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COMMONWEALTH v. John W. CANADYAN, Jr.
e 574On October 15, 2007, the defendant pleaded guilty in the Chelsea Division of the District Court Department to two counts of indecent assault and battery on a child under the age of fourteen and was sentenced to eighteen months in a house of correction and five years probation. As conditions of probation, the defendant was ordered to stay away from children under the age of eighteen years, undergo sex offender evaluation and e 575treatment deemed necessary, register as a sex offender, provide a deoxyribonucleic acid sample, and wear a global positioning system (GPS) monitoring device.2 On release from the house of correction in December, 2008, the defendant was indigent and residing in a shelter for homeless veterans that could not provide residents with access to a reliable electrical outlet necessary for operating the GPS device.3 The defendant was found to be in violation of the GPS condition of his probation on March 9, 2009.
A disposition hearing was held on March 24, 2009. At that hearing, the court's chief probation officer informed the judge that in the interim an arrangement had been made whereby the defendant was given a GPS device with an extended battery life that could be charged daily at one of the probation department's electronic monitoring (ELMO) offices, and that he was therefore in compliance with the GPS monitoring requirement of his probation even though he continued to reside in a homeless shelter.4 The judge then issued a new order of probation conditions with additional conditions that the defendant (1) make at least two employment efforts per day; (2) participate in the New Directions for Men program; and (3) stay away from the city of Revere, the victim, and the victim's family.
The defendant appeals only from the finding of a probation violation and not from the additional probation conditions.5 We vacate the finding of a probation violation.
e 5761. Background. A detailed recitation of the history of the case is unnecessary. After the defendant was released from prison in December, 2008, he reported to the probation department where he was informed of the specific requirements of the GPS equipment that he would need to wear and maintain during his probationary period. Those requirements included access to either a dedicated telephone line, an electrical outlet, or both. The homeless shelter where he lived was unable to provide access to either.
It is undisputed that the defendant was given an extended deadline to work out this problem. It is further undisputed that he and the probation department both worked diligently and in good faith to explore other housing options and alternative technological solutions to no avail (at least until after he was found to be in violation of his probation). In spite of these efforts and without a workable solution, the probation department issued a notice of violation in February, 2009.
At the hearing that followed the notice of violation, evidence regarding the widespread inability of homeless shelters to provide the necessary technical support for persons subject to GPS monitoring was presented,6 as was specific evidence with respect to the defendant's efforts to secure alternate housing.7 There was no evidence that the defendant had been anything but cooperative with the probation department, had violated any of the other conditions of his probation, or had wilfully remained homeless for the purpose of evading the GPS monitoring condition of his probation.
e 577In the course of the revocation proceedings, the judge questioned whether the defendant had made an adequate effort to gain employment. The defendant then adduced evidence of the efforts that he had made (and was continuing to make) both personally and through counsellors to obtain employment.8 After receiving this evidence, the judge concluded that the defendant's efforts were below what she requires when employment is made a condition of her probation orders. At the conclusion of the revocation hearings, she found that the defendant was in violation of the GPS condition of his probation without excuse insofar as he had failed to make sufficient efforts to find employment that might have enabled him to secure housing that would have met the requirements of the probation department's GPS system.
2. Discussion. The facts and circumstances of this case bring more fully into view a tension between mandatory GPS monitoring of sex offenders released on probation, see G.L. c. 265, § 47, and the practical reality of homelessness-a circumstance facing an increasing number of former sex offenders.
The GPS mandate of G.L. c. 265, § 47, is part of a regime of legislatively enacted requirements intended to protect the public from persons who have committed sex offenses and may reoffend. See also G.L. c. 6, § 178K (establishing sex offender registry board). While these laws plainly serve a public purpose, they also affect the ability of former sex offenders to reintegrate into the work force and into the community. One of the consequences has been an increase in homelessness among such persons,9 a circumstance that, as demonstrated in this case, e 578makes GPS monitoring utilizing the probation department's currently available technology both problematic and challenging.
This larger problem is not one that can be, or need be, solved in this case.10 Although the Commonwealth met its burden of proving, see Commonwealth v. Holmgren, 421 Mass. 224, 226, 656 N.E.2d 577 (1995), that the defendant had not met the GPS condition of his probation, the record also makes apparent that the defendant met his consequent burden of demonstrating that his failure to comply with the GPS condition-given the original GPS technology he was required to use-was through no fault of his own. Commonwealth v. Marvin, 417 Mass. 291, 296-297, 629 N.E.2d 1317 (1994) (Liacos, C.J., dissenting), quoting Black v. Romano, 471 U.S. 606, 612, 105 S.Ct. 2254, 85 L.Ed.2d 636 (1985) (“probationer is entitled to an opportunity to show not only that he did not violate the conditions [of probation], but also that there was a justifiable excuse for any violation or that revocation is not the appropriate disposition”). We reach this conclusion on the basis of the undisputed evidence that homeless shelters would not, and, as a practical matter, could not accommodate the technological requirements of the GPS equipment offered to the defendant by the probation department, and that the defendant had in good faith diligently explored other living arrangements and alternative GPS technologies to no avail. In these circumstances, where there was no evidence of wilful noncompliance, a finding of violation of the condition of wearing an operable GPS monitoring device was unwarranted, and is akin to punishing the defendant for being homeless. Cf. Bearden v. Georgia, 461 U.S. 660, 669 n. 10, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983) (“basic fairness forbids the revocation of probation when the probationer is without fault in his failure to [comply]”).
It was also error for the judge to find that the defendant had e 579violated the GPS condition of his probation by not, in the judge's estimation, making sufficient efforts to find employment. Securing employment was not a condition of probation. See Commonwealth v. Ruiz, 453 Mass. 474, 479, 903 N.E.2d 201 (2009) (“Due process ․ requires that a defendant sentenced to probation receive fair warning of conduct that may result in the revocation of probation”). While the inability to utilize the GPS monitoring equipment due to homelessness may be a “material change in the probationer's circumstances” warranting modification of the conditions of probation to include obtaining employment (or making a specific level of effort to secure employment), see Commonwealth v. Goodwin, 458 Mass. 11, 18, 933 N.E.2d 925 (2010), the judge here essentially collapsed the GPS condition and employment into a single condition. That was error.11
3. Conclusion. For the reasons stated, we set aside the finding that the defendant violated the GPS monitoring condition of his probation.
So ordered.
CORDY, J.
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Decided: December 21, 2010
Court: Supreme Judicial Court of Massachusetts,Suffolk.
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FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
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