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Appeals Court of Massachusetts.



Decided: February 24, 2021

By the Court (Green, C.J., Meade & Rubin, JJ.1)


We agree with the juvenile's contention on appeal that the addition of a condition to his probation, requiring that he “comply with Department of Youth Services [DYS] requirements and conditions of liberty,” impermissibly delegated to the executive branch the power to set the terms of his probation. We accordingly reverse the Juvenile Court judge's finding that the juvenile violated the conditions of his probation, and vacate the subsequent probation conditions.2

Background. Among the conditions of probation imposed at the juvenile's sentencing (on charges of armed robbery and assault and battery by means of a dangerous weapon) was a requirement that he notify his probation officer within forty-eight hours of a change of residence. After the juvenile left the foster home in which he had been placed by DYS for five days without explanation, a notice of violation issued alleging that he had changed his residence without giving the required notice to his probation officer. At a hearing on the alleged violation, a judge of the Juvenile Court declined to find him in violation, but imposed as an additional condition of probation that he comply with DYS requirements and conditions of liberty. Thereafter, the juvenile again left his foster home without the required notice, stipulated to a violation of his probation, and was reprobated under the same conditions. When the juvenile yet again left his foster home without explanation or notice to his probation officer, a different judge of the Juvenile Court found him in violation and imposed additional conditions of probation. The juvenile appealed, challenging the imposition of the condition he was found to have violated.

Discussion. Article 30 of the Massachusetts Declaration of Rights establishes the separate powers of the independent branches of State government. The authority to impose criminal sentences is vested in the judicial branch, and may not be delegated to the executive. It is settled that a sentencing judge may not delegate to the probation department, within the executive branch, the authority to set conditions of probation. See Commonwealth v. Lally, 55 Mass. App. Ct. 601, 603 (2002). The condition that the juvenile comply with DYS requirements and conditions of liberty described no specific terms or conditions. At the hearing at which the condition was imposed, the “conditions of liberty” were not described. Though “conditions of liberty” appear to be a term of art, with reference to a “Conditional Liberty Agreement” contemplated by 109 Code Mass. Regs. § 8.05, no such agreement was presented at the hearing, nor is any in the record before us. Moreover, as the juvenile observes, DYS also holds the power to modify the conditions of liberty at any time. See G. L. c. 120, § 6 (a), (d).

In short, though it appears that the judge likely intended at the time he imposed the additional condition to require that the juvenile remain at the foster home in which DYS had placed him (or at least to notify his probation officer of his whereabouts if he went elsewhere), the broad adoption by the judge of unspecified “conditions of liberty” set by DYS went far beyond that intent, and delegated to DYS an essentially unfettered authority to set the terms and conditions of the juvenile's probation.3

Separately, we reject the Commonwealth's contention that the finding of a probation violation may rest independently on the juvenile's change of residence without notice to his probation officer. As a threshold matter we note that it is not at all clear from the record that the judge found a violation of that condition.4 In any event, we agree with the juvenile that a two-night absence from the foster home does not constitute a change of residence. See, e.g., Commonwealth v. Pike, 467 Mass. 1008, 1008-1009 (2014); Commonwealth v. Bolling, 72 Mass. App. Ct. 618, 623, 625 (2008).5

Therefore, on the orders entered May 6, 2019, the finding of a probation violation is reversed, and the subsequent conditions of probation imposed as a result of that finding are vacated.

So ordered.

reversed in part; vacated in part


2.   We note that it is immaterial whether the juvenile's challenge to a finding of violation of an impermissible condition was preserved. An impermissible condition of probation “is akin to an illegal sentence,” and a violation grounded on an impermissible condition gives rise to a substantial risk of a miscarriage of justice. Commonwealth v. Gomes, 73 Mass. App. Ct. 857, 859-860 (2009).

3.   To the extent we have accurately inferred in the preceding discussion the judge's intent, there were any number of permissible means for the judge to have effected that intent. The first, and most obvious, would have been to express the additional condition of probation in terms describing that intent: to say that the juvenile should stay at the foster home to which he was assigned every night, unless otherwise excused by his probation officer. Alternatively, the conditional liberty agreement could have been entered in evidence (if it existed at the time), and the relevant terms adopted as terms of the juvenile's probation. In the present case, however, the broad and unfettered reference to undefined “conditions of liberty,” set by an executive agency, and subject to future change beyond the court's supervision or authority, was impermissible.

4.   We note that the judge at the first violation hearing declined to find a violation of the change of residence condition, despite a significantly longer unexplained absence from the foster home.

5.   The Commonwealth's attempt to distinguish Pike and Bolling based on the reasonable doubt standard of proof applicable in those cases is misplaced. The question in both cases, as in this one, was not one of fact, as the essential facts are not in dispute. Instead the question is one of law: whether a brief absence constitutes a change of residence.

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