Opinion
14-P-871
06-08-2015
COMMONWEALTH v. MATTHEW P. ABRAHAM.
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
The defendant appeals from a finding that he violated the terms and conditions of his probation, claiming that he was denied an opportunity to present a defense and that he was improperly removed from the court room without being informed of his right to return. We affirm.
1. Background. The defendant was charged with crimes of domestic violence in January, 2012. He pleaded guilty to one count of assault and battery and was sentenced to two and one-half years in the house of correction, with one year to be served, and the balance suspended until March 21, 2014, with various conditions of probation. In May, 2013, probable cause was found that the defendant had violated his probation by violating a restraining order issued in New Hampshire. On the morning of the final probation surrender hearing, the defendant elected to waive counsel and represent himself. The judge conducted a full colloquy and cautioned the defendant about the consequences of his decision. The defendant executed a waiver of counsel and proceeded pro se.
At the initially scheduled hearing, instead of proceeding, a court clinician assessed the defendant at his request and found him to be competent.
At the hearing, the Commonwealth presented three witnesses. The defendant appropriately cross-examined the first two witnesses. The third witness was his former girlfriend, the victim of the above crimes. At the conclusion of the victim's testimony, the defendant made a lewd remark to her resulting in a finding of contempt. The defendant refused to follow the judge's instructions and was removed from the court room. The judge then asked defense attorney Lynda Dantas to speak to the defendant in the lock-up. Both Dantas and the defendant eventually returned to the court room, and, after a lengthy colloquy with each, Dantas agreed to represent the defendant, but presented no evidence on his behalf. Although Dantas forcefully argued for a continuance to allow her to organize a defense, the judge denied her request. He then found the defendant to be in violation of his probation and sentenced him to one and one-half years in the house of correction.
A probation revocation hearing involves determining as a factual matter if the probationer violated a condition of probation and then deciding if probation should be revoked; both of these are within the judge's discretion. See Commonwealth v. Durling, 407 Mass. 108, 111 (1990).
2. Right to counsel. At the outset of the probation violation hearing, the defendant voluntarily and intelligently elected to waive his right to counsel and proceed pro se. See Commonwealth v. Johnson, 424 Mass. 338, 340 (1997). Upon the defendant's removal from the court room, however, he changed his mind and accepted what we discern to be the judge's offer to appoint standby counsel. In such circumstances, the hearing judge has considerable discretion in determining whether to appoint counsel. See id. at 341-342, and cases cited. The judge, however, insisted that only counsel could proceed, essentially converting her status from standby counsel to regular counsel. It was error for him to deny Dantas's request for a five-minute recess to talk with the defendant. While we are sympathetic with the judge's frustration, his words and actions gave the defendant a colorable issue on appeal. In these circumstances, where the defendant was not otherwise entitled to counsel, his constitutional rights have not been violated. Moreover, where the defendant has failed to make a showing that he was prejudiced by the omission, we conclude that the error was harmless.
There is no constitutional right to the so-called "hybrid" form of representation where one is represented "in part by counsel and in part by oneself". Commonwealth v. Molino, 411 Mass. 149, 152 (1991).
The defendant did not make an offer of proof at the hearing, nor did he file an affidavit in support of his motion for reconsideration demonstrating prejudice.
3. Right to return to the court room. The defendant's claim that the hearing judge did not advise him of his right to return to the court room upon his request and assurances of good behavior is not supported by the record. The hearing judge explicitly warned the defendant that inappropriate conduct would not be tolerated. The defendant then engaged in an outburst that the judge was entitled to find had as its sole purpose to disrupt and delay the hearing. The defendant's subsequent removal from the court room, which was the result of his own behavior, should have come as no surprise. Nevertheless, his absence from the court room was brief, and nothing substantive occurred during that time. Upon his return to the court room, the hearing judge reminded the defendant that he could remain there, provided he behave appropriately.
Order revoking probation and imposing sentence affirmed.
By the Court (Grainger, Rubin & Blake, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: June 8, 2015.