Opinion
13-P-1863
11-26-2014
COMMONWEALTH v. DAWSON D., a juvenile.
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 juvenile challenges the revocation of his probation and commitment to the Department of Youth Services (DYS) until his eighteenth birthday for his failure to pay overdue attorney's fees under the terms of his probation. We affirm.
Background. On February 24, 2011, the juvenile, then fourteen years old, was charged with delinquency by reason of larceny over $250. A Juvenile Court judge entered a continuance without a finding and imposed an eight-month probationary period until June 29, 2012. A judge extended the period to September 28, 2012, after the juvenile was arrested for an incident at school. After a new arrest and the juvenile's stipulation to violations, the continuance without a finding was revoked and the juvenile was sentenced to DYS commitment, suspended with probation until November 14, 2013.
On May 20, 2013, a notice of probation violation was issued alleging that (1) the juvenile was arrested on delinquency charges of assault and battery, attempt to commit a crime, unarmed assault with intent to rob, and resisting arrest, and (2) the juvenile had failed to pay overdue attorney's fees. At a hearing on June 3, 2013, a judge found the juvenile in violation solely on the nonpayment of $150 in attorney's fees and $45 in victim-witness fees. The judge revoked the juvenile's probation and imposed the suspended sentence, committing him to DYS until his eighteenth birthday. On June 24, 2013, the judge denied the juvenile's motion to revise and revoke the sentence. The juvenile appeals from both orders.
Revocation hearing. The juvenile argues that the judge violated his due process rights by not allowing him to argue and present evidence at the revocation hearing. Juvenile Court Standing Order 1-07(VI)(b) requires two stages to a revocation hearing, adjudication and disposition. In both stages, Standing Order 1-07(VI) requires that the probationer receive a chance to present evidence. These rights may be waived: "A probationer's limited due process rights in connection with revocation proceedings [are] subject to both waiver (like any right, constitutional or otherwise) and harmless error analysis." Commonwealth v. Morse, 50 Mass. App. Ct. 582, 589 (2000).
Here, on June 3, 2013, the judge asked the juvenile's attorney whether counsel wanted to proceed with the revocation hearing, and counsel answered yes. Then, without hearing arguments or any formal presentation of evidence, the judge immediately found the juvenile in violation for failure to pay the fees. However, after the judge's finding, defense counsel was permitted to argue that the juvenile should not be found in violation. At no time did counsel object to the finding of a violation without the juvenile receiving a chance to present evidence. Counsel also failed to object as to any problems at the disposition stage of the proceedings. Similarly, counsel did not raise any objections during the June 24, 2013, hearing on the motion to revise and revoke. The claims are waived, and we review only to determine whether a substantial risk of a miscarriage of justice exists. See Commonwealth v. Saulnier, 84 Mass. App. Ct. 603, 607 (2013).
Here, no substantial risk of a miscarriage of justice exists because counsel had an adequate opportunity at the June 3 and June 24, 2013, hearings to argue the juvenile's case, and the judge had sufficient evidence to find that the defendant received numerous opportunities to pay the fees or perform community service instead, but failed to do so. The judge engaged in lengthy discussions with counsel on the payment of fees and heard several arguments regarding adjudication and disposition before restating his finding of a violation and imposing the sentence.
Notice. The juvenile argues that he did not receive notice before the June 3, 2013, hearing that nonpayment of the attorney's fees could result in a violation. Due process requires that a probationer receive "fair warning of conduct that may result in the revocation of probation." Commonwealth v. Ruiz, 453 Mass. 474, 479 (2009). Here, two separate orders stating the conditions of probation, signed by the juvenile and his parent, indicated that the juvenile must "[p]ay all court ordered fees, fines, costs and assessments" as a condition of probation. While neither order specifically mentions attorney's fees, the juvenile received notice in numerous other forms, written and oral, that payment of those fees was a condition of probation.
The probation condition orders are dated October 20, 2011, and December 23, 2011.
Several references were made to payment of attorney's fees. The juvenile was served with a notice of probation violation dated April 25, 2012, that stated, "You failed to make a required payment, specifically: overdue $150 atty fee . . . ." In a hearing on March 15, 2012, with the juvenile and his mother present, the court told the mother that the juvenile owed outstanding legal fees. In a hearing on July 20, 2012, with the juvenile present, the court discussed outstanding legal fees with defense counsel. Finally, the juvenile was served with another notice of probation violation, dated May 20, 2013, that stated: "You failed to make a required payment, specifically: overdue attorney fees." Furthermore, the juvenile received notice that a $45 victim-witness fee was a condition of his probation and was due. Failure to pay the victim-witness fee would have provided the judge with a sufficient, independent ground for finding a violation.
Equal protection. The juvenile's final argument is that imposing attorney's fees violated his constitutional rights to equal protection and due process because a nonindigent juvenile who retains private counsel would not be subject to the same condition of probation. The juvenile did not raise this argument below, and we decline to consider it for the first time here. See Commonwealth v. Garcia, 409 Mass. 675, 678 (1991). Even if we were to consider the argument, the juvenile would fare no better as one found to be indigent may apply for waiver or substitution of fees and costs, see G. L. c. 261, § 27B, or, in the case of attorney's fees and other costs, participate in community service as an alternative. Here, instead of paying the fees the juvenile could have participated in such service, but failed to do so.
Another reason for the surrender was the new arrest of the juvenile. The revocation judge decided not to go forward with that aspect of the case. Subsequently, the juvenile was adjudicated delinquent on two of the charges -- assault and battery and attempt to commit a crime. The charges of unarmed assault with intent to rob and resisting arrest were dismissed at the Commonwealth's request. It appears that even if we were to reverse here, another probation hearing would in all likelihood result in revocation. Regardless, we addressed the issues presented. Cf. Commonwealth v. Milot, 462 Mass. 197, 201 (2012).
We have considered all of the juvenile's arguments, and find them to be without merit. See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
For these reasons and for substantially those in the brief of the Commonwealth, we affirm.
Order revoking probation and imposing sentence affirmed.
Order denying motion to revise and revoke affirmed.
By the Court (Kantrowitz, Graham & Katzmann, JJ.),
Panel members appear in order of seniority.
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Clerk Entered: November 26, 2014.