Opinion
18-P-1211
07-17-2020
COMMONWEALTH v. JOSIAH STIRLING.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
The defendant appeals from an order of a Superior Court judge revoking his probation and committing him to serve fifteen months in a house of correction. The judge concluded that the defendant had violated the conditions of his probation by (1) committing a new criminal offense (unlawful possession of a firearm), (2) failing to provide verification of mental health treatment, and (3) failing to provide proof of residency. On appeal, the defendant contends that the condition of probation that required him to receive a "mental health evaluation and treatment, if deemed beneficial," was unconstitutionally vague. He also contends that the evidence was insufficient to establish that he failed to provide verification of his mental health treatment and residency. However, because the judge properly revoked the defendant's probation on the ground that he committed a new offense, we need not address the validity of the remaining conditions imposed nor the sufficiency of the evidence supporting the violations of those conditions. We affirm.
"A defendant on probation is subject to a number of conditions, the breach of any one of which constitutes a violation of his probation." Commonwealth v. Durling, 407 Mass. 108, 111 (1990). See Commonwealth v. Vargas, 475 Mass. 86, 93 (2016), quoting Durling, supra at 112 ("Any 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"). "The Commonwealth must prove a violation of probation by a preponderance of the evidence." Commonwealth v. Bukin, 467 Mass. 516, 520 (2014).
We review a probation revocation order for an abuse of discretion. Bukin, 467 Mass. at 520-521. Where "revocation of probation [is] based upon a violation of criminal law, 'there is no prerequisite that the probationer be convicted.'" Commonwealth v. Emmanuel E., 52 Mass. App. Ct. 451, 453 (2001), quoting Commonwealth v. Rubera, 371 Mass. 177, 180-181 (1976). The judge revoking probation need only find by a preponderance of the evidence that the defendant committed a new criminal offense. See Bukin, 467 Mass. at 520.
Here, the judge's finding that the defendant violated a criminal law, namely possession of a firearm, was based on testimony provided by the police officer who arrested the defendant. The officer testified that he stopped a vehicle in which the defendant was a passenger. The defendant fled, but was soon apprehended. The police found a gun under the front passenger seat where the defendant had been sitting. The defendant does not contest this new offense is a basis to revoke his probation on appeal.
Thus, even assuming that a separate condition of his probation was unconstitutionally vague, and that there was insufficient evidence to establish his two noncriminal violations, the defendant's revocation of probation was properly premised on the unchallenged criminal violation alone. See Vargas, 475 Mass. at 93.
Furthermore, this is not a case where we are left to speculate what action the judge would have taken had he found the defendant in violation of probation based only on the violation properly found. See Commonwealth v. Marcus M., 92 Mass. App. Ct. 1, 6 (2017), citing Commonwealth v. Arroyo, 451 Mass. 1010, 1011 (2008). The primary focus of the probation revocation hearing was the criminal violation. Both parties limited their summations to the criminal violation. At disposition, the judge indicated that he was "not going to reprobate [the defendant] where [he] found a preponderance of the evidence on another gun when he's on probation for a gun related case." Additionally, the judge specifically noted that he was revoking probation to protect the "safety of the public" and the "seriousness of the underlying offense."
As revocation of the defendant's probation was properly premised on his criminal violation, we need not address the defendant's other claims on appeal.
Order revoking probation and imposing sentence affirmed.
By the Court (Vuono, Blake & Singh, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: July 17, 2020.