Opinion
No. 12–P–2001.
2013-12-17
COMMONWEALTH v. Michelle Y. KENNEDY.
By the Court (KANTROWITZ, GRAHAM & MEADE, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On appeal from an order of a Superior Court judge revoking her probation, and the denial of her motion for reconsideration, the defendant probationer makes two arguments: that “the findings of violation of probation were erroneous and, or, a violation of due process”; and that the violations, even if intentional, were excusable and did not warrant the termination of her probation and the imposition of her suspended sentence.
Background. A Superior Court jury found the defendant guilty of receiving stolen property having a value in excess of $250, and conspiracy to commit a breaking and entering of a building at night. The judge sentenced the defendant to two years in a house of correction, twelve months to serve and the balance suspended for three years, with conditions that she comply with random drug and alcohol testing, complete any drug and alcohol treatment ordered by the probation department, and pay a probation supervision fee. The defendant served the committed portion of her sentence and began serving her three-year probation on or about April 26, 2011. Her probation, however, was problematic, and, within months, she received a final surrender notice. The notice was based on her failure to report for required drug testing on June 23 and July 19, 2011, failure to report for probation supervision on July 13 and July 20, 2011, and failure to pay her probation supervision fee.
On July 27, 2011, a motion judge conducted a final surrender hearing and heard testimony from the defendant and her probation officer. At the conclusion of the hearing, the judge made oral and written findings that the defendant violated the terms of her probation by failing to report for required probation supervision meetings and drug testing. The matter was continued to August 3, 2011, for disposition.
At the conclusion of the August 3, 2011, hearing, the judge revoked the defendant's probation and ordered her to serve the one-year balance of her sentence. The defendant later filed a motion for reconsideration, which was denied.
1. Finding of probation violation. The defendant makes no serious challenge to the evidentiary support for the judge's findings of violation of the terms of her probation. Those findings are clearly supported in the record. While the testimony of the probation officer, credited by the judge, did not compel the judge's findings, it warranted them. See Commonwealth v. Tate, 34 Mass.App.Ct. 446, 449–450 (1993) (question on appeal is whether the record discloses evidence sufficient to warrant finding that defendant violated a condition of probation). Rather, the defendant claims that the violations of probation should have been excused.
The defendant claimed that she failed to receive notice of scheduled meetings and that medical problems related primarily to dental issues prevented her from attending the scheduled meetings.
Whether the defendant's breaches of the conditions of her probation should have been excused was a question of fact for the hearing judge to determine by a preponderance of the evidence. Commonwealth v. Durling, 407 Mass. 108, 111 (1990). Commonwealth v. Holmgren, 421 Mass. 224, 226 (1995). It was within the judge's exclusive province to assess the weight and credibility of the evidence and determine whether to “accept or reject, in whole or in part, the testimony presented.” Commonwealth v. Janovich, 55 Mass.App.Ct. 42, 50 (2002), quoting from Commonwealth v. Ruci, 409 Mass. 94, 97 (1991).
Here, the judge credited the testimony of the probation officer that the defendant had received timely notice of her scheduled meetings and did not credit the defendant's claim that illness prevented her from attending the meetings. In sum, there is no merit to the claim that the judge's findings were clearly erroneous or that the findings were made in violation of the defendant's right to due process.
2. Revocation and sentencing. The more substantial claim made by the defendant is, in essence, that the penalty of revocation of probation and a return to the house of correction to serve the balance of her sentence is so disproportionate in relation to the probation violations as to be arbitrary and capricious. We are not persuaded.
Once a defendant is found in violation of the conditions of probation, it is incumbent upon the judge to determine, based on all the facts and circumstances adduced at the hearing, including mitigating circumstances, whether revocation is the appropriate disposition. See Commonwealth v. Pena, 462 Mass. 183, 188 (2012). That determination of “[h]ow best to deal with the probation is within the judge's discretion.” Commonwealth v. Durling, supra at 111.
The defendant had been granted probation on the express condition that she address her drug abuse problem. The responsibility for adhering to that condition and attending scheduled meetings with her probation officer was hers. She failed to do so. The judge could, in the exercise of her discretion, consider that the defendant failed to accept the conditions of probation, as demonstrated by her repeated violation of those conditions. While the judge's decision to revoke probation was not required, there was a reasonable basis for it.
Accordingly, the order revoking probation and the order denying the motion for reconsideration are affirmed.
So ordered.