Opinion
13-P-452
02-24-2015
COMMONWEALTH v. JAMEL B. SAMUELS.
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
Following notice and a hearing, held on July 7, 2011, a judge of the Dorchester Division of the Boston Municipal Court found the defendant in violation of conditions of his probation, revoked his probation, and ordered that he be committed to a house of correction to serve the remaining uncommitted portion of his sentences. On appeal, the defendant's principal argument is that he was found to have violated a condition that was not a condition originally imposed at his probation sentencing hearing.
After review of the record, briefs, and transcript of the hearing, we vacate the probation revocation order and remand for further proceedings.
Background. Procedural. The defendant failed to file a timely notice of appeal of the revocation of his probation. Subsequently, successor counsel filed a motion before a single justice of this court for leave to file a late notice of appeal. The initial motion, which raised several issues was denied. The defendant then filed a renewed motion for leave to file a late notice of appeal. The single justice allowed the motion, but limited the appeal to "whether drug testing and substance abuse treatment were valid conditions of [the defendant's] probation."
The defendant did not appeal the single justice's restriction of the issues to a single one on appeal. The defendant's appellate brief, however, contains issues that are beyond the scope of the single justice's restriction, and thus we do not consider any such arguments.
Facts. We summarize the relevant undisputed facts that appear in the record.
On September 24, 2008, the defendant pleaded guilty before a judge of the Dorchester Division of the Boston Municipal Court to charges of threatening to kill his girlfriend and assaulting her, and to several firearm-related charges. The Dorchester judge sentenced the defendant to eighteen months in a house of correction on one of the counts and to a total of six years of probation on the other three counts to run through September 29, 2014. The docket sheet also includes the following comments in the "sentence or other disposition" box: "Batterer's Program," "Fatherhood Program," "drug free," and "alcohol free." A written probation order was issued soon afterwards. The order required the defendant, in addition to abiding by the general conditions of probation, to attend and complete a fatherhood program, a batterer's treatment program and, completion of a nonresidential substance abuse treatment program.
The general conditions of probation requirements included compliance with all court orders and all city, State, and Federal laws, which would include parole orders.
On November 24, 2008, in a separate drug-related criminal complaint issued by the Roxbury Division of the Boston Municipal Court, the defendant was found in violation of his probation, and sentenced in that court to a two years committed sentence to be served concurrently with the Dorchester Division sentence. In addition, the judge ordered the defendant to attend a six month residential substance abuse program at a Spectrum House.
In 2010, the defendant was paroled on the Roxbury sentence to the Spectrum House program, where he completed the substance abuse program and was awaiting placement in a sober house. On the evening of April 29, 2011, while still awaiting placement in a sober house, the defendant left Spectrum House without authorization and remained unaccounted for until May 17, 2011, when he turned himself in on a warrant that had issued for his arrest. During his absence, the defendant failed to contact his probation officer.
At a final surrender hearing on July 7, 2011, a judge of the Dorchester Division found the defendant in violation of the terms of his probation for failing to complete a substance abuse program, a batterer's program, and a fatherhood program. The defendant also failed to comply with testing requirements as ordered; to pay fees; and to report to the probation officer after April 29, 2011. The judge then sentenced him to be committed to a house of correction.
The original sentencing judge is no longer a member of the Boston Municipal Court.
The probation violations form also included a finding that the defendant stipulated to the violations of his probation. However, the defendant later filed and was granted a motion to correct the record to show that he did not stipulate to the violations.
Discussion. The defendant raised several issues in his brief. However, the narrow issue authorized for appeal by the single justice for hearing by this panel focuses on questions arising under Commonwealth v. MacDonald, 435 Mass. 1005 (2001), specifically "whether drug testing and substance abuse treatment were valid conditions of [the defendant's] probation." In MacDonald, the Supreme Judicial Court held that, absent other evidence, a discrepancy between the probation conditions imposed by the sentencing judge on the docket sheet and the conditions on the probation form prepared by the probation officer must be resolved in favor of the docket sheet information. See id. at 1007. In essence, a "defendant is in violation of his probation only if he disobeys the conditions of probation imposed by the sentencing judge." Ibid.
In light of MacDonald, the single justice's instruction should be interpreted to limit our review to whether drug testing and substance abuse treatment, the conditions written on the probation order, were conditions ordered by the sentencing judge in the Dorchester Division of the Boston Municipal Court in 2008, as informed by the docket sheet. A simple comparison reveals that the docket sheet, supplemented by the probation hearing transcript, only specifies a requirement that the defendant stay "drug free" and "alcohol free" and makes no mention of substance abuse treatment or testing. As prima facie evidence of the probation conditions, the docket sheet language shows that the defendant could not have violated drug testing and substance abuse treatment requirements. MacDonald, 435 Mass. at 1007.
The single justice's order was in response to the defendant's motion to enlarge time for refiling of a motion to file a notice of appeal late. In his motion brief, the defendant had argued that his claims were meritorious because the drug testing and substance abuse treatment conditions that appeared on the probation order were not the actual conditions imposed by the sentencing judge in the Dorchester Division of the Boston Municipal Court in 2008.
The Commonwealth misreads the single justice's limitation and misinterprets MacDonald in the process. The issue on appeal is not whether the sentencing judge had the discretion to impose substance abuse conditions in 2008. Rather, MacDonald addresses the issue of resolving discrepancies between the docket sheet and the probation order.
We note that, the Commonwealth has conceded that this appeal is not moot simply because the defendant has finished all his committed sentences, and based on our independent review, we agree.
Although we are mindful that the defendant did not appeal the single justice's limitation and that other conditions listed as violated in the probation violation form might suffice to support revocation, the misapprehension on these two points leads us to conclude that a further hearing is warranted. The order revoking probation and imposing sentence is vacated and the case is remanded for further proceedings consistent with this memorandum and order.
So ordered.
By the Court (Graham, Wolohojian & Milkey,JJ. , ),
Justice Graham participated in the deliberation on this case prior to his retirement.
The panelists are listed in order of seniority.
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Clerk Entered: February 24, 2015.