Opinion
13-P-1564
03-27-2015
COMMONWEALTH v. BADER AL SAUD.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Bader Al Saud, appeals the denial of his motion to correct the written portion of his sentence and to vacate the default probation warrant. The defendant argues that the docket and the conditions of probation include errors that must be corrected pursuant to either Mass.R.Crim.P. 42, 378 Mass. 919 (1979); Mass.R.Crim.P. 30(a), as appearing in 435 Mass. 1501 (2001); or Mass.R.Crim.P. 30(b). There was no clerical error in recording the defendant's sentence. We affirm.
Before this motion was filed and in response to a notice of surrender alleging probation violations, the defendant filed a motion to "dismiss" his probation. Orders entered denying that motion and allowing the Commonwealth's motion for the issuance of a default warrant. The defendant appealed these orders and the orders were subsequently affirmed by the Supreme Judicial Court. See Commonwealth v. Al Saud, 459 Mass. 221, 225, 234 (2011).
Contrary to the defendant's assertion, the judge did not expressly make probation contingent on the defendant staying in the country. The judge stated on the record that she "intend[ed] and w[ould] adopt the recommendation jointly put before the court." The judge further stated that "[i]n regard to [the] sentence, I will adopt the recommendation of two years in the [h]ouse of [c]orrection with one year to be served and the balance suspended for two years." In its sentencing memorandum, the Commonwealth had proposed that the defendant "be sentenced to two years in the [h]ouse of [c]orrection with one year to be served, said year being subject to the parole-eligible misdemeanor component of the [homicide by motor vehicle] statute, and the balance of the sentence be suspended for a period of two years['] probation commencing upon release from incarceration." Finally, in the defendant's "memorandum in aid of disposition," he had represented that
"[t]he Commonwealth and the defendant's counsel will jointly recommend to the [c]ourt a sentence of two years committed to the [h]ouse of [c]orrection, one non-mandatory year to serve, the balance of the sentence suspended for two years['] probation upon release, with concurrent time on the other indictment. In lieu of deportation, the parties agree that defendant's counsel will seek to arrange for his leaving the United States via 'voluntary departure' of aliens at their own expense, upon the completion of his sentence of incarceration and parole, if applicable, at the conclusion of his one non-mandatory year to serve."None of these statements concerning what was proposed, and therefore adopted, indicated that the probationary term and conditions were only to be imposed if the defendant remained in the United States. Furthermore, the judge's statement on the record after she adopted the above-mentioned proposal does not state that the judge ordered the probationary conditions to be contingent upon the defendant remaining in the United States.
The judge stated:
"As a condition upon his release, subject to what [the Federal government] does in regard to his deportation, if he is in this country, he is to participate in all conditions of probation, including but not limited to alcohol treatment, and he is to remain alcohol free and to be tested accordingly. I cannot control what [the Federal government] does with Mr. Al Saud and whether they put a detainer on him and take him out of this country upon his release from the [h]ouse of [c]orrection or not. But if he is here, he is a probationer and to [sic] comply with all conditions of probation."This statement did not suggest that no conditions of probation would apply if he were deported or given permission to depart voluntarily.
"Rule 42 . . . provides a procedure to correct clerical errors in court judgments or records of an otherwise legal sentence imposed by a judge . . . ." Commonwealth v. Melo, 65 Mass. App. Ct. 674, 676 (2006). See Mass.R.Crim.P. 42 ("Clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party . . ."); Commonwealth v. Miranda, 415 Mass. 1, 5 (1993) (rule 42 cannot be used to correct "errors of substance").
Here, the judge did not state that she ordered the conditions of probation to be contingent upon the defendant staying in the United States. The judge also did not add this allegedly intended conditional component to his sentence when she approved and signed the probation contract. There is no clerical error or omission to correct and, therefore, there was no error in the sentencing judge's denial of relief pursuant to rule 42. Cf. Mass.R.A.P. 8(e), as amended, 378 Mass. 932 (1979) ("If any difference arises as to whether the record truly discloses what occurred in the lower court, the difference shall be submitted to and settled by that court and the record made to conform to the truth").
Further, as the defendant concedes, there was no per-se illegal sentence, and, as we explained supra, the sentence did not contain the error alleged by the defendant. Therefore, the denial of relief pursuant to rule 30(a) was proper.
The defendant's request for relief pursuant to rule 30(b) was also properly denied. The defendant is not seeking a remedy available under rule 30(b), a new trial or the withdrawal of his guilty plea. See Commonwealth v. Azar, 444 Mass. 72, 77 (2005) (despite bringing a rule 30[b] motion, the defendant "[did] not want the new trial that would result from the granting of a rule 30[b] motion" but instead was challenging his sentence and, therefore, the motion was treated as "one properly brought under rule 30[a]"). Further, the ineffective assistance of counsel claim that the defendant advances is based upon alleged errors that resulted in the beginning of the probation violation process and the issuance of a default warrant. Any challenge to that proceeding is premature. See Commonwealth v. Al Saud, 459 Mass. 221, 226 (2011) ("Because the judge may find a violation but impose no punishment for it, a finding of a violation is an interlocutory ruling and hence not appealable"). Finally, the due process claims that the defendant raises for the first time on appeal are similarly premature. As a result, we do not need to address these arguments. However, these arguments appear to be substantially similar to the arguments that were already rejected by the Supreme Judicial Court and nothing brought before this court alters the analysis that the contract of probation combined with the sentencing recommendations that were adopted by the court provided the defendant with fair notice of the conditions which he was found to have violated. See id. at 232-233 (defendant "was made aware of, and agreed in writing to, the conditions of his probation on the day of his guilty plea, more than eight months before he left the country").
Finally, we reiterate that there is a process, aside from filing further motions to attempt to vacate probation, that can be used to obtain an appealable final disposition. As the Supreme Judicial Court clearly explained: "Final judgment is not 'unavailable' and may enter in this case if the defendant returns to the United States. Moreover, if he wishes to resolve the matter without seeking reentry, he can waive his right to be present at the final revocation hearing." Commonwealth v. Al Saud, 459 Mass. 221, 228 (2011).
Order denying motion to correct sentence and vacate default probation warrant affirmed.
By the Court (Kantrowitz, Trainor & Fecteau, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: March 27, 2015.