COMMONWEALTH v. CONROY (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant appeals from an order revoking his probation. He contends that it was improper for the judge to consider charges filed against him in a subsequent criminal complaint, and that other “technical” violations of his probation should not have resulted in the revocation of his probation. We affirm.

Background. On June 29, 2016, the defendant admitted to sufficient facts on a charge of operating a motor vehicle under the influence of liquor (OUI). The plea judge continued the case without a finding for one year and placed the defendant on probation. Under the terms of his probation, the defendant was required to complete the G. L. c. 90, § 24D, alcohol education program (24D program), pay certain fees, and meet other conditions not relevant here. On the same day, the defendant signed a probation order requiring him to obey all local, State, and Federal laws, and to complete the 24D program. His probation was to terminate on June 27, 2017. Thereafter, the defendant stipulated to a violation of probation; his probation was extended to August 31, 2017.

On August 31, 2017, his probation was extended to October 26, 2017. Then, on October 12, 2017, a notice of probation violation and hearing issued, alleging that the defendant had not completed the 24D program or paid certain fees. A hearing was set for October 24, 2017. Between the October 12 notice of probation violation and October 24 hearing, the defendant was charged with new criminal offenses. Thus, another notice of probation violation and hearing issued. This notice included the additional allegation that on October 13, 2017, the defendant had not complied with the law as he had been charged with possession of an open container of alcohol, possession of a class E substance, negligent operation of a motor vehicle, and a marked lanes violation. A notice of a probation detention hearing issued alleging that the defendant had been charged with a new crime and was noncompliant while on probation.

A hearing on both pending probation violations was held; the judge found probable cause to believe that the defendant had violated his probation and ordered the defendant be taken into custody. The defendant then filed a motion to strike the allegations of the new criminal complaint, arguing that it should not have issued. The motion was denied.

After a two-day hearing, the judge entered findings, revoked the continuation without a finding, and imposed a finding of guilty on the OUI charge. The defendant was sentenced to one year in the house of correction, thirty days to serve, deemed served, with the balance suspended until November 20, 2018. The defendant was again ordered, among other things, to complete the 24D program. This appeal followed.

Discussion. The Commonwealth must prove any “violation of probation by a preponderance of the evidence.” Commonwealth v. Bukin, 467 Mass. 516, 520 (2014). On review, we determine “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.” Commonwealth v. Morse, 50 Mass. App. Ct. 582, 594 (2000).

Although a probation revocation hearing is not a “new criminal prosecution” because the Commonwealth has already proved guilt beyond a reasonable doubt for the underlying offense, such a hearing still “implicates due process rights because a finding of a probation violation may result in a loss of liberty.” Commonwealth v. Pena, 462 Mass. 183, 190 (2012). These due process requirements, however, are designed to be flexible, and to help ensure that the judge “accurate[ly]” determines “whether revocation [is] proper” in the defendant's situation. Morse, 50 Mass. App. Ct. at 594.

1. New criminal charges. The defendant suggests, without citation to authority, that because he claims he was entitled to a hearing before a clerk magistrate before the new complaint issued, it was error to consider that new criminal conduct. We disagree. Indeed, if a probation violation is based on the violation of criminal laws, “there is no prerequisite that the probationer be convicted thereof to permit the violation to be used as the basis for the revocation.” Commonwealth v. Durling, 407 Mass. 108, 112 (1990), quoting Rubera v. Commonwealth, 371 Mass. 177, 180-181 (1976). Even a defendant acquitted of new charges can be in violation of the terms of his probation. See Commonwealth v. Holmgren, 421 Mass. 224, 225 (1995).

2. “Technical violations.” The defendant also violated the terms of his probation for failing to pay certain fees in full.² He characterizes these as “technical violations” for which his probation should not have been revoked. “Although a violation of a condition of probation that is not based on the commission of a criminal offense has traditionally been referred to as a ‘technical’ violation, such a violation is nonetheless serious and constitutes an equally valid basis for the revocation of probation.” Pena, 462 Mass. at 186 n.4, citing Rubera, 371 Mass. at 180-181 (conduct by person on probation which constitutes violation of any of conditions of probation may form basis for revocation of probation).

Having properly determined that the defendant violated the terms of his probation, the judge was then required to determine whether to revoke the probation, reprobate the defendant, or terminate probation. We review such a decision for an abuse of discretion. Commonwealth v. Eldred, 480 Mass. 90, 102-103 (2018). The sentence imposed by the judge was well within his discretion. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

Order revoking probation affirmed.

FOOTNOTES

2.   The defendant's failure to complete the 24D program was not a basis for a finding of a violation of probation.