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Appeals Court of Massachusetts.



Decided: February 12, 2021

By the Court (Henry, Sacks & Englander, JJ.1)


After a hearing at which the defendant proceeded without counsel, a judge of the Falmouth Division of the District Court found that the defendant had violated conditions of his probation and entered an order revoking his probation and imposing a sentence. On appeal, the defendant contends that his waiver of his right to counsel was invalid because it was not preceded by an adequate colloquy. He also argues that he did not have the opportunity to be heard, that he did not validly waive the minimum seven days' notice prior to the hearing, and that the sentence must be vacated because the judge impermissibly punished him based on the new charges and the judge's personal feelings. We vacate the order.

Discussion. 1. Right to counsel. A defendant has the right to counsel at a probation violation hearing. See Rule 5(c) of the District/Municipal Court Rules for Probation Violation Proceedings (2020) (“The probationer shall be entitled to counsel”). See also Commonwealth v. Pena, 462 Mass. 183, 191 (2012). “[A] waiver [of counsel] must be voluntary and must involve an informed and intentional relinquishment of a known right. The judge must ensure by careful inquiry on the record that the waiver is made with a sense of the magnitude of the undertaking and the disadvantages of self-representation” (quotations and citations omitted). Commonwealth v. Means, 454 Mass. 81, 89 (2009). Here, the defendant was facing the risk of incarceration for multiple violations of his probation.

Prior to his probation revocation hearing, the defendant was held in lock-up, where he met with a bar advocate. The bar advocate allegedly told the defendant, “fuck you,” whereupon the defendant responded similarly and fired the bar advocate. There were two other bar advocates in the courtroom, one of whom had a conflict, and the second of whom informed the judge that, “It sounds like Mr. Jacintho had declined Counsel.” The judge then asked the defendant, “Is that a waiver of counsel?” The defendant told the judge the events that had transpired in lock-up, whereupon the judge asked, “So do you want a lawyer or you don't want a lawyer?” and, upon receiving an answer that the defendant did not want a lawyer, asked, “You sure?” The defendant thereupon signed a waiver of his right to counsel, stating that he was aware of his right to counsel and had elected to proceed without. The judge countersigned the form and then held the probation revocation hearing.

On the record before us, there was thus not a sufficient colloquy as required by S.J.C. Rule 3:10, as appearing in 475 Mass. 1301 (2016), to conclude that the defendant's waiver of his right to counsel was knowing and voluntary. Although there is no specific set of questions that a judge must ask, the judge must establish an adequate basis for a finding that the defendant's waiver of the right to counsel was knowing and voluntary. See Commonwealth v. Barnes, 399 Mass. 385, 390-391 (1987). The signing of the waiver of counsel form does not alone prove that the defendant's waiver was knowing and voluntary. See Commonwealth v. Cote, 74 Mass App. Ct. 709, 713 (2009). The inquiry here was woefully inadequate. “We must be confident that the defendant was ‘adequately aware of the seriousness of the charges, the magnitude of his undertaking, the availability of advisory counsel, and the disadvantages of self-representation.’ ” Commonwealth v. Martin, 425 Mass. 718, 720 (1997), quoting Barnes, supra at 391.

The Commonwealth's argument that the sentencing judge could consider the defendant's prior experience with the criminal justice system is not a substitute for a “meaningful inquiry” into the advantages of counsel and the risks associated with self-representation. Commonwealth v. Mott, 2 Mass. App. Ct. 47, 52 (1974). The record does not allow us to be confident that the defendant had a “subjective understanding of his decision and its consequences.” Barnes, 399 Mass. at 391.

2. Due process. Probationers have liberty interests at stake in a revocation hearing and due process rights pursuant to the Fourteenth Amendment to the United States Constitution, including the right to: “disclosure of the evidence against him or her, the opportunity to be heard in person and present witnesses and evidence, confront[ ] and cross-examin[e] adverse witnesses (unless the hearing officer specifically finds that there is good cause for not allowing confrontation or the hearsay evidence is reliable), a neutral and detached hearing body, and a written statement of the evidence relied on and the reasons for revoking probation” (quotation omitted). Commonwealth v. Wilcox, 446 Mass. 61, 66 (2006). Here, while the defendant received a written notice of the pending charges constituting the alleged probation violation, the transcript reflects that the probation officer handed the judge a police report and photographs without showing them to the defendant. The Commonwealth's contention that the defendant knew what the evidence was against him does not address this lack of process. The judge also failed to afford the defendant an opportunity to be heard in response.2 In light of our disposition we need not address the defendant's other arguments.

Order revoking probation and imposing sentence vacated.


2.   While the defendant briefly interjected that he “didn't do that” in response to the charges constituting the alleged probation violation, this statement cannot be considered a meaningful opportunity to be heard, particularly where the transcript does not indicate that either the judge or the Commonwealth's attorney solicited or responded to this statement.

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Docket No: 20-P-687

Decided: February 12, 2021

Court: Appeals Court of Massachusetts.

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