COMMONWEALTH v. MANUEL LUCERO (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from a Superior Court order that revoked his probation and imposed a State prison sentence for the underlying charge of rape. He asserts the judge abused his discretion in revoking his probation, that the revocation and resentencing violated double jeopardy, and that the judge committed error by finding a GPS monitoring violation when he never had a hearing pursuant to Commonwealth v. Feliz, 481 Mass. 689 (2019) (Feliz). We affirm.

Background. On December 20, 2017, a Superior Court jury found the defendant guilty of two counts of rape.¹ He was sentenced to State prison for one of the convictions and to three years of supervised probation, from and after, on the other rape conviction. One special condition of probation was that he be monitored by a global positioning system (GPS) tracking device. The defendant's probationary period began on February 20, 2018.

From 2018 to 2022, the defendant was found in violation of his probation and reprobated on four separate occasions.² On June 30, 2022, the defendant filed a motion to modify the conditions of his probation for out-of-State travel and to remove the GPS condition pursuant to Feliz. On July 1, 2022, the hearing judge, who was not the sentencing judge, allowed the defendant to travel out of State but denied his request to remove GPS monitoring. Four days later, on July 5, 2022, the probation department issued a notice of probation violation alleging that the defendant's whereabouts were unknown and that he had failed to keep his GPS device charged. A warrant was issued for the defendant's arrest.

Over a month later, the defendant was arrested on the warrant and was held in custody pending the final probation-surrender hearing. The probation department issued an amended notice of probation violation for failure to comply with GPS monitoring, failure to comply with sex offender treatment, failure to return to Massachusetts from court-approved travel, unauthorized removal of GPS equipment, and fraudulently acting as an attorney to obtain funds.

A final probation-surrender hearing took place on March 3, 2023, at which the defendant was found in violation of his probation and was sentenced to five to seven years in State prison.

Discussion. 1. Sufficiency of the evidence. The Commonwealth must prove any “violation of probation by a preponderance of the evidence.” Commonwealth v. Bukin, 467 Mass. 516, 520 (2014). “A determination whether a violation of probation has occurred lies within the discretion of the hearing judge.” Id. at 519-520. We ordinarily review an order revoking probation for abuse of discretion to determine “whether the record discloses sufficient reliable evidence to warrant the findings by the judge[, by a preponderance of the evidence,] that [the defendant] had violated the specified conditions of his [or her] probation.” Commonwealth v. Jarrett, 491 Mass. 437, 440 (2023), quoting Commonwealth v. Morse, 50 Mass. App. Ct. 582, 594 (2000). However, when reviewing a judge's decision that is based on a constitutional determination, such as the imposition of a GPS monitoring condition, we conduct an independent review by considering the constitutionality of the search de novo. Commonwealth v. Roderick, 490 Mass. 669, 673 (2022).

There was overwhelming evidence that the defendant violated the terms of his probation. The defendant admitted at the hearing that he cut off his GPS bracelet and that he stopped attending his required sex offender treatment. Additionally, there was sufficient evidence for the judge's finding that the defendant failed to return from court-approved travel, and that he engaged in criminal conduct when he pretended to be an attorney, sent a fraudulent e-mail message and invoice, and demanded payment of $3,500. There was no abuse of discretion in finding the defendant in violation of probation.

2. Double jeopardy. “The double jeopardy principle protects against three specific evils -- a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense” (quotation and citation omitted). Commonwealth v. Brown, 470 Mass. 595, 603 (2015). “[T]here is no double jeopardy protection against revocation of probation and the imposition of imprisonment.” Commonwealth v. Odoardi, 397 Mass. 28, 30 (1986), quoting United States v. DiFrancesco, 449 U.S. 117, 137 (1980).

The defendant argues that his probation “rightfully ended” on June 7, 2022, and that finding violations arising from conduct after that date was improper. This argument is without merit.

On June 7, 2021, the defendant's probation was extended by two years to June 7, 2023, after his admission to violating the terms of his probation. Thus, the term of probation was still active during the March 3, 2023 surrender hearing which is the subject of this appeal. The defendant's contentions that a probation officer committed perjury at his January 28, 2022 surrender hearing -- and that the term of probation was wrongfully extended as a consequence -- is immaterial, as his term already encompassed the March 3, 2023 surrender hearing. Furthermore, the defendant never appealed the findings of the January 28, 2022 hearing, and as such any argument that he should not have been found in violation at that hearing has been waived.³ See Commonwealth v. Hernandez, 441 Mass. 1014, 1014-1015 (2004). There was no violation of the defendant's double jeopardy rights.

3. Sentencing. At the time of the defendant's initial sentencing, GPS monitoring was mandated by G. L. c. 265, § 47. However, the Supreme Judicial Court subsequently held in Feliz that a defendant is entitled to a hearing where a judge must consider the extent to which GPS monitoring would advance the Commonwealth's interests in rehabilitation of the probationer and protection of the public against the incremental privacy intrusion on the defendant's diminished expectations of privacy. Feliz, 419 Mass. at 691.

The defendant argues that his probation resentencing on June 7, 2021, which occurred after Feliz and included an order for GPS monitoring, constituted a violation of his rights pursuant to Article 14 of the Massachusetts Declaration of Rights and the Fourth Amendment to the United States Constitution. We disagree.

The defendant moved to remove the GPS condition of his probation on June 30, 2022. That motion, quoting from Feliz, 481 Mass. at 691, expressly raised the judge's obligation “to conduct a balancing test that weighs the Commonwealth's need to impose GPS monitoring against the privacy invasion” to the defendant. In denying the motion, the judge referenced Feliz as well as Roderick, 490 Mass. at 673, before assuring the parties that his decision was “guided by the law.” The judge is “presumed to know and correctly apply the law,” Commonwealth v. Watkins, 63 Mass. App. Ct. 69, 75 (2005), and we therefore presume that the denial of the defendant's motion was consequent to a Feliz balancing test.

Our independent review confirms that the Commonwealth established that its interest in imposing GPS monitoring for the defendant outweighed the privacy intrusion occasioned by the monitoring considering both the nature of the defendant's convictions and his numerous violations of probation. See Commonwealth v. Johnson, 481 Mass. 710, 719 (2019).

Furthermore, we note that the judge's decision to violate the defendant's probation was supported by multiple violations apart from the GPS violation, as discussed supra. And, the judge made clear that he was sentencing the defendant on the underlying crime, and not the nature of the violations. See Commonwealth v Hamilton, 95 Mass. App. Ct. 782, 785 (2019).

Finally, the defendant did not appeal the judge's denial of the post-Feliz June 7, 2021 order reprobating the defendant. Arguments as to the propriety of that decision are not properly before us and are waived. See Hernandez, 441 Mass. at 1014-1015. Regardless, as we conclude that the judge did properly weigh the Feliz factors when he declined to vacate the GPS condition, there was no error.

Order revoking probation and imposing sentence affirmed.

FOOTNOTES

1.   A panel of this court affirmed the defendant's convictions on November 25, 2019. See Commonwealth v. Lucero, 96 Mass. App. Ct. 1110 (2019).

2.   The defendant never appealed these violations of probation. Any arguments he makes as to those violations have been waived and are not considered in this appeal. See Commonwealth v. Hernandez, 441 Mass. 1014, 1014-1015 (2004).

3.   After a review of the record, we see no merit to the defendant's claim about the probation officer's testimony.