COMMONWEALTH v. LOSEMAN (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

On August 1, 2017, the defendant, Melissa Loseman, admitted to sufficient facts with respect to a charge of negligent operation of a motor vehicle, in violation of G. L. c. 90, § 24 (2) (a). A District Court judge continued the case without a finding for six months, until February 1, 2018. As a condition of probation, the defendant was required to complete a safe driver's course. She was also ordered to pay a number of fees, including a head injury assessment of $ 250, a counsel fee of $ 150, a victim-witness assessment of $ 50, and probation fees of $ 50 per month. The judge stated that probation could terminate prior to February 1 if the defendant completed the program and paid the fees. Defense counsel stated that the defendant would “ask for some time to make those payments, understands this can't be dismissed until her ․ payments are made and the program completed.”

After three months, on October 31, 2017, the probation department issued a notice of violation on the grounds that the defendant had not paid any of the fees or completed the safe driver's course. In written submissions and at the revocation hearing held on December 8, 2017, the defendant argued that under Commonwealth v. Henry, 475 Mass. 117, 121-122 (2016), she could not be found in violation of probation because she could not afford to pay the fees or the cost of attending the safe driver's course.² The probation officer informed the judge that she and the defendant had discussed the defendant's financial situation several times over the course of her probationary term and that some of the fees had been converted to community service because of the defendant's indigency. Regarding the safe driver's course, the probation officer and the judge then had the following exchange:

Probation Officer: “And today, Your Honor, [p]robation has reviewed the case, and we request that we set a status date for the safe drivers course, and allow her additional time -- ”

Judge: “Uh-huh (yes).”

Probation Officer: “ -- to address that, and specifically have this event only deal with the failure to pay the fees and the fines, or perform community service. And perhaps have a status date if, if it's convenient for the [c]ourt on January 12th or January 19th.”

Judge: “To see if she's done the safe driving class --”

Probation Officer: “To address the safe driving class.”

Judge: “ -- by then.”

Ultimately, the judge agreed to waive a number of the assessments and convert the probation supervision fees to community service. However, the judge found that the defendant violated the terms of probation by not having completed the safe driver's course:

“I'm going to find her in violation on the, for, not for the failure to pay the monies, but for the failure to do the class. I'm going to, I have the authority to extend her probation. I'm going to extend her probation. It will be from [ninety] days from today. So she's on probation, it's going to be beyond that February 1st date. So ․ I'm going to extend her probation until March the 9th.”

The defendant filed a notice of appeal from the finding of a probation violation. She completed the safe driver's course on February 3, 2018, and the charges against her were dismissed on March 9, 2018.

Discussion. On appeal, the defendant argues that her probation violation was not willful because the only reason she did not complete the safe driver's course was that she could not afford it. She contends that finding her in violation of probation for failing to complete a program she could not afford amounted to punishing her for her poverty and violated due process. The judge, however, went to great lengths to accommodate the defendant's financial circumstances, remitting or converting to community service nearly all of the defendant's monetary obligations, thus permitting her to use her limited funds to register for the safe driver's course.

We need not resolve whether the defendant could afford the program or whether finding her in violation for failing to complete a program she could not afford violates the principles of Henry. The defendant could not have been found in violation for a more immediate reason: at the time of the probation violation hearing, she had not failed to complete the course in a reasonable amount of time.³

In light of the specific instruction that probation would terminate when the defendant completed the program and paid the outstanding fees, the most natural understanding of the terms of the defendant's probation was that she had six months, until February 1, 2018, to complete the safe driver's course. As of the probation violation hearing on December 8, 2017, she still had almost two months remaining. To the extent the probationary terms did not require the defendant to complete the program by a date certain, “the defendant's obligation [was] to act with reasonable promptness to comply with the schedule established by [her] probation officer.” Commonwealth v. Bynoe, 85 Mass. App. Ct. 13, 20 (2014). In such circumstances, “[t]he practice is that the probation officer, in consultation with the probationer, establishes the date by which time the probationer must be enrolled in or must have completed a required treatment program.” Id.

The testimony at the violation hearing did not suggest that the defendant had failed to enroll in or complete the program by the deadline that the probation officer established. To the contrary, the officer stated that she was willing to give the defendant at least another month to comply with this condition, suggesting a status hearing on January 12 or 19, 2018. In short, it was premature to find that that defendant had violated probation by not yet having completed, or even begun, the class. In these circumstances, the order dated December 8, 2017, finding the defendant in violation of the terms of her probation, and extending her probationary period, is vacated.

So ordered.

vacated

FOOTNOTES

2.   According to defense counsel the course cost $ 185; the probation officer believed the cost was $ 135.

3.   After oral argument, we requested the parties to submit supplemental briefing to address the following question: “Was it proper for the judge on December 8, 2017, to find the defendant in violation of the terms of probation for failing to comply with the condition that she complete the safe driver's course on or before February 1, 2018?”