COMMONWEALTH v. PILLIER (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant appeals from the denial of his motion pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), which sought to withdraw his guilty plea or, alternatively, to vacate a condition of his probation. The defendant argues (1) that his guilty plea was invalid because the plea was taken before the judge engaged in the required colloquy to determine whether the plea was knowing and voluntary, and (2) that a probation condition prohibiting the defendant from contact with his own biological children is unconstitutional and thus an illegal sentence. We affirm.

Background. On April 9, 2013, the defendant's sixteen year old stepdaughter informed officials at her high school that the defendant had sexually abused and assaulted her that morning. The victim later went on to recount additional, extensive sexual abuse at the hands of the defendant, spanning nearly five years. She explained that the defendant had assaulted her while she was sleeping or otherwise vulnerable, including multiple instances of rape and attempted rape, and that the defendant took videos and photographs of the assaults.

The defendant was indicted on thirty-five counts related to the abuse, and on December 4, 2014, he pleaded guilty to each count. The defendant was sentenced to fifteen to twenty-three years in prison followed by five years of probation. One probation condition, which commenced immediately, prohibited the defendant from having any contact with his three biological children.

In September of 2017 the defendant moved pursuant to rule 30 (b) to withdraw his guilty plea, and to vacate the above noted probation condition as an illegal sentence. The defendant argued that his guilty plea was invalid because it was entered prior to the colloquy with the judge, and prior to any explanation of the consequences of pleading guilty. The defendant also argued that the probation condition prohibiting contact with his biological children infringed on his constitutional right against government interference with the family unit, and with his right to raise his own children. The motion judge ruled that the plea was valid and that the probation condition was permissible, although the judge specifically noted that the defendant could revisit the probation condition after his children “reach[ed] adulthood.” The defendant appeals.

Discussion. The defendant first contends that his guilty plea was entered prior to the required colloquy with the judge, and thus that his plea could not satisfy the constitutional requirement that it be knowing and voluntary. This argument is without merit. The plea judge followed a common procedure, one that is consistent with Mass. R. Crim. P. 12 (c), as appearing in 470 Mass. 1501 (2015), and the constitutional requirements. Under that procedure the defendant first “tendered” his guilty plea by responding to questions from the court clerk. Mass. R. Crim. P. 12 (c) (2). After the tender, the judge conducted the required colloquy in order to advise the defendant of the rights he would be foregoing, and to determine whether it was appropriate to accept the plea. See Mass. R. Crim. P. 12 (c) (3) (A) (“The judge shall․ [p]rovide notice to the defendant of the consequences of the plea”). The judge began the colloquy: “I'm going to ask you some questions so I can make sure your decision to plead guilty today is being made knowingly of your own free will and voluntarily.” At the close of the colloquy the judge found that the plea was “made knowingly, willingly, and voluntarily,” and accordingly “accepted” the plea. See Mass. R. Crim. P. 12 (c) (5) (acceptance of plea).

This process was in accordance with rule 12, and the constitutional requirement that a guilty plea must be knowing and voluntary. See Boykin v. Alabama, 395 U.S. 238, 242-243 (1969). The defendant does not object to the substance of the colloquy or the advising of his rights. Rather, the defendant's only objection is that, according to the defendant, he actually “entered his plea” of guilty before the colloquy commenced. We do not find this to be a fair characterization of what transpired. As rule 12 contemplates, the plea hearing was initiated by a “tender” -- by the defendant indicating, to the court, his intention to plead guilty. Then, shortly after the defendant answered the clerk's questions, the judge began by describing the defendant's answers as an offer to plead guilty: “And are you now offering to plead guilty to these indictments?” After the defendant answered affirmatively, the judge went on to conduct the colloquy and to make the findings required by rule 12. In its totality, the process provided the defendant all the information required, and ensured a knowing and voluntary plea. The defendant has not identified a single case suggesting that the process employed here was constitutionally infirm. There was no error.

The defendant next argues that the condition of probation prohibiting all contact by the defendant with his biological children is illegal and in violation of his fundamental rights. We disagree, because the condition is valid under the circumstances here.

