COMMONWEALTH v. PAUL SAINT (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant pleaded guilty to indictments charging him with kidnapping, breaking and entering in the daytime with the intent to commit a felony, and assault and battery on a family member. The defendant was sentenced to a term in prison for the breaking and entering charge, and to two years of probation, from and after his sentence on the breaking and entering charge, for the kidnapping and assault and battery charges.

Thereafter, the defendant was found in violation of his probation and was reprobated. Following this, the defendant was again found in violation of his probation, and he was sentenced to the house of correction, and another term of probation. On appeal, he claims he should have benefited from the rule of lenity, and that the requirement that he complete the batterer's intervention program “with no interruption” was read too strictly. We affirm.

“A determination whether a violation of probation has occurred lies within the discretion of the hearing judge.” Commonwealth v. Bukin, 467 Mass. 516, 519-520 (2014). The Commonwealth must prove a violation of probation by a preponderance of the evidence. Commonwealth v. Nunez, 446 Mass. 54, 59 (2006). Here, for the first time on appeal, the defendant claims that his probation should not have been revoked for his possession of a knife in violation of G. L. c. 269, § 10 (b), because the statute is ambiguous and that he should therefore benefit by the application of the rule of lenity. Having been raised for the first time on appeal, the claim is waived. See Commonwealth v. Morse, 50 Mass. App. Ct. 582, 589 (2000). Even if the claim was not waived, it lacks merit.

Putting aside whether the rule of lenity even applies to probation revocation proceedings, see Commonwealth v. Durling, 407 Mass. 108, 112-113 (1990) (probation revocations proceedings are not akin to criminal trial), the rule does not apply in the circumstances of this case. “Although the rule of lenity gives defendants the benefit of a plausible ambiguity, it ‘does not mean that an available and sensible interpretation is to be rejected in favor of a fanciful or perverse one.’ ” Commonwealth v. Muir, 84 Mass. App. Ct. 635, 641 (2013), quoting Commonwealth v. Roucoulet, 413 Mass. 647, 652 (1992).

Here, G. L. c. 269, § 10 (b), punishes the carrying on his person “a switch knife, or any knife having an automatic spring release device by which the blade is released from the handle, having a blade of over one and one-half inches.” According to the Commonwealth's evidence, which the judge was entitled to credit, the defendant possessed a knife, which appeared to be longer than one and one-half inches, that operated by clicking “the tab on the back of it. It has a spring-loaded blade which deployed the blade.” While on the stand, a detective performed demonstrations for the judge's benefit as to how the spring-loaded knife deployed the blade. Contrary to the defendant's claim, the statute punishes more than mere possession of a “switch knife,” as it also punishes possession of “any knife having an automatic spring release device by which the blade is released from the handle.” G. L. c. 269, § 10 (b). This satisfied the Commonwealth's burden of proving the violation by a preponderance of the evidence. See Commonwealth v. Morse, 50 Mass. App. Ct. 582, 594 (2000).

Also for the first time on appeal, the defendant takes issue with the alternative reason his probation was violated. In particular, he claims that his probation should not have been revoked because the requirement that he complete batterer's intervention “with no interruptions” was too strictly enforced. We disagree.

Even though the claim is waived, see Commonwealth v. Obi, 475 Mass. 541, 549 (2016), we note that after he was reprobated, the docket expressly stated the probation condition as “[r]e-enter at earliest opportunity the Batterer's Program and upon re-entry to attend continuously through to successful completion.” Given the defendant's attendance record in the past, this conditioned clarified that he had to attend all classes to successfully complete the program. This was neither ambiguous nor unfair. When the defendant failed to so attend, the judge did not abuse his discretion in finding the defendant in violation of this condition of his probation.

Order revoking probation and imposing sentence affirmed.