COMMONWEALTH v. PURDIE (2021)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A judge of the Falmouth District Court found the defendant in violation of probation and sentenced him to three consecutive prison sentences.² On appeal, the defendant raises several due process challenges to the probation revocation proceeding. The defendant argues the judge demonstrated a lack of neutrality, made erroneous statements about the evidence and burden of proof, and failed to provide written findings for the revocation. We agree and vacate the order revoking probation and imposing sentence.

Discussion. A probation revocation hearing implicates a probationer's due process liberty interest. See Commonwealth v. Durling, 407 Mass. 108, 115 (1990). Accordingly, the due process clause of the Fourteenth Amendment to the United States Constitution guarantees certain minimum requirements for such a hearing, including: written notice of the charges; disclosure of the evidence against the probationer; the opportunity to be heard; the right to confront and cross-examine adverse witnesses; a “neutral and detached” hearing body; and a written statement of the evidence relied on and the reasons the judge revoked probation. Id. at 113. See Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973); Morrissey v. Brewer, 408 U.S. 471, 489 (1972). “While probationers facing revocation proceedings enjoy fewer and more flexible due process rights than criminal defendants, ․ the constitutional rights they do hold are appropriately guarded with equal vigilance.” Commonwealth v. Kelsey, 464 Mass. 315, 319 (2013).

Here, the defendant first received notice of a probation violation alleging that he was in arrears on required fees and that he failed to notify the probation department of a change of address within the required time. A subsequent notice of violation alleged that the defendant faced new criminal charges of drug trafficking and conspiracy to violate drug laws. At the probation revocation hearing, the judge stated that, because of the new charges, the probation hearing “seem[ed] like a waste of [his] time.” The judge also stated, “I can't tell you the depth of my loathing for drug dealers” and wrote “DRUG DEALER” in capital letters as the reason for revoking probation. Prior to imposing sentence, the judge confirmed the maximum sentence for the charges,³ and then exceeded the recommendation of the probation department by imposing consecutive sentences.⁴

A judge “must be ever vigilant to make certain that his personal and private beliefs do not interfere with his judicial role and transform it from that of impartial arbiter.” Commonwealth v. Mills, 436 Mass. 387, 401 (2002). Here, throughout the adjudicatory and disposition phases of the probation revocation hearing, the judge's expressed animosity toward drug dealers and frequent references to the pending drug trafficking charge against the defendant deprived the defendant of his due process right to a neutral and detached hearing body. See id.; Durling, 407 Mass. at 113.

At a probation revocation hearing, a judge must impose a sentence based on the “underlying offense for which a probationary sentence originally was imposed.” Commonwealth v. Odoardi, 397 Mass. 28, 30 (1986). See Commonwealth v. Eldred, 480 Mass. 90, 97 (2018). Although a judge may consider evidence of the defendant's similar criminal conduct if it is relevant to the defendant's character or rehabilitation, a judge cannot impose a sentence based on an untried offense. See Commonwealth v. Plasse, 481 Mass. 199, 206 (2019). Where a judge expresses “personal or private beliefs regarding the defendant's history that appear[ ] to ‘interfere with his judicial role and transform it from that of impartial arbiter,’ ” resentencing by a different judge is required. Id., quoting Mills, 436 Mass. at 401.

The record here shows that the judge sentenced the defendant to the maximum sentence allowable by law based on his belief in the defendant's guilt as to the pending drug trafficking charge and his animosity toward drug dealers. See Plasse, 481 Mass. at 206. See also McHoul v. Commonwealth, 365 Mass. 465, 472 (1974) (reversing and remanding sentences based on “an improper consideration” after probation revocation hearing). Nothing in the record indicates that the judge considered the facts of the underlying charges. Rather, the judge's entry of the words “DRUG DEALER” in the dispositional section of the probation revocation form suggests that he sentenced the defendant based on the conduct alleged in the new offense. We therefore cannot be confident that the judge's consideration of the untried drug trafficking offense at the disposition phase stayed within permissible bounds. See Commonwealth v. King, 96 Mass. App. Ct. 703, 712 (2019), quoting Commonwealth v. Marcus M., 92 Mass. App. Ct. 1, 6 (2017) (“We ‘cannot be confident that [the judge's] decision was not substantially influenced’ by these mistaken determinations”).

The order revoking probation and imposing sentence is vacated and the matter is remanded for further proceedings before a different judge.⁵

So ordered.

Vacated and remanded

FOOTNOTES

2.   The convictions underlying the defendant's probation were possession of a class B substance, G. L. c. 94C, § 32A; conspiracy to violate the drug laws, G. L. c. 94C, § 40; and possession of class A substance, G. L. c. 94C, § 32A. There is an inconsistency between the electronic docket, which lists the third conviction as possession of a class A substance with intent to distribute, and the paper docket and defendant's probation record, which both list that conviction as simple possession. We are satisfied that all parties at the probation revocation hearing relied on, and the defendant was sentenced pursuant to, the simple possession of a class A substance charge as it was listed on the paper docket. The parties may address the discrepancy in the record concerning the defendant's convictions on remand.

3.   The Commonwealth argues the judge did not sentence the defendant to the maximum sentence allowable by law because possession of a class A substance with intent to distribute carries with it a maximum sentence of two and one-half years. However, the record shows the judge sentenced the defendant to the maximum sentence on the simple possession of a class A substance charge as it was listed on the paper docket.

4.   The Commonwealth conceded at oral argument that the probation department did not recommend consecutive sentences.

5.   Given our disposition, we need not reach the defendant's other arguments.