone. He was served with a notice of surrender for an alleged violation of probation based on the new criminal charges. That notice advised the defendant to appear in court for a hearing on June 27, 1991. The hearing was continued to October 4, 1991, at which time the defendant failed to appear. Thereafter, the defendant remained in default for twenty-six years.

On July 26, 2017, the defendant was transported to the Chelsea District Court from the Bristol County House of Correction where he was in custody under the name Luis Sanchez. He appeared on the probation matter before a judge other than the sentencing judge and was served with a new notice of probation violation which added the defendant's default on October 4, 1991, as a basis for revocation. After an evidentiary hearing on September 28, 2017, the defendant was found in violation of the terms and conditions of his probation based upon his failure to appear on October 4, 1991. He was sentenced to two years to be served in the house of correction.

On appeal the defendant claims the judged erred in revoking his probation because (1) there was insufficient evidence of the defendant's identity, (2) there was insufficient notice that a failure to appear at a probation violation hearing was itself a violation of probation, and (3) revocation twenty-six years after the alleged violation violated the defendant's right to due process. Because we agree that the evidence of the defendant's identity was insufficient, we vacate the order revoking the defendant's probation.

Discussion. A probation revocation hearing is not part of a criminal prosecution and a probationer is not entitled to the “full panoply of constitutional protections applicable at a criminal trial.” Commonwealth v. Durling, 407 Mass. 108, 112 (1990). The probation officer has the burden of proving the alleged violation by a preponderance of the evidence and hearsay is admissible. Rule 6(c) of the District/Municipal Court Rules for Probation Violation Proceedings. See Commonwealth v. Holmgren, 421 Mass. 224, 226 (1995). The probation officer must prove that the defendant before the court is the same person who appeared in the prior proceeding. See Commonwealth v. Koney, 421 Mass. 295, 302 (1995). We review the revocation of probation to determine whether the defendant “received his minimal due process rights ․ 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; and whether the basic due process goals, of providing ‘fair treatment’ to the probationer and an accurate basis for determining whether revocation was proper, were achieved.” Commonwealth v. Morse, 50 Mass. App. Ct. 582, 594 (2000).

The defendant's identity is rarely a contested issue in probation revocation proceedings. Here, however, it was. Prior to his surrender, the defendant was in custody in a different county under a different name. The probation officer who presented the evidence at the revocation hearing had never met the defendant and was unable to identify him. When pressed on cross-examination regarding proof of the defendant's identity, the probation officer offered no photograph, physical description, fingerprints, or other biographical information to identify the defendant as the same Rafael ⁴ Velasquez who was placed on probation over twenty-six years earlier. The probation officer's information regarding the defendant's identity was limited to “[o]nly what's on his CORI.” ⁵

The Commonwealth contends that the judge took judicial notice of the content of the defendant's criminal history records, specifically his CORI and Triple I reports.⁶ According to the Commonwealth, the biographical information in the Triple I, which defense counsel referred to as the defendant's record, and the biographical information in the CORI, were sufficiently similar to establish the defendant's identity by a preponderance of the evidence. While a judge may take judicial notice of adjudicative facts in probation revocation proceedings whether or not he is asked to do so, see Mass. G. Evid. § 201(c) (2018), nothing in the record supports a conclusion that the judge did so here. There were only three exhibits admitted at the hearing -- the original violation notice, the amended violation notice, and the probation conditions. When the judge asked the probation officer if there was anything else he was being asked to consider, the probation officer offered nothing. During the hearing, the judge noted that the defendant's CORI was not part of the record and specifically asked if it should be an exhibit. In response, neither party offered the defendant's CORI in evidence and neither party asked the judge to take judicial notice of its contents. Similarly, the defendant's Triple I report was referred to by defense counsel during cross-examination, but was never offered in evidence. Nothing in the record suggests that the judge ever reviewed the Triple I report. For these reasons, we cannot conclude that the judge took judicial notice of the defendant's criminal history reports, or that he considered them in any way.

In a contested probation revocation proceeding, as a matter of rule, “the court shall make written findings of fact to support a finding of violation, stating the evidence upon which the court relied.” Rule 8(c) of the District/Municipal Court Rules for Probation Violation Proceedings. Here, the judge made no findings, stating only “I find him in violation based on [his default on October 4, 1991].” While the absence of findings is not fatal if the evidentiary basis for the revocation is otherwise clear, Morse, 50 Mass. App. Ct. at 593, here it was not. The record evidence of the defendant's identity was insufficient.⁷

Order revoking probation vacated.

FOOTNOTES

3.   Although we vacate the order revoking probation because the identifying information was insufficient, we use “defendant” for the purposes of this decision.

4.   See note 1, supra.

5.   CORI stands for Massachusetts Criminal Offender Records Information.

6.   The Triple I is a multistate National Crime Information Center criminal history report.

7.   Because we conclude that the evidence of the defendant's identity was insufficient, we need not reach his other claims of error.