Opinion
16-P-360
02-23-2017
COMMONWEALTH v. Corey THERIEN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from an order of a judge of the District Court revoking his probation and imposing sentence. The defendant argues that he did not receive timely notice of the probation violation and that the evidence was insufficient to support a finding that he violated his probation by committing two new criminal offenses. We affirm.
On October 9, 2014, the defendant pleaded guilty (or admitted to sufficient facts) in the Greenfield Division of the District Court Department (Greenfield Division) on numerous offenses, including assault and battery on a police officer and being present where heroin was kept. He was placed on probation until October 8, 2015, with the condition, among others, that he remain drug-and alcohol-free and complete substance abuse treatment. After he committed a series of probation violations, the term of his probation was extended to July 6, 2016.
On January 8, 2016, the defendant was arrested in Haverhill and charged with violation of an abuse prevention order and malicious destruction of property. He was arraigned in the Haverhill Division of the District Court Department (Haverhill Division) on January 11, 2016, and was advised at that time that he was being held on a probation warrant pending potential bail revocation. The next day, the defendant was transported to the Greenfield Division, where he was served in hand with a written notice alleging that he violated his probation by committing the two new criminal offenses (which were specifically named and referenced by the Haverhill docket number) and by failing to remain alcohol-free. The defendant stipulated to probable cause and was held pending a final hearing. After the hearing, which occurred on February 4, 2016, the judge found the defendant in violation of his probation due to both new offenses and to not remaining alcohol-free. The judge thus revoked the defendant's probation and ordered him to serve six months in the house of correction. Two weeks later, the defendant pleaded guilty in the Haverhill Division to the two new criminal charges.
On appeal the defendant contends that his due process rights were violated because the notice of probation violation was not served "at or before his arraignment" on the new criminal charges, which he says was required by rule 3(c)(i) of the District/Municipal Court Rules for Probation Violation Proceedings (2015). The rule, however, specifically states that the notice is to be served at or before arraignment "or as soon thereafter as possible." The notice here was served only one day after the arraignment, and the defendant makes no argument that it could have been served earlier. Furthermore, he fails to explain how he was in any way prejudiced by the one-day delay, which is fatal to his claim of a due process violation. See Commonwealth v. Whooley , 419 Mass. 421, 424–425 (1995).
The rule states in full:
"When a criminal complaint is issued by a court division (hereinafter the ‘criminal court’) against a defendant who is the subject of a probation order issued by a different division of the same court department (hereinafter a ‘probation court’), the Probation Department at the criminal court shall issue a Notice of Probation Violation and Hearing to the probationer at or before arraignment on the criminal charge, or as soon thereafter as possible. The notice shall be served on the probationer in hand and such service shall be recorded on the case docket. Nothing in this rule shall preclude the later issuance and service on the probationer of a notice of violation by the Probation Department of a probation court."
Rule 3(c)(i) of the District/Municipal Court Rules for Probation Violation Proceedings (2015).
To the extent the defendant is arguing that the notice should have been served by the probation department in Haverhill (instead of the probation department in Greenfield), that argument likewise fails for lack of any resultant prejudice to him.
The defendant also contends that the evidence was insufficient to support a finding that he committed the conduct alleged in the two new criminal charges. This argument is moot because the defendant has since pleaded guilty to both of those charges. See Commonwealth v. Milot , 462 Mass. 197, 201 (2012) ("[A] conviction or guilty plea to a subsequent crime renders moot an appellate claim that a judge erred in making the factual determination that a probationer violated the terms of his probation").
The defendant conceded at the hearing that there was sufficient evidence to support a finding that he violated his probation by failing to remain alcohol-free.
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Order revoking probation and imposing sentence affirmed .