COMMONWEALTH v. KEION ROWELL (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The probationer, Keion L. Rowell, appeals from an order of a District Court judge revoking his probation and committing him to serve one year in the house of correction. After a hearing, the judge found that the probationer had violated the conditions of his probation by violating the criminal laws. On appeal, the probationer argues that his due process rights were violated and that the judge abused his discretion in finding him in violation of probation because the evidence was insufficient to establish that he had committed new criminal offenses. We affirm.

Background. In December 2019, the probationer pleaded guilty in the District Court to leaving the scene of property damage and negligent operation of a motor vehicle. He was sentenced to one year in the house of correction, suspended for eighteen months, and was placed on probation until June 2021. One of the conditions of his probation was that he obey all court orders and all State and Federal laws.

On August 25, 2020, a non-bailable warrant and notice of probation violation were issued alleging that the probationer had violated the terms of his probation by committing a drug offense in the State of New Hampshire. The warrant remained in effect until December 20, 2024, when the probationer appeared at the Dedham Division of the District Court Department, and was served in hand an amended notice of violation alleging that he had been charged with two additional offenses in the District Court and the Boston Municipal Court (first amended notice).¹ The notice was amended once more alleging an additional offense of reckless conduct involving a 2020 high-speed chase in New Hampshire (second amended notice).

A probation hearing was held in January 2025 and concluded on February 27, 2025. At the hearing, a Massachusetts State police trooper testified, and several police reports were admitted in evidence. The trooper testified that on August 21, 2020, at about 1 P.M., he was on Interstate Highway 93 South in Methuen when he received a broadcast to be on the lookout for a Nissan with a Florida license plate that was being pursued by New Hampshire authorities. The trooper saw the vehicle and activated his lights and siren. The driver failed to stop, driving aggressively and at speeds over one hundred miles per hour. The pursuit was suspended due to safety concerns. The trooper did not personally interact with the driver of the vehicle, but the probationer was issued a summons to appear in court for the motor vehicle offenses. The trooper's police report was admitted in evidence, as well as several police reports from New Hampshire police officers detailing the high-speed chase of the probationer and describing two controlled purchases of “crack” cocaine between a confidential informant and the probationer.

The probationer was found in violation based on the sale of controlled substances in New Hampshire, the negligent operation of a motor vehicle, speeding, and the failure to stop for a police officer in Massachusetts, and reckless conduct with a deadly weapon in New Hampshire.

Discussion. The probationer asserts two errors in his probation revocation hearing. First, that his due process rights were violated by insufficient notice of the violation and by unreasonable delay of the probation revocation hearing and, second, that the evidence was insufficient to prove that he was the person who had committed the new offenses. We review a judge's finding of a probation revocation for an abuse of discretion. See Commonwealth v. Durling, 407 Mass. 108, 111 (1990). The probationer did not raise his due process arguments previously, so as to those arguments, “[w]e apply the standard of review applicable to issues not properly preserved for appeal, determining whether an error occurred and, if so, whether it created a substantial risk of a miscarriage of justice.” Commonwealth v. Santana, 489 Mass. 211, 218 (2022).

1. Due process violations. “A probation violation proceeding is not the equivalent of a criminal trial, and thus a probationer is not accorded ‘the full panoply of constitutional protections applicable at a criminal trial.’ ” Commonwealth v. Hartfield, 474 Mass. 474, 479 (2016), quoting Durling, 407 Mass. at 112. Thus, to comply with due process, a probationer must, among other things not challenged here, be provided with “written notice of the claimed violations of [probation or] parole.” Durling, supra at 113, quoting Gagnon v. Scarpelli, 441 U.S. 778, 786 (1973).

The probationer contends that he was not provided service of the original notice of probation violation. We are unpersuaded, because the record evidence shows that after the issuance of the probation warrant, the probationer was in warrant status for over three years. His first appearance in the District Court was on December 20, 2024, where he was provided in hand service of the first amended notice of violation. Therefore, he was properly served notice of the alleged violations and any alleged defects with the original notice were cured when he was served in hand with the first amended notice. See Dist./Mun. Cts. R. Prob. Viol. P. 4(b) (2015) (“Upon the probationer's first appearance before the court [after issuance of a probation warrant], the probationer shall be served in hand with the notice of violation”).

