Opinion
16-P-235
04-20-2017
COMMONWEALTH v. Kelly Jean TRUDEAU.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals after a finding that she violated her probation, asserting that the judge erred in failing to conduct a colloquy to ensure a knowing and voluntary waiver of her right to a hearing. We recite the procedural history and the undisputed relevant underlying facts.
The defendant admitted to facts sufficient for findings of guilty of larceny in an amount more than $250 and larceny from a person. She received a continuance without a finding for eighteen months to run concurrently with a previous admission to facts sufficient for findings of guilty on the charges of receiving stolen property in an amount more than $250 and larceny in an amount less than $250 by false pretense. The conditions of her probation included payment of $250 in restitution, weekly drug screens, and signing releases authorizing the probation department (department) to obtain the screen results directly from her doctor.
The defendant was subsequently detained and given notice of probation violation. The testifying probation officer stated that the defendant failed to report for a random drug screening, failed to provide a valid address, failed to notify the department of a change in address, and failed to send by facsimile weekly drug screens completed at the location where she received her Suboxone treatment. In addition, the officer testified that the defendant's "whereabouts ha[d] been unknown" for a two-month period in 2014.
At the final violation hearing, after the officer testified to the allegations of the violation, the judge asked the defendant, "[I]s there an admission to the violation of probation?" and defense counsel answered, "There is." Following disposition arguments from counsel, the judge sentenced the defendant to eighteen months committed.
Rule 6(b) of the District/Municipal Courts Rules for Probation Violation Proceedings (2000) states that "[p]robation violation hearings shall proceed in two distinct steps: the first to adjudicate the factual issue of whether the alleged violation or violations occurred, the second to determine the disposition." Rule 6(g) of those rules states, "The court may accept an admission to an alleged probation violation and a waiver of the right to a violation hearing only upon a determination that the admission and waiver have been made knowingly and voluntarily."
Here, the defendant's admission and waiver were made knowingly and voluntarily when