COMMONWEALTH v. PENA (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

In May 2017 the defendant pleaded guilty to breaking and entering in the daytime, breaking and entering with the intent to commit a misdemeanor, wanton destruction of property, two counts of intimidation, and two counts of solicitation to commit a felony. He was sentenced to five to six years in State prison, followed by three years of probation. In April 2018 the defendant moved to modify the conditions of his probation, arguing that he should not be required to wear a global positioning system (GPS) monitoring device.² A Superior Court judge, who was also the sentencing judge, denied the motion on the ground that no material change in circumstances warranted changing the probation conditions. The defendant appeals.³

We review the judge's decision for abuse of discretion. See Commonwealth v. Morales, 70 Mass. App. Ct. 839, 840 (2007). A sentencing judge has “ ‘great latitude’ in imposing conditions of probation.” Commonwealth v. Lapointe, 435 Mass. 455, 459 (2001), quoting Commonwealth v. Pike, 428 Mass. 393, 402 (1998). The judge has authority to modify the conditions where there has been “a material change in circumstances” and modification would “serve ‘the ends of justice and the best interests of both the public and the defendant.’ ” Morales, supra at 845, quoting Buckley v. Quincy Div. of the Dist. Court Dep't, 395 Mass. 815, 817 (1985).

Here, the judge did not abuse his discretion in declining to modify the probation conditions because the defendant identified no material change in circumstances. The defendant argued that he lacked the means to comply with the GPS monitoring condition because he will be homeless upon release from incarceration. A prediction of future homelessness does not, however, constitute a change in the defendant's current circumstances.

Order denying motion to modify conditions of probation affirmed.

FOOTNOTES

2.   The defendant also argued that he should not be required to submit to random drug and alcohol testing, but, as the Commonwealth notes, the record reflects that the judge did not impose any such requirement as a condition of the defendant's probation. The defendant does not claim otherwise.

3.   Given our decision, the defendant's subsequent appeal from the judge's order denying his motion to stay GPS monitoring pending appeal is now moot.