Opinion
11-P-1644
06-04-2012
COMMONWEALTH v. MICHAEL ST. ONGE.
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
The defendant appeals from a District Court order revoking his probation, arguing that he received inadequate notice of the basis for revocation and that his subsequent incarceration was not in the public interest. 1 We affirm.
The defendant also moved to dismiss the probation surrender on the grounds that the terms of his probation did not require him to complete twenty-five hours of community service.
Background. In September, 1996, the defendant pleaded guilty to operating under the influence of intoxicating liquor (second offense), operating under the influence of drugs, operating with a suspended license (third or subsequent offense), and possession of a Class D substance. He received a suspended sentence and was ordered to complete an aftercare program as one of the conditions of his probation. The defendant's probation was extended three times to allow him time to comply with its terms. On January 17, 2001, Team Coordinating Agency, Inc., faxed a letter to the probation department stating that the defendant 'has successfully completed his aftercare group and has paid all the fees. After he has turned in his AA slips, we will send you the completion paperwork' (emphasis in original). The defendant last reported to the probation department on June 15, 2000. He apparently moved to New Hampshire, where he resided for approximately ten years. The defendant failed to notify the probation department of his change in address.
On December 6, 2010, the defendant was notified that he was in violation of his probation for: allegedly committing a domestic assault in New Hampshire; failing to report to the probation department; failing to notify probation of his new address; failing to complete a multiple offenders OUI aftercare program; and failing to complete twenty-five hours of community service. The defendant moved to dismiss the probation surrender, in part on the ground that the special conditions of his probation requiring him to have a letter of completion in order to be considered as having successfully completed the aftercare program had been met. The defendant's motion to dismiss on this ground was denied. 2 On February 10, 2011, the defendant was found to be in violation of his probation and was incarcerated.
The motion was allowed as to his failure to complete twenty-five hours of community service.
Discussion. 1. Due process. The defendant first argues that he was denied due process of law because the notice of probation violation stated only that he had failed to complete an aftercare program, without specifying the details underlying that charge. To satisfy due process, a defendant facing a probation violation is entitled to (a) written notice of the claimed probation violations; (b) disclosure of the evidence against him; (c) 'opportunity to be heard in person and to present witnesses and documentary evidence'; (d) the right to confront and cross-examine witnesses against him; (e) 'a 'neutral and detached' hearing body'; and (f) a written statement by the fact finder as to the evidence relied upon and the reasons for revoking probation. Commonwealth v. Durling, 407 Mass. 108, 113 (1990), quoting from Morrisey v. Brewer, 408 U.S. 471, 489 (1972), and Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973). These guidelines are flexible, as 'the requirements of due process depend on the circumstances of each case and an analysis of the various interests at stake.' Id. at 113-114.
'A defendant on probation is subject to a number of conditions, the breach of any one of which constitutes a violation of his probation.' Durling, supra at 111. Here, the defendant was notified that he was in violation of probation for, among other things, failing to report for ten years, failing to notify probation of his change of address, and failing to complete an OUI aftercare program. While he claims that he was denied due process because he successfully completed an aftercare program, he does not claim any error in the judge's finding that he failed to report to probation for ten years or to advise probation of his change of address. Both were conditions of his probation, and '[a]ny conduct by a person on probation which constitutes a violation of any of the conditions of his probation may form the basis for the revocation of that probation.' Rubera v. Commonwealth, 371 Mass. 177, 180-181 (1976). Thus, even if the notice of violation was defective for failing to disclose that the defendant had failed to submit twenty-two AA slips as required to complete the aftercare program, 3 the defendant's undisputed failure to report for ten years or to notify probation of his change of address provided ample grounds for revoking probation.
The defendant's probation was extended three times to give him time to complete an aftercare program, and his attorney stated at the probation violation hearing that the defendant thought he had completed the program. However, the defendant neither sought nor was granted a court order stating that he had satisfied the conditions of his probation, see Commonwealth v. Sawicki, 369 Mass. 377, 380 (1975) (noting that 'final action, in the form of an order signalling the end of the court's supervision of the probationer, is required to terminate probation'), and therefore he could not reasonably believe that he had satisfied the terms of his probation.
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2. Disposition. The defendant also contends that the judge erroneously imposed a prison sentence. Once a judge has found a probationer to be in violation of the terms of his probation, 'he can either revoke the probation and sentence the defendant or, if appropriate, modify the terms of his probation.' Durling, supra. We review a judge's disposition for an abuse of discretion. Ibid.
There was no abuse of discretion in this case. 'The two principal goals of probation are rehabilitation of the defendant and protection of the public.' Commonwealth v. Goodwin, 458 Mass. 11, 15 (2010). The defendant's probation was extended three times to give him the opportunity to complete an aftercare program, which he failed to do. The aftercare program, designed specifically for persons convicted multiple times of operating under the influence of alcohol, was designed to assist the defendant in maintaining sobriety. The judge could reasonably conclude that probation had not served its rehabilitative purpose, as the defendant failed to submit twenty-two AA slips (demonstrating sobriety) as required to complete the aftercare program. The sentence imposed was that originally imposed for the underlying offense, and where, as here, 'probation is coupled with a sentence of imprisonment, with execution suspended for the period of probation, a judge finding a violation of a condition of probation, if []he orders any period of imprisonment, must impose the suspended sentence.' Id. at 15 n.5. There was no error.
Order revoking probation affirmed.
By the Court (Cypher, Hanlon & Carhart, JJ.),