Opinion
19-P-807
04-07-2020
COMMONWEALTH v. Raymond PREVOST.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a hearing, a judge of the Superior Court found that the defendant had violated the terms of his probation; the judge then revoked the defendant's probation and sentenced him to a period of incarceration, along with from and after probation. The defendant appeals, arguing that the judge improperly based his decision to revoke probation on a finding that the defendant had violated an outstanding abuse prevention order, issued pursuant to G. L. c. 209A (restraining order). The Commonwealth concedes that it presented insufficient evidence to prove that the defendant knowingly violated the restraining order, and we agree. The issue, then, is whether the case should be remanded for reconsideration and we conclude that it should. We therefore vacate the orders revoking probation and imposing sentence and remand the case for further proceedings consistent with this memorandum and order.
Background. The defendant pleaded guilty on September 23, 2016 to breaking and entering in the daytime with intent to commit a felony; larceny from a building; breaking and entering a vehicle/boat with intent to commit a felony; and larceny over $250. For the two breaking and entering charges, the judge sentenced him to concurrent sentences of three and one-half years to three and one-half years and a day in State prison, with 680 days of credit for time served. For the two larceny charges, the judge sentenced him to three years of probation, to be served from and after the incarcerated portion of the sentence.
On the same day, the defendant signed general and special conditions of probation, including one that he obey "all local, state and federal laws and all Court Orders," pay restitution, and pay a probation supervision fee. On February 2, 2018, the defendant was released from prison. On March 3, 2018, the court entered an order modifying the conditions of probation, adding the conditions that the defendant refrain from use of narcotics; submit to an evaluation for drug abuse; enter and successfully complete any recommended inpatient or outpatient treatment program; and submit to random testing for drug use.
On May 16, 2018, the defendant's ex-girlfriend filed an application for a restraining order in the District Court, and, after an ex parte hearing, the judge issued an order that the defendant not abuse her, stay away from her residence, not contact her, and stay fifty yards away from her wherever she was. The judge also ordered the defendant to surrender any guns, ammunition or gun licenses to the Fall River Police Department. In her affidavit in support of the restraining order, the plaintiff stated that, on or about May 15, 2018, she returned to her home and found her door broken; the defendant was sleeping in her bed with her iPad, her old cell phone, and her jewelry beside him. She further claimed that, after she woke him up, the defendant began throwing items at her, kicking furniture, and punching things. "He also made verbal threats to come and harm [her]." The plaintiff stated that she called the police and the defendant fled.
On May 30, 2018, following a hearing, the restraining order was extended for a year, until May 29, 2019. The face of the order indicates that the plaintiff appeared and the defendant did not. On June 3, 2018, the plaintiff received a call from the house of correction; once she heard the defendant's name, she hung up. Later, she received a text from the girlfriend of a man incarcerated with the defendant, asking whether the defendant could call her. The plaintiff did not reply.
On May 14, 2018, the Probation Department filed a probation violation notice and issued a warrant for the defendant. The violation notice subsequently was amended on May 17, May 29, and June 19, 2018 and alleged the defendant failed to appear for scheduled appointments, failed to appear for drug screens, left probation upon a request to have a drug screen, committed an assault on a family member and intimidated a witness, admitted to using heroin, had an abuse prevention order issued against him, and violated that order. On June 19, 2018, following an evidentiary hearing, the judge revoked the defendant's probation based on several criminal and noncriminal violations. Specifically, the judge found that the defendant had failed to report to probation on April 26, April 30, and May 10, failed to report for a drug screen on May 8, and he ran from his probation officer on May 14 after the probation officer requested another drug screen. The judge also found that the Commonwealth had proved by a preponderance of the evidence that, on or about May 15, 2018, the defendant broke into the victim's apartment with intent to commit a felony. Further, he found that the Commonwealth had proved that the defendant had violated the restraining order, in violation of G. L. c. 209A, § 7, by directing a third party to send a text message to the plaintiff.
On appeal, the defendant argues that the Commonwealth presented insufficient evidence to support a finding that he knew of the existence of the restraining order when the victim received the text message on June 3, 2018. Because the judge revoked the defendant's probation based at least partly on his conclusion that the defendant had committed this substantive offense, the defendant contends that the order revoking his probation should be vacated and the matter remanded for the judge to reconsider and to decide the appropriate disposition.
As noted, supra, the Commonwealth concedes that the evidence was insufficient to prove that the defendant knowingly violated an outstanding restraining order. Specifically, the restraining order offered in evidence "did not have any return of service with it, or any other evidence that the defendant had been served with the order." The Commonwealth argues, however, that the restraining order violation was not a significant factor in the judge's decision to revoke the defendant's probation, considering that there were other, significant violations of the terms of probation. For that reason, the Commonwealth contends that the sentence should stand.
Discussion. The defendant relies on Commonwealth v. Arroyo, 451 Mass. 1010, 1012 (2008), for the proposition that, when a judge considers an unsubstantiated probation violation and then revokes the defendant's probation, this court should not speculate about the actions the judge might have taken; rather, consistent with Arroyo, we should vacate the revocation decision and "remand the case to the Superior Court for consideration of the appropriate disposition, based solely on violations that" were proven at the underlying hearing. While we ultimately come to the same conclusion, in Arroyo, the judge improperly considered an alleged probation violation that occurred after the defendant's term of probation had ended. Id. at 1011. Here, the unproven violation occurred within the probationary period. This court, however, recently has addressed facts more closely analogous to the facts before us.
