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Appeals Court of Massachusetts.



Decided: September 21, 2021

By the Court (Milkey, Lemire & Singh, JJ.1)


On appeal the defendant, Robert Jones, contends that the judge abused her discretion in finding him in violation of probation based solely on the issuance of a civil ex parte abuse prevention order. The Commonwealth concedes, and we agree, that the hearing judge abused her discretion in finding a probation violation based exclusively on the issuance of an abuse prevention order against the defendant where she did not independently find the evidence presented at the hearing to be substantially reliable.

Background. On January 24, 2019, the defendant pleaded guilty to five indictments and was sentenced to five years of probation. One of the conditions of his probation required that he obey all local, State, and Federal laws and all court orders. On August 14, 2019, the probation department filed a notice of alleged probation violation and hearing based on an abuse prevention order that was issued. An amended violation notice was filed on October 25, 2019, and included criminal charges based on the same incident that gave rise to the abuse prevention order. The alleged victim did not appear at the surrender hearing and the only evidence presented was the notice, the police report, the certified copy of the ex parte abuse prevention order, including the victim's affidavit, and the defendant's criminal offender record information (CORI). The judge did not find the police report and the alleged victim's affidavit to be substantially reliable. However, the judge found the defendant violated probation “for failure to obey laws only [and] simply because RO issued.”

Standard of review. This court must determine whether the hearing judge abused her discretion when she found the defendant in violation of his probation after an abuse prevention order was issued against him. See Commonwealth v. Bukin, 467 Mass. 516, 521 (2014). The hearing judge must, within her discretion, assess the weight of the evidence presented against the defendant. See id.

Discussion. The due process that applies to a probation revocation hearing is as follows:

“(a) written notice of the claimed violations of [probation or] parole; (b) disclosure to the [probationer or] parolee of the evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a ‘neutral and detached’ hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking [probation or] parole” (citation omitted).

Commonwealth v. Durling, 407 Mass. 108, 113 (1990). During a probation revocation hearing, the hearing judge must be capable of making an independent finding based on the evidence before her, at least to a reasonable degree of certainty, that the defendant had violated a condition or conditions of his probation. See Commonwealth v. Maggio, 414 Mass. 193, 198 (1993). Although hearsay is generally admissible at probation violation hearings, the hearing judge must find that the hearsay offered is substantially reliable. See Mass. G. Evid. § 1101 (c) (3) (2021).

Here, the hearing judge abused her discretion in finding a probation violation exclusively because an abuse prevention order issued against the defendant. General Laws c. 209A, “provides a statutory mechanism by which victims of family or household abuse can enlist the aid of the State to prevent further abuse.” Commonwealth v. Gordon, 407 Mass. 340, 344 (1990). While violating an abuse prevention order is a criminal offense, the mere issuance of one is not and therefore is not, standing alone, a basis for a probation violation. See G. L. c. 209A, § 3A; Maggio, 414 Mass. at 199 (unsupported allegations in indictment insufficient for finding probation violation). See also Mass. G. Evid. § 1106 & note (2021) (explaining 209A's civil nature and potential criminal consequences). In Maggio, the court held that there could not be a probation violation where the judge received only the indictment and therefore could not make the required independent finding that the defendant had violated a condition of his probation. See Maggio, supra at 198.

In order for a judge to grant a temporary ex parte abuse prevention order, the plaintiff must demonstrate a “substantial likelihood of immediate danger of abuse.” MacDonald v. Caruso, 467 Mass. 382, 386 (2014), quoting G. L. c. 209A, § 4. Although another judge found sufficient, reliable evidence to issue the ex parte abuse prevention order, the hearing judge did not find the hearsay evidence in the victim's affidavit or police incident report reliable and therefore erred in finding a probation violation based solely on another judge's assessment of the evidence supporting the restraining order.

Conclusion. For the reasons stated above, the judge abused her discretion in finding a probation violation. The orders entered on December 2, 2019, revoking probation, imposing sentence, and requiring condition of anger management are reversed.

So ordered.


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