COMMONWEALTH v. WOHL (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

On appeal from an order entered in the Boston Municipal Court, Central Division, revoking his probation, the defendant contends that certain critical evidence submitted at his revocation hearing was inadequate to establish a violation and that, in any event, additional evidence submitted with his subsequent motion for reconsideration establishes that no violation occurred. We need not consider whether an arrest not involving incarceration violated general condition no. 7 of the defendant's probation,² or whether the record of his arrest, in California, was properly admitted or relied upon without an explanatory key, because we agree with the defendant that the detention certificate and explanatory key, when subsequently presented with the defendant's motion for reconsideration, established that the defendant was not arrested in California. Accordingly, we agree with the defendant that his revocation hearing counsel rendered ineffective assistance at the hearing,³ whether by failing to obtain and submit a paper copy of the detention certificate and the explanatory key, or by failing to request a continuance in order to do so, once it became apparent the hearing judge was prepared to rely on the printout of the California record as a basis to revoke the defendant's probation.⁴ ,⁵

The order revoking the defendant's probation is reversed.

So ordered.

Reversed.

FOOTNOTES

2.   To be sure, the printed form condition is far from clear on the topic, stating that the probationer must “[r]eport to your probation officer within [forty-eight] hours after you are released from any incarceration, including arrest or new charges.” Among other ambiguities, the formulation invites the question whether the probationer must report an arrest not involving incarceration.

3.   We recognize that revocation counsel was operating under difficult conditions, having been brought from another court room with no prior notice to represent the defendant.

4.   The detention certificate, signed by a California police corporal, established that under California law, the defendant was only detained, not arrested. The explanatory key explains that the code entered in the record of the defendant's detention on September 22, 2017, was only a detention and not an arrest. In such circumstances, under California law, the detention shall not be deemed an arrest.

5.   Though the motion was styled a motion for reconsideration rather than as one for a new trial, “we treat the motion ‘according to [its] nature and substance rather than [its] technical form.’ ” Commonwealth v. Martinez, 81 Mass. App. Ct. 595, 598 n.6 (2012), quoting Commonwealth v. Gilbert, 447 Mass. 161, 167 (2006).