COMMONWEALTH v. DAVID CONCEPCION (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

David Concepcion (probationer) appeals from a District Court order revoking his probation and committing him to serve eighteen months in the house of correction. The judge found that the probationer had violated the conditions of his probation by violating a G. L. c. 209A abuse prevention order. On appeal, the probationer argues that the judge abused her discretion and violated his due process rights by relying on unreliable hearsay in the form of a police report and finding that the report sufficiently established a c. 209A violation. We agree.

Background. 1. Facts. In August 2023, the probationer pleaded guilty to two criminal complaints, one charging criminal harassment and the other charging assault and battery on a family or household member. The probationer received concurrent sentences of two years of probation, ending on September 2, 2025. One of the conditions of probation was that the probationer obey all court orders and all State and Federal laws.

In January 2025, a Lynn police officer took the statements of I.A. and E.S. I.A. stated that she had a c. 209A order against the probationer, her ex-boyfriend, and that the probationer had violated the order on six separate occasions between late December 2024 and early January 2025. Specifically, the police report alleged that (1) the probationer sent a text message to I.A.; (2) I.A. saw the probationer “only a few feet away from her” near her home; (3) the probationer left a voicemail with I.A.’s daughter, who was reportedly named on the abuse prevention order; (4) a neighbor informed I.A. that the probationer was within 100 yards of I.A.’s house; (5) E.S. saw the probationer outside I.A's house; and (6) I.A. saw a man she believed to be the probationer within 100 yards of her home. I.A. presented the police officer with screenshots of conversations allegedly between I.A. and the probationer as well as photographs from her home security camera of a male, whose face was not visible, whom I.A. believed was the probationer. The probationer was ultimately charged with five new criminal offenses, each as a single violation of c. 209A.¹ A probation violation notice issued alleging that the probationer had violated a criminal law.

2. Probation violation hearing. A probation violation hearing was held on February 4, 2025. The probationer's probation officer (probation officer) submitted three exhibits: (1) the police report, described supra, (2) the probationer's conditions of probation, and (3) the notice of probation violation and hearing.² The probation officer did not introduce as evidence the c. 209A order at issue.

At the hearing, neither I.A., E.S., nor the police officer who took their statements testified.³ The probation officer was the only witness, and testified that he did not know when the abuse prevention order was issued or the conditions of the order, and that he did not speak with I.A. or summons her. The probation officer also testified that he did not review the video recordings, text messages, or voicemail on which the police report was based. The judge found the probationer in violation of probation on all five new charges, revoked his probation, and sentenced him to eighteen months in the house of correction. On May 6, 2025, the probationer pleaded guilty to the charge in Docket No. 2513CR000110, and the remaining four new complaints were dismissed.

Discussion. 1. Mootness of the appeal. Following oral argument, we invited the parties to submit memoranda to address whether the probationer's guilty plea as to one of the five new criminal complaints rendered this appeal moot. For the reasons that follow, we conclude that the appeal is not moot.

Probation violation proceedings involve a two-step process. See Commonwealth v. Pena, 462 Mass. 183, 187 (2012). First, the judge “must determine, as a factual matter, whether the defendant has violated the conditions of his probation” (citation omitted). Id. If the judge determines that the defendant has violated his probation, the second step is for the judge to determine the disposition -- the judge may either revoke probation and sentence the probationer or modify the terms of probation. See Id.

“[A] case becomes moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome” (quotation and citation omitted). Pena, 462 Mass. at 186. However, even though “a conviction or guilty plea to a subsequent crime renders moot an appellate claim that a judge erred in making the factual determination that a probationer violated the terms of his probation,” Commonwealth v. Milot, 462 Mass. 197, 201 (2012), a subsequent guilty plea or conviction “does not render moot a claim that some aspect of the proceeding violated the probationer's constitutional rights, because it ‘potentially impact[s]’ the second step of the process, i.e., the disposition.” Id., quoting Pena, supra at 188.⁴

