Opinion
13-P-1309
01-08-2015
COMMONWEALTH v. JOSHUA PAGAN.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On August 31, 2011, the defendant admitted to sufficient facts on the charge of driving after his license had been suspended. His case was continued without a finding for a period of six months, and he was placed on unsupervised probation. On October 19, 2011, the defendant was found in violation of the terms of his probation, and his probationary period was extended to May 29, 2012. On May 8, 2012, the defendant was charged with assault and battery by means of a dangerous weapon. As a result of this new charge, the defendant's probation was ultimately revoked. On appeal, he claims his probation revocation hearing was improperly continued, there was insufficient evidence to support the violation determination, and the judge improperly admitted hearsay evidence. We affirm.
On December 4, 2013, following a jury-waived trial, the defendant was convicted of assault and battery by means of a dangerous weapon, i.e., the new charge that led to the revocation of the defendant's probation. As a result, both the defendant's sufficiency of the evidence and his hearsay claims are rendered moot. See Commonwealth v. Pena, 462 Mass. 183, 187 (2012); Commonwealth v. Milot, 462 Mass. 197, 201 (2012).
The defendant's remaining claim is that the judge violated the District Court probation violation rules by continuing the defendant's violation of probation (VOP) hearing to a date more than thirty days after his initial appearance, without the Commonwealth first establishing "extraordinary circumstances" to justify the delay. Although this claim is not rendered moot by the defendant's conviction on the new charge, it is nonetheless without merit.
The defendant's initial appearance for the revocation hearing was on June 13, 2012. Pursuant to Rule 3(c)(iii) of the District Court Rules for Probation Violation Proceedings (2000), the VOP hearing must be scheduled within thirty days of the defendant's initial appearance if the defendant objects to any longer period of time. Here, the VOP hearing was scheduled for August 15, 2012. As this was more than thirty days after his initial appearance, the defendant could have objected, which would have required the Commonwealth to show "extraordinary circumstances," ibid., to justify the delay. Instead of objecting, here defense counsel "agreed" to the date of the hearing.
On August 15, 2012, the judge granted the probation department's request (over the defendant's objection) that the hearing be continued. Because this was not the defendant's initial appearance, rule 3(c)(iii) no longer applied. Instead, Rule 5(e) of the District Court Rules for Probation Violation Proceedings (2000) governs "continuances" for the conduct of the hearing. Under rule 5(e), a VOP hearing "shall be continued only by a judge and for good cause shown." Ibid.
As explained on pages 6-7 of the Commonwealth's brief, the probation department was "confused" as to the whereabouts of the defendant, and as a result, a writ of habeas corpus had not issued to bring him to court on August 15. This confusion was compounded by the defendant's probation officer not realizing that this date was for a VOP hearing, and not an initial appearance. Given this misunderstanding, the probation department did not summons its essential witnesses for that date. We cannot conclude the judge abused his discretion by granting the continuance in light of the above. See Commonwealth v. Clegg, 61 Mass. App. Ct. 197, 201 (2004) (applying "good cause" standard in context of requested continuance of suppression hearing to secure "indispensable" police witness). We add that the defendant has not demonstrated that he suffered any prejudice as a result of the delay. See Commonwealth v. Whooley, 419 Mass. 421, 424 (1995).
Order revoking probation affirmed.
By the Court (Kantrowitz, Green & Meade, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: January 8, 2015.