Opinion
14-P-785
08-12-2015
COMMONWEALTH v. JAMES P. MCCALL.
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
On March 23, 2012, the defendant was convicted of assault and battery. After he started his probation, a probation revocation hearing was held on October 28, 2013. A District Court judge ordered the defendant to, as a condition of his probation, enter and complete a Salvation Army work program (program). On November 15, 2013, another probation revocation hearing was held and a different District Court judge revoked the defendant's probation for failing to enter and complete the program and for having his whereabouts unknown. Not disputing that he failed to complete the program, the defendant appeals, arguing that, from the outset, it was impossible to fulfill his probation conditions and, therefore, his due process rights were violated. He contends that the revocation order should be reversed because the condition to enter and complete the Salvation Army program was impossible for him to fulfill, and that the finding that his whereabouts were unknown was against the weight of the evidence. We affirm.
He received a two and one-half year sentence in a house of correction, with one year to be served and the balance to be suspended for two and one-half years.
"A determination of whether a violation of probation has occurred lies within the discretion of the hearing judge." Commonwealth v. Bukin, 467 Mass. 516, 520 (2014), citing Commonwealth v. Durling, 407 Mass. 108, 111-112 (1990). The question here is whether the judge abused his discretion in finding, by a preponderance of the evidence, that the defendant violated his probation. See Commonwealth v. Nunez, 446 Mass. 54, 59 (2006). The "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 . . . ." Commonwealth v. Marvin, 417 Mass. 291, 296-297 (1994), quoting from Black v. Romano, 471 U.S. 606, 612 (1985).
We conclude that the judge was within his discretion to find the violation and revoke the defendant's probation. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). The judge was entitled to determine the credibility of both witnesses at the hearing, the probation officer and the defendant. See Commonwealth v. Morse, 50 Mass. App. Ct. 582, 592 n.13 (2000), citing Commonwealth v. Tate, 34 Mass. App. Ct. 446, 449-450 (1993) ("The judge was not required . . . to accept any of the exculpatory reasons offered by the defendant"). The probation officer and the defendant both testified, with some conflicting statements, as to whether and when the defendant had gone to the program, when he left the program, and whether it was possible for him to have completed the program. The defendant claimed compliance was impossible because he did not have a thirty-day supply of his medicine as the program required, he was unable to do the work required by the program, and he could not afford the program fee. While a probationer cannot be found to be in violation of his probation if the condition cannot be met despite a concerted effort to comply, see Commonwealth v. Poirier, 458 Mass. 1014, 1016 (2010), it was within the judge's discretion to determine that the record did not support that the condition could not be met or that the defendant made a concerted effort to meet it. Cf. Commonwealth v. Canadyan, 458 Mass. 574, 576-578 (2010) (evidence was presented regarding the unavailability of technical support required to fulfill probation obligations, and defendant met burden of proving failure to comply was through no fault of his own). The judge's statement, made after hearing this testimony, that "based upon the testimony of this probation officer, I find that [the defendant] is in violation of his probation," makes clear that in finding the violation, the judge credited the probation officer's testimony over the defendant's testimony, as was within his discretion. See Commonwealth v. Bernard, 84 Mass. App. Ct. 771, 774 (2014).
The defendant cites Commonwealth v. Al Saud, 459 Mass. 221, 231 (2011), to support his argument that his due process rights were violated because compliance was impossible. His reliance on this case is misplaced. In Al Saud, the defendant was in United States Immigration and Customs Enforcement custody and left the country, making it impossible for him to comply with several of his probation obligations, but allowing him to comply with others. Al Asaud did not dispute his failure to comply. Id. at 229. The Supreme Judicial Court affirmed the finding of the violation because it was based on the obligations with which it was possible to comply. Id. at 232.
Furthermore, here, even assuming arguendo that compliance with the program was impossible, a second ground for revocation apparent from the record is based on the defendant's violation of having his "whereabouts unknown." The probation officer testified that he did not know where the defendant was, and this testimony was credited by the judge. As in Commonwealth v. Al Saud, 459 Mass. 221, 231 (2011), the record does not support that the defendant attempted in good faith to contact his probation officer to "explain his situation, even by telephone." See ibid. ("A defendant who does not even attempt to make a good faith effort to comply with the terms of his or her probation cannot complain later that compliance was impossible").
Order revoking probation and imposing sentence affirmed.
By the Court (Katzmann, Milkey & Agnes, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: August 12, 2015.