In Commonwealth v. Hamilton, 95 Mass. App. Ct. 782, 785 (2019), a judge had revoked the defendant's probation after finding that the defendant possessed two forms of child pornography, writing and photographs, both in violation of the terms of his probation. The judge also found that the defendant had failed to report to probation, as required, on two occasions. Id. at 788. On appeal, this court concluded that possession of the photographs was not a violation of the defendant's terms of probation, but possession of the writings was, in fact, a violation. Id. at 786. We also concluded that the Commonwealth had not established the defendant had failed to report as required. Id. at 789. Nonetheless, at sentencing, we noted that the judge had made an explicit statement that he had "reviewed the contents of the exhibits, [and] listened to all of the testimony," but that he would "not in any way consider any of that evidence or information in dealing with the disposition .... [T]hat decision [would] only be made based on the underlying crimes for which [the defendant] was on probation." Hamilton, 95 Mass. App. Ct. at 789. We noted that "[t]he judge made clear that he was basing the disposition on the fact that the defendant violated his probation (and not on the nature of the violations), coupled with the circumstances of the underlying crime." Id. at 790. For that reason, we concluded there was no need to speculate about what conclusion the judge might have reached had he found a violation based solely on the defendant's possession of pornographic writings. Id. at 789-790. Remand, therefore, was unnecessary. Id. at 790.
In Commonwealth v. King, 96 Mass. App. Ct. 703, 704 (2019), a judge had placed the defendant on probation after the defendant pleaded guilty to possession of child pornography. The defendant was given very specific terms of probation regarding his use of the Internet. Id. at 704. He was ordered "not to access any internet services from any handheld device" and he was ordered not to "use, enter, visit, participate in, or remain in any ... social networking site or service ... or any other online communication service, with the sole exception of electronic mail." Id. He also was ordered to disclose to probation, among other things, the "names of all online services ... electronic mail providers, screen names, and passwords" he was then using and "constantly [to] continue to disclose [those] names and any new such information to [p]robation." Id.
After a hearing, a judge found that the defendant had violated two special conditions of his probation. Specifically, the judge found that the defendant had violated the terms of his probation by using a computer at a career center to download pictures of young, minimally clothed girls. King, 96 Mass. App. Ct. at 708. The judge also found that the defendant did not disclose to probation the e-mail account that he had used to download the photos. Id. at 708, 711.
In King, 96 Mass. App. Ct. at 705-706, "[t]he following information emerged at the probation surrender hearing. On May 10, 2017, the defendant's probation officer was notified by staff at the shelter in Salem where the defendant lived that he possessed materials printed from the Internet, including pictures of young girls. The defendant had downloaded the materials from the Internet using a computer at a career center in Salem. Once downloaded, the defendant had sent some of the materials to himself using an e-mail address made up of his name and birthdate .... The defendant never disclosed this e-mail address to probation as required. Instead, the defendant gave his probation officer a different e-mail address that at some point became inoperative."
On appeal, we concluded that the judge had erred, in that the defendant's specific use of the career center's computer, though troubling, was not, in fact, a violation of the terms of his probation. On the other hand, we concluded that the judge "permissibly found that the defendant violated special condition six by failing to disclose his e-mail address to probation," and observed that "[t]he judge could have revoked the defendant's probation for that violation alone." Id. at 711. We noted, however that, in explaining his disposition, the judge repeatedly referred to the defendant's use of the Internet in violation of the terms of his probation. King, 96 Mass. App. Ct. at 712. On balance, we concluded that the matter should be remanded for the judge to consider whether to revoke probation on the basis of only one violation. Id. at 712-713. We reasoned that, while one violation is sufficient to revoke the defendant's probation, "it is not for us to speculate what action the judge would have taken. ‘To do so would effectively, and improperly, supplant the judge's opportunity to exercise his discretion, on appropriate evidence, in the first instance.’ " Id. at 712, quoting Arroyo, 451 Mass. at 1011.
The present case is more like King than Hamilton. In explaining his disposition, the judge clearly considered all of the various probation violation allegations. In fact, he stated, "I don't believe in the term ‘technical violations.’ He's on probation with conditions, and they all matter." Moreover, the record indicates that the judge did weigh the challenged violation against the defendant in the decision to revoke probation; he stated specifically, "[t]he Commonwealth has also shown the violation of the restraining order that occurred with the text message that was received [from] a third party [who acted] at the direction of the defendant."
For these reasons, we cannot be certain that the judge's decision was not substantially influenced by concern that the defendant had violated an outstanding restraining order. See King, 96 Mass. App. Ct. at 712. Accordingly, we vacate the orders revoking the defendant's probation and imposing sentence, and remand the case for consideration of the appropriate disposition, based solely on the noncriminal violations and the charge of breaking and entering with the intent to commit a felony.
So ordered.