Probation is a creature of statute. General Laws c. 276, § 87, authorizes a judge to place a defendant in the care of a probation officer “for such time and upon such conditions as [the judge] deems proper.” See Commonwealth v. Lapointe, 435 Mass. 455, 459 (2001) (“Judges are permitted ‘great latitude’ in imposing conditions of probation” [citation omitted] ). Conditions of probation will sometimes go beyond restraints on liberty and infringe upon other constitutional rights -- such as rights of association or, as in this case, parenting. Such conditions are nevertheless enforceable where they are reasonably related to the goals of sentencing and probation -- such as rehabilitation, public protection, and deterrence. Id. See Commonwealth v. Gomes, 73 Mass. App. Ct. 857, 858-859 (2009). Conditions that infringe upon constitutional rights are “not without limits,” however, and “merit ‘special scrutiny’ ” (citation omitted). Commonwealth v. Obi, 475 Mass. 541, 547 (2016). Generally, where the condition advances a probationary goal and the right at issue is not unnecessarily burdened in light of the facts of the crime, the condition will be upheld. See Commonwealth v. Pike, 428 Mass. 393, 403 (1998) (“[Probationary] goals are best served if the conditions ․ are tailored to address the particular characteristics of the defendant and the crime”).

Indeed, the Supreme Judicial Court has several times upheld probation conditions that infringe on fundamental constitutional rights, including the right to parent. See, e.g., Commonwealth v. Eldred, 480 Mass. 90, 97 (2018) (affirming condition of remaining drug free with random testing); Lapointe, 435 Mass. at 460-461 (affirming condition prohibiting defendant from residing with his children); Commonwealth v. Power, 420 Mass. 410, 415 (1995) (affirming condition affecting First Amendment rights); Commonwealth v. Veronneau, 90 Mass. App. Ct. 477, 481-482 (2016) (affirming condition prohibiting firearm possession).

Here, the probation condition that the defendant not have contact with his minor children substantially advanced the goals of protection of the public, deterrence, and punishment, and was appropriately tailored to the defendant's crime. The defendant repeatedly assaulted a minor stepchild that lived with the defendant in the defendant's own home. The defendant's actions were an extreme breach of trust, and in so acting the defendant took advantage of his parental role and of his access to the minor child, which access arose from his status as a parent.

The decision in Lapointe is instructive. In Lapointe, the court upheld a condition prohibiting the defendant -- convicted of indecent assault and battery against his minor daughter -- from residing with any minor children, including his biological children, and “any future children he might have.” Lapointe, 435 Mass. at 458. The court held that such residency prohibitions were appropriate because they were designed to “remove the defendant from situations in which he presents a danger,” to deter his conduct, and to assist his rehabilitation. Id. at 460. See Commonwealth v. Goodwin, 414 Mass. 88, 93-94 (1993) (recognizing particularly high recidivism rates among child molesters).

It is true that the condition at issue goes beyond the condition in Lapointe, by prohibiting all contact with the defendant's minor children.³ The condition nevertheless is within the judge's “great latitude,” in light of the circumstances of the defendant's crime. Lapointe, 435 Mass. at 459. While the defendant does have a constitutional right to raise, and thus to have contact with, his own children, see Blixt v. Blixt, 437 Mass. 649, 652 (2002), such a right is of course not absolute; it was reasonable for the judge to infringe on that right where the defendant had previously used his position as parent to exploit a vulnerable child in his care.⁴ The motion judge appropriately noted that the defendant may revisit the condition by motion after the defendant's children have reached adulthood.

Orders dated September 25, 2017, and December 19, 2017, denying motion to withdraw plea affirmed.

FOOTNOTES

3.   The conditions in Lapointe prohibited the defendant from residing with the defendant's minor children, as well as any future children, but allowed some contact with all of his children and grandchildren apart from the victim and her family.

4.   We note that the defendant was advised that this condition would be imposed during the plea hearing, and he did not object at that time.