Here, while this case was on appeal, the probationer pleaded guilty only as to one of the five criminal complaints underlying his probation violation. The remaining four complaints were dismissed. The probationer's plea “renders moot the claim that the hearsay was unreliable” only as to the probation violation found in Docket No. 2513CR000110. Milot, 462 Mass. at 202. Because the judge's disposition on the probation revocation was based on the alleged violations charged in all five criminal complaints, the judge's exercise of discretion in fashioning a disposition was “less than fully informed.” Pena, 462 Mass. at 189. As such, the probationer may have been “denied the opportunity to persuade the judge to reach a different dispositional result.” Id. Accordingly, the issues the probationer raises as to the other four probation violations remain and are not moot. See id.⁵

2. Probation violation. Any “violation of probation” must be proven “by a preponderance of the evidence.” Commonwealth v. Bukin, 467 Mass. 516, 520 (2014). The determination that a probation violation occurred “lies within the discretion of the hearing judge,” who must assess the weight of the evidence against the defendant. Id. Accordingly, we review an order revoking probation for an abuse of discretion. See id. at 521.

Although a probation violation hearing is not a “new criminal prosecution” because the Commonwealth has already proven guilt beyond a reasonable doubt for the underlying offense, such a hearing still “implicates due process rights because a finding of a probation violation may result in a loss of liberty.” Pena, 462 Mass. at 190. Due process requires that a defendant have an opportunity to present and cross-examine witnesses and receive a “written statement” by a “neutral” fact finder regarding the “evidence relied on and reasons for revoking” probation. Commonwealth v. Durling, 407 Mass. 108, 113 (1990), quoting Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973). These due process requirements, however, are designed to be flexible, and to help ensure, inter alia, that the judge “accurate[ly]” determines “whether revocation [is] proper” in the defendant's situation. Commonwealth v. Morse, 50 Mass. App. Ct. 582, 594 (2000).

a. Reliability of hearsay. The probationer contends that the hearing judge violated his due process rights by revoking his probation based solely on the unreliable hearsay in the police report. We agree.

Hearsay evidence is admissible at probation violation hearings, at which strict evidentiary rules do not apply. See Durling, 407 Mass. at 114. Where the Commonwealth or a probation officer seeks to rely on hearsay to demonstrate a probation violation, that evidence may be admitted and relied on in a revocation of probation proceeding if it “bears substantial indicia of reliability and is substantially trustworthy.” Id. at 118. Put another way, it must be “substantially reliable.” Commonwealth v. Rainey, 491 Mass. 632, 648 (2023). When determining whether hearsay evidence is substantially reliable, a judge may consider

“(1) whether the evidence is based on personal knowledge or direct observation; (2) whether the evidence, if based on direct observation, was recorded close in time to the events in question; (3) the level of factual detail; (4) whether the statements are internally consistent; (5) whether the evidence is corroborated by information from other sources; (6) whether the declarant was disinterested when the statements were made; and (7) whether the statements were made under circumstances that support their veracity” (citation omitted).

Commonwealth v. Ogarro, 95 Mass. App. Ct. 662, 668 (2019). When relying on hearsay in finding a violation of probation, the judge must explain “in writing or on the record why the judge found the hearsay evidence to be reliable.” Id., quoting Commonwealth v. Hartfield, 474 Mass. 474, 485 (2016). “We review a judge's determination that hearsay is substantially reliable, like other evidentiary decisions, under an abuse of discretion standard.” Rainey, supra.

Here, the judge found the police report to be substantially reliable because it (1) was “based on personal knowledge and/or direct observation,” (2) “involves observations recorded close in time to the events in question,” (3) “was provided under circumstances that support the veracity of the source,” and (4) “is factually detailed.” We disagree.

The police report, on which the judge primarily relied in finding the probationer in violation of probation, did not contain the necessary indicia of reliability. The report was based solely on statements I.A. and E.S. made to the Lynn police officer alleging that the probationer had violated a c. 209A order. The police did not see the probationer commit the incidents alleged or further investigate the allegations. Compare Commonwealth v. Wilson, 47 Mass. App. Ct. 924, 925 (1999) (police report on which judge relied in revoking defendant's probation was not “substantially trustworthy” or “demonstrably reliable” because “the police report was nothing more than an account of [the victim's] statement” and “[t]here were no indicia of reliability -- no observations of the police, no corroboration, no investigation”), with Durling, 407 Mass. at 120-122 (probation validly revoked on basis of two police reports where reports were factually detailed, based on personal knowledge, and tended to corroborate each other). Indeed, the police officer did not determine whether the person depicted in the screenshots and video recordings I.A. shared was the probationer, noting “I.A. told me she believed it was [the probationer] each time but it is hard to tell as the person's face is covered.”

