Commonwealth v. Pearson

Full title: COMMONWEALTH v. EUGENE M. PEARSON.

Court: COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

Date published: Dec 10, 2014

13-P-987 (Mass. App. Ct. Dec. 10, 2014)

Opinion

13-P-987

12-10-2014

COMMONWEALTH v. EUGENE M. PEARSON.

By the Court (Green, Rubin & Agnes, JJ.), Clerk

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 defendant's challenge to the finding that he violated his probation by commission of a new crime is rendered moot by his plea of guilty to that crime.¹ See Commonwealth v. Milot, 462 Mass. 197, 201 (2012).²

1 We view the judge's description of the crime as "ADW possession" rather than "DW possession" as a clerical error, rather than one of substance.

2 Milot likewise renders moot the defendant's contention that the judge improperly limited his cross-examination of Officer Narduzzo, since the officer's testimony went solely to the fact-finding step of the probation violation proceeding. See id. at 202.

We nonetheless are constrained to vacate the order of revocation and remand for further proceedings, because the record supports the defendant's contention that there was no evidence to support the second ground cited by the hearing judge as a basis for revocation of the defendant's probation: "testing failure."³ In circumstances where multiple bases for revocation of probation are found, but one or more of such bases is unsupported, it is not for us to speculate what action the judge would have taken had she found the defendant in violation of probation by reason only of the remaining valid basis (or bases). Compare Commonwealth v. Arroyo, 451 Mass. 1010, 1011 (2008). Accordingly, we vacate the order revoking the defendant's probation, and remand the case to the District Court for consideration of the appropriate disposition, based solely on the defendant's guilty plea to the crime of possession of a dangerous weapon.

3 We note that the Commonwealth's brief does not respond to the defendant's argument on this point.

So ordered.

By the Court (Green, Rubin & Agnes, JJ.⁴),

4 Panel members appear in order of seniority.
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Clerk Entered: December 10, 2014.