Opinion
15-P-671
04-14-2016
COMMONWEALTH v. ROBERT JENNINGS.
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, Robert Jennings, appeals from an order of a judge of the District Court finding that he violated the terms of his probation and imposing additional conditions of probation.
Background. On March 7, 2014, the defendant pleaded guilty to operating a motor vehicle while under the influence of alcohol (OUI), third offense. He was sentenced to one year in the house of correction, with six months to serve, and the balance suspended for two years. The terms of the defendant's probation, as indicated on the docket and a signed order of probation conditions, were as follows: statutory eight-year loss of license, substance abuse evaluation/treatment, attendance at Alcoholics Anonymous (AA) meetings three times weekly, and obtaining an AA sponsor. Shortly after the defendant was released, he completed the substance abuse evaluation and on September 13, 2014, a recommendation was made that he submit to random alcohol screens through the probation department. The defendant and the probation officer thereafter signed a "Drug/Alcohol Testing" form that set forth the procedure for the random screens.
Findings of responsible were filed on charges of possession of alcohol in a motor vehicle and a marked lanes violation.
The order was signed by the plea judge, a probation officer, and the defendant.
On November 20, 2014, a violation of probation notice issued after the defendant tested positive for alcohol. Following a hearing, a judge, who was not the plea judge, found the defendant in violation of the terms of his probation. He reprobated the defendant to the original probation termination date with additional conditions, including screens by a sobrietor installed in the defendant's home, remaining alcohol free, possessing no alcohol, entering no establishments whose primary purpose is to sell or serve alcohol, attending and completing an outpatient program, and seeking and maintaining work.
The notice of violation also alleged a failure to pay certain fees, but the probation officer did not go forward on this allegation.
A sobrietor is a remote breath-alcohol monitoring device.
Discussion. The defendant claims it was error to find him in violation of his probation as alcohol screens were not expressly made a condition of probation by the plea judge. The Commonwealth concedes the error and we agree. See Commonwealth v. Lally, 55 Mass. App. Ct. 601, 603-604 (2002) (vacating order revoking defendant's probation where random urine screens for drugs and alcohol were not made an explicit condition of probation).
Nevertheless, we conclude that the additional conditions imposed on the defendant at the hearing may stand, where the positive alcohol screen was, in substance, proof of a material change in circumstances. See Commonwealth v. Goodwin, 458 Mass. 11, 18-19 (2010); Commonwealth v. Indelicato, 77 Mass. App. Ct. 182, 183 (2010) (where defendant taken into protective custody due to intoxication, material change in circumstances found to allow additional alcohol-related conditions of probation). Contrary to the defendant's argument, the additional conditions of probation imposed were well within the judge's discretion, not excessively punitive, and rationally related to the primary goals of rehabilitating the defendant and addressing public safety concerns. See Commonwealth v. Pike, 428 Mass. 393, 403 (1998); Commonwealth v. Morales, 70 Mass. App. Ct. 839, 844 (2007). Specifically, where the defendant here had pleaded guilty to a third OUI offense, and had tested positive for alcohol, the conditions addressed his apparent substance abuse issues and served to protect the public from the consequences of his intoxication. See Commonwealth v. Williams, 60 Mass. App. Ct. 331, 333 (2002).
Conclusion. So much of the order dated December 30, 2014, as revokes the defendant's probation is vacated. The remainder of the order, adding probation conditions, is affirmed.
So ordered.
By the Court (Blake, Kinder & Neyman, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: April 14, 2016.