Second, the probation officer presented no evidence at the hearing corroborating the victim's statements. The only witness was the probation officer, who testified to the reported incidents based solely on his review of the police report. The probation officer did not witness any of the alleged incidents. See Commonwealth v. Ortiz, 58 Mass. App. Ct. 904, 906 (2003) (evidence not sufficiently reliable where “officer's testimony was nothing more than a repetition of what he had been told by the complainant”). He also testified that he did not speak with I.A. or E.S., or review the video footage, text messages, or voicemail on which the police report was based. Unlike in Durling, 407 Mass. at 110, where the probation officer read from two police reports at the hearing, the probation officer here submitted a single police report summarizing the victim's statements without any corroborating evidence.

Third, the judge identified no basis to find violations independent of the hearsay in the police report, stating only that the probationer had violated the terms of his probation “[b]ased on all the evidence provided,” including the police report and the probationer's conditions of probation and notice of probation violation. The record does not support the judge's finding that the probation department presented substantially reliable hearsay evidence regarding the probationer's probation violations.

b. Sufficiency of the evidence. Where revocation of probation is based on a violation of criminal law, as is the case here, the judge revoking probation need only find by a preponderance of the evidence that the probationer committed a new criminal offense. See Bukin, 467 Mass. at 520. “To establish a violation of G. L. c. 209A, § 7, the Commonwealth must prove that (1) a valid G. L. c. 209A order was issued by a judge, (2) the order was in effect on the date of the alleged violation, (3) the defendant had knowledge of the order, and (4) the defendant violated the order.” Commonwealth v. Telcinord, 94 Mass. App. Ct. 232, 235 (2018). Here, the probationer contends that the judge erred in finding that he violated a c. 209A order because there was insufficient evidence to prove that the order was in effect at the time of the allegedly violative conduct, he violated the order, and he had knowledge of the terms of the order. We agree.

The probation officer did not introduce the c. 209A order at the probation violation hearing, and the order is not included in the record for this court's review. Thus, any information about the order derives from the police report. However, that information is severely limited, as the report does not define the conditions of the abuse prevention order or state whether the probationer received proper notice of the order. Furthermore, there is no indication in the police report that the officer independently checked either the status or conditions of the c. 209A order. Instead, the police report merely states that “[I.A.] has a restraining order against her ex-boyfriend.” At the hearing, the probation officer testified that he did not know the conditions of the c. 209A order or when it was issued, and offered no testimony as to when or if the probationer was served. As such, the judge was left to infer from the police report that the order was in place at the time of I.A.’s statements, the probationer's actions violated the conditions in the order, and the probationer had received the c. 209A order. Without more, the judge's finding that the probationer violated a c. 209A order based on five separate new charges was an abuse of discretion.

Conclusion. So much of the February 4, 2025 order as finds that the probationer violated probation based on the charge to which he pleaded guilty is affirmed. The remaining findings of violation are vacated. The sentence is vacated and the case is remanded to allow the judge to consider the appropriate disposition of the probationer's remaining violation. See Commonwealth v. King, 96 Mass. App. Ct. 703, 712 (2019) (“it is not for [this court] to speculate what action the judge would have taken had he found that the defendant violated probation” on one and not two occasions).

So ordered.

FOOTNOTES

1.   Criminal Docket Nos. 2513CR000105, 2513CR000106, 2513CR000107, 2513CR000109, and 2513CR000110.

2.   No assistant district attorney participated in the hearing.

3.   The probation department requested additional time to summons I.A. The judge denied the request after defense counsel objected to a continuance because the probationer was being detained on the violation of probation.

4.   In assessing mootness, we note the Supreme Judicial Court's acknowledgment that “Whether the term ‘moot,’ ․ is entirely apt in the circumstances [where a probationer pleaded guilty to the charges that form the basis of the probation revocation] is perhaps debatable. Nonetheless, there does not seem to be a better operative term ․” Pena, 462 Mass. at 187 n. 5.

5.   Nor is the appeal moot because the defendant has served the balance of his sentence, as a probation revocation may have collateral consequences. See Commonwealth v. Kendrick, 446 Mass. 72, 73 n.1 (2006).