COMMONWEALTH v. GUZMAN (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant was convicted of assault and battery by means of a dangerous weapon in violation of G. L. c. 265, § 15A (b). On October 24, 2012, he was sentenced to five years' probation with conditions, which would end on October 27, 2017. A little over one month before that five years' probation was to end, a notice of probation violation was filed. The defendant had once previously been found to have violated his probation, apparently for failing to attend mandatory treatment, but he was reprobated with the same conditions of probation. The testimony at the probation revocation hearing in this case, which was uncontested, revealed that on the date of the alleged violation, the mother of the defendant's child had a G. L. c. 209A restraining order in place against the defendant prohibiting him from contacting her. On the morning of the alleged violation she was contacted by the defendant's mother who asserted that she had an emergency and would be unable to pick up the defendant at his court-ordered treatment, and asked his child's mother to pick him up. When the defendant's child's mother arrived to pick him up he was surprised to see her. They had a conversation about going to court to have the restraining order lifted and, indeed, she had the restraining order vacated later that day. At the probation revocation hearing, however, counsel for the defendant conceded that the defendant violated the restraining order by being in the same vehicle as the mother of his child and, as such, violated his probation.

Both the defendant and the probation officer argued for reprobating the defendant. By the time of the hearing, the defendant's five-year probationary term had less than one week until its expiration, and the defendant recommended one additional week of probation. The probation officer agreed that reprobation was the proper punishment, but stated that the length of reprobation was a matter best left to the judge's discretion. The judge, however, rejected those recommendations, as he was entitled to do, and revoked the defendant's probation, sentencing him to the maximum sentence for the underlying conviction, two and one-half years in the house of correction. The defendant has appealed.

“Where a [probation] violation has occurred, the judge must determine the appropriate disposition for the defendant․ Permissible dispositions include revoking the defendant's probation and sentencing the defendant for the underlying crime, modifying the terms of the defendant's probation, or reprobating the defendant on the same conditions of probation․ The defendant, in either scenario, is not being punished for violating the probationary condition that triggered the revocation or modification, but rather for the original conviction.” Commonwealth v. Eldred, 480 Mass. 90, 102 (2018).

Although determination of the disposition in a proceeding in which a defendant has been found in violation of probation is within the judge's discretion -- and a sentence, including the maximum sentence permissible on the underlying crime, as was imposed in this case, is a permissible disposition -- case law indicates that that discretion must be guided by certain considerations. “In determining the appropriate disposition, the court shall consider ‘such factors as public safety; the circumstances of any crime for which the probationer was placed on probation; the nature of the probation violation; the occurrence of any previous violations; and the impact of the underlying crime on any person or community, as well as mitigating factors’ ” (emphasis added). Id. at 103, quoting Rule 8(d) of the District/Municipal Court Rules for Probation Violation Proceedings. In addition, as a matter of due process, the judge must consider whether the “circumstances in mitigation suggest that the violation does not warrant revocation.” Morrissey v. Brewer, 408 U.S. 471, 488 (1972). See Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973) (“hold[ing] that a probationer, like a parolee, is entitled to a preliminary and a final revocation hearing, under the conditions specified in Morrissey v. Brewer“). Due process also requires “a written statement by the factfinder[ ] as to the evidence relied on and reasons for revoking” probation. Morrissey, 408 U.S. at 489.²

In this case, after the probation officer echoed the defendant's own recommendation of reprobation, the judge provided his reasoning and his disposition, saying, “I'm not going to reprobate him. I have read the letter [from his treatment professionals]. I've also read the police reports and [sic] the underlying case. And I'm looking at his record where he's already served two years for an indecent assault and battery․ I have to tell you, the facts of this case are so bad. They're bad. I can't imagine worse facts, in all candor. Probation's revoked. He's to be given a sentence of two-and-a-half years to the House of Correction, committed.”

Because the judge's explanation contained no discussion of the nature of the violation or of the mitigating circumstances alleged by the defendant, we stayed the appeal and remanded the case to the hearing judge to ask that he spell out in written findings whether and how he took into account the nature of the violation in making his dispositional determination, and whether, if he had not done so, what disposition he thought was appropriate in light of it. The judge provided us with these findings in the form of a detailed and scholarly memorandum of decision on the probation violation hearing. As relevant here, the judge wrote that “[t]he court gave the probationer the opportunity to show the court that there was a ‘justifiable excuse for [the] violation or that revocation is not the appropriate disposition’ as required by Eldred. The court has considered the nature of the facts of the new offense and the mitigating facts alleged by the probationer with regard to this new offense pursuant to Morrissey v. Brewer, 408 U.S. 471, 488 (1972) and Commonwealth v. Eldred, 480 Mass. at 103․ [T]he probationer willfully and knowingly violated the terms of the court ordered restraining order despite knowing the potential consequences of the violation. A subsequent termination of the restraining order by the victim does not negate the fact that the defendant intentionally -- and not for the first time -- violated a court order.”

In light of the judge's findings, there was no abuse of discretion or other error of law in the disposition entered. The order revoking probation and imposing sentence therefore is affirmed.

So ordered.

FOOTNOTES

2.   The oral recitation of the findings and the reasons for revocation, when transcribed, satisfies the requirement of a written statement by the fact finder. See Fay v. Commonwealth, 379 Mass. 498, 504-505 (1980).