Next, the probationer claims that his due process rights were violated because the probation revocation hearing commenced three years after his probationary term was set to terminate. A judge may revoke probation after the probationary period ends for violations that occurred during probation for a reasonable time after the period expires. Commonwealth v. Sawicki, 369 Mass. 377, 380 (1975) (courts are “not disabled by the expiration of the term from acting on the basis of in-term violations”). “What is reasonable is determined on a case-by-case basis.” Commonwealth v. Collins, 31 Mass. App. Ct. 679, 681 (1991).

Here, the probation warrant was issued in 2020, and the probationer was in warrant status until 2024. After the warrant was issued, the probationer was charged with new offenses in multiple courts where warrants were issued after he failed to appear. It was not until December 2024 that the probation department learned of the probationer's updated address from the State police. Therefore, the delay in commencing proceedings cannot be considered unreasonable where the probation department did not contribute to the delay. See Commonwealth v. Baillargeon, 28 Mass. App. Ct. 16, 20-21 (1989) (concluding delay reasonable where probationer not forthcoming about his location and probationer committed crimes in another State).

2. Sufficiency of the evidence. “At a probation violation hearing, the Commonwealth bears the burden of proving a violation of a condition of probation by a preponderance of the evidence.” Commonwealth v. Jarrett, 491 Mass. 437, 445 (2023). Where revocation of probation is based on a violation of a 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 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, citing Durling, 407 Mass. at 111-112. The judge's decision to revoke probation and the underlying evidentiary rulings are reviewed for an abuse of discretion. See Commonwealth v. Rainey, 491 Mass. 632, 648 (2023).

In a probation violation hearing, a judge may rely on hearsay evidence if it is reliable. See Durling, 407 Mass. at 118. “[W]hen hearsay is offered as the only evidence of the alleged violation, the indicia of reliability must be substantial.” Id. See Hartfield, 474 Mass. at 484. “The proper inquiry is whether the hearsay evidence itself had substantial indicia of reliability establishing good cause for overcoming the need for confrontation.” Commonwealth v. Negron 441 Mass. 685, 690 (2004). To make such a determination,

“a hearing 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.”

Hartfield, supra.

The probationer argues that the judge abused his discretion in finding sufficient evidence to prove that the probationer was the person who committed the new criminal offenses. He contends that additional biographical data was required to prove that he committed the drug offenses and motor vehicle offenses in Massachusetts and New Hampshire. We disagree.

The evidence sufficiently established that the probationer was the same person involved in the motor vehicle stop and the high-speed chase in New Hampshire and Massachusetts. The New Hampshire police officer wrote a report identifying the probationer as the driver of the Nissan with a Florida license plate. The driver, who was the sole occupant, identified himself as the probationer and produced a Massachusetts driver's license in the probationer's name. Once the police officer learned that the driver had outstanding warrants, the officer asked him to get out of the vehicle. The driver refused and dragged the officer a few feet before leaving at a high rate of speed. This evidence is sufficient to establish the probationer's identity in the motor vehicle offenses.²

In addition, the Massachusetts State trooper's testimony at the hearing was internally consistent with his police report. He saw the same Nissan with the Florida license plate being pursued by the New Hampshire authorities. The evidence was sufficient to establish that the probationer was the same person driving the motor vehicle in New Hampshire and Massachusetts.

Moreover, the judge correctly determined that the hearsay in the police reports were based on direct observations of officers, who were disinterested and recorded the information close in time to the incident. Taken as a whole, these reports meet the factors for reliability, and we discern no abuse of discretion in the judge's determination. See Jarrett, 491 Mass. at 444 (“Police officers may be the only witnesses at probation violation hearings, even where they report on statements by others, and the proceeding may still comport with due process”).

Order revoking probation and imposing sentence affirmed.

FOOTNOTES

1.   The first amended notice included the charge of assault and battery on a household or family member. That charge was not included in the final hearing.

2.   Because we conclude that the judge properly determined that the probationer had committed numerous criminal motor vehicle offenses, and thus violated his probation, we need not reach the evidence regarding the controlled drug purchases, although we discern no error in its admission.