Opinion
11-P-426
02-10-2012
COMMONWEALTH v. JOHN BUONOPANE.
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
Having received, after remand, written findings from the judge below, we now address the defendant's arguments that (1) there was insufficient evidence that he violated his probation; and (2) the judge abused his discretion in revoking his probation. We affirm.
'The standard of proof in a probation revocation proceeding is the civil standard of preponderance of the evidence rather than the criminal standard of beyond a reasonable doubt.' Commonwealth v. Hill, 52 Mass. App. Ct. 147, 154 (2001). On review of a probation revocation decision, our task is to determine 'whether the record discloses sufficient reliable evidence to warrant the findings by the judge.' Commonwealth v. Morse, 50 Mass. App. Ct. 582, 594 (2000). We review a judge's revocation of probation for abuse of discretion. Commonwealth v. Christian, 46 Mass. App. Ct. 477, 482, S. C., 429 Mass. 1022 (1999). Failure to comply with a condition of probation properly may result in revocation of probation. Rubera v. Commonwealth, 371 Mass. 177, 180-181 (1976).
In this case, the evidence credited by the judge permitted him to find that the defendant had violated his probation by committing an assault when he followed the woman he was dating to her apartment and engaged in a violent conflict with her. The defendant threw numerous objects at the victim, putting her in fear for her life and doing considerable damage to her apartment. Bystanders, including one Michael Dwyer, were sufficiently alarmed that they intervened. The defendant needed to be forcibly restrained until the police arrived. The judge credited the testimony of Dwyer, who was a firsthand witness to the conflict, of the responding police officer, and of the defendant's aunt with respect to her testimony that she was sufficiently worried about the victim on the night of the attack that she left her children with neighbors in order to check on her (the victim).
It is apparent from the record that the judge weighed the mitigating factors presented by defense counsel (such as the defendant's employment) before determining to revoke the defendant's probation. Those mitigating factors had to be balanced against the nature of the violation as well as the defendant's prior history, including the seriousness of the underlying offense. Although the defendant is correct that the judge had the power to reprobate him, nothing required the judge to do so.
Order revoking probation affirmed.
By the Court (Graham, Rubin & Wolohojian, JJ.),