Opinion
20-P-697
06-02-2021
COMMONWEALTH v. Francisco HERNANDEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Francisco Hernandez, appeals from a December 2019 order of a District Court judge finding him in violation of the terms of probation and imposing the balance of a suspended sentence imposed in 1996. Because we agree with the defendant that there was no evidence to warrant the finding that he violated the terms of probation, we vacate the order and remand for further proceedings.
Background. The defendant was convicted in the Malden Division of the District Court Department of operating a motor vehicle under the influence of alcohol, third offense, G. L. c. 90, § 24 (1) (a ) (1), in March 1996. He was sentenced to a house of correction term of two years, 210 days committed, the balance suspended, with two years of probation ending March 4, 1998. It appears that a notice of surrender for a probation violation hearing, based on a "new criminal complaint" out of Springfield, was issued on June 4, 1997, with a hearing date of June 17, 1997. A second probation violation notice was issued on February 3, 1998, also based on new crimes that had occurred in Springfield, including a charge of assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A. The hearing was scheduled for March 5, 1998, the day after the end of the probationary period. The defendant did not appear for any probation violation hearings, and for reasons not apparent from the record, the pending violation notices, as well as the Springfield case or cases on which they were based, lay dormant for many years.
While "[t]here can be no violation of probation unless committed during the probationary period, ... in suitable circumstances probation may be revoked after that period" as long as revocation "occur[s] within a ‘reasonable’ time." Commonwealth v. Baillargeon, 28 Mass. App. Ct. 16, 20 (1989).
The defendant had no further interaction with the criminal justice system in the Commonwealth until 2012, when he was apparently arraigned in Somerville District Court for operating a motor vehicle after suspension of his license, G. L. c. 90, § 23. After another seven years of inaction, the defendant was arraigned in Boston in 2019 for operating after suspension, id., and a compulsory insurance violation, G. L. c. 90, § 34J.
The defendant appeared in Malden District Court on December 19, 2019, to answer to the probation violation notices. As stated by the probation officer who appeared on that date, the probation officer who originally handled the case having retired, "[T]he basis of his surrender was a new complaint. And the new complaint was on assault and battery with a dangerous weapon threat and [sic ] out of Springfield." No evidence about the new complaint was offered, and no exhibits were offered. It appears that defense counsel had a copy of the assault and battery complaint, but, as the Commonwealth concedes, the complaint was not made part of the record.
We note that the complaint is not based on a police report, but rather on the written statement of the complainant, who signed the statement albeit not under penalties of perjury.
The defendant moved to dismiss the probation violation hearing on the ground that his probation had long since expired and the Commonwealth did not act with reasonable diligence. The judge denied the motion to dismiss, stating that the defendant had "warrants everywhere" and should not "benefit from the passage of time when he's got defaults everywhere and serious charges pending." On that basis, the judge went on to find the defendant in violation of probation, "And where he's being held anyway, and the fact that he's been on default for so long and on default everywhere, makes sense to me to impose the balance of the sentence."
Discussion. "The Commonwealth must prove any ‘violation of probation by a preponderance of the evidence.’ " Commonwealth v. Grant G., 96 Mass. App. Ct. 721, 724 (2019), quoting Commonwealth v. Bukin, 467 Mass. 516, 520 (2014). On review of a probation revocation decision, our task is to determine "whether the record discloses sufficient reliable evidence to warrant the findings [of violation] by the judge." Commonwealth v. Morse, 50 Mass. App. Ct. 582, 594 (2000). This record plainly does not.
Although the rules of evidence and the standard of proof are relaxed at probation violation hearings, see Commonwealth v. Durling, 407 Mass. 108, 112 (1990) ; Mass. G. Evid. § 1101(c)(3) (2021), the law requires that the Commonwealth present sufficient evidence of a probation violation. Moreover, defendants must be given a reasonable opportunity to defend themselves against the allegations of violations, and the evidence must be sufficient for the judge to make an independent determination that the violation occurred. See Commonwealth v. Maggio, 414 Mass. 193, 197-198 (1993). "In this case, the judge received no evidence ... bearing on the defendant's allegedly criminal conduct, so an independent finding based on discernable proof could not be made." Id. at 198.
Conclusion. The order revoking the defendant's probation and imposing sentence is vacated, and the case is remanded for further proceedings on the probation violation notice issued on February 3, 1998.
So ordered.
Vacated and remanded