COMMONWEALTH v. PORTEE (2021)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from an order of a Superior Court judge revoking his probation.² On appeal, he argues that the judge erred in allowing unreliable hearsay evidence thereby denying him the opportunity to confront and cross-examine the witnesses. We affirm.

Discussion. “A defendant on probation is subject to a number of conditions, the breach of any one of which constitutes a violation of his probation.” Commonwealth v. Durling, 407 Mass. 108, 111 (1990). See Commonwealth v. Vargas, 475 Mass. 86, 93 (2016), quoting Durling, supra at 112 (“Any conduct by a person on probation which constitutes a violation of any of the conditions of his probation may form the basis for the revocation of that probation”). “The Commonwealth must prove a violation of probation by a preponderance of the evidence.” Commonwealth v. Bukin, 467 Mass. 516, 520 (2014).

We review a probation revocation order for an abuse of discretion. Id. at 520-521. Where “revocation of probation [is] based upon a violation of criminal law, ‘there is no prerequisite that the probationer be convicted.’ ” Commonwealth v. Emmanuel E., 52 Mass. App. Ct. 451, 453 (2001), quoting Rubera v. Commonwealth, 371 Mass. 177, 180-181 (1976). The judge revoking probation need only find by a preponderance of the evidence that the defendant committed a new criminal offense. See Bukin, 467 Mass. at 520. “Because it rests on a finding of guilty beyond a reasonable doubt, however, ‘[a] criminal conviction ․ adequately protects the probationer's right to due process, and may serve as the basis for a summary [finding of a probation violation] even though the judge lacks the factual information to make an independent determination that a probation violation has occurred.’ ” Commonwealth v. Joyner, 467 Mass. 176, 190 (2014), quoting Commonwealth v. Maggio, 414 Mass. 193, 198 (1993). Such a conviction is “a more than sufficient basis for revocation of probation, even if that conviction is still awaiting appellate review.” Rubera, supra at 182, quoting Robertson v. Connecticut, 501 F.2d 305, 308 (2d Cir. 1974).

On this record, we need not reach the issue of the admissibility of hearsay evidence because the judge stated on the record that she “[found] the defendant in violation of the conditions of probation by committing [a different] offense ․ which the defendant was convicted after a jury trial.” Put another way, the judge found the defendant violated the terms of his probation based on his subsequent conviction, and not on the challenged hearsay evidence. See Joyner, 467 Mass. at 190. That the defendant has appealed the subsequent conviction is of no moment. See Rubera, 371 Mass. at 182. See also Commonwealth v. Hernandez, 481 Mass. 582, 594-595 (2019), quoting State v. Carlin, 249 P.3d 752, 762 (Alaska 2011) (“a convicted defendant is presumed guilty despite the pendency of an appeal, and the conviction is presumed ․ valid[ ]”). Therefore, there was no abuse of discretion.³

Order revoking probation affirmed.

FOOTNOTES

2.   The defendant was sentenced to five years to five years and one day to be served concurrently with a fourteen to sixteen-year sentence he was then serving for a subsequent crime.

3.   We agree with the defendant that this case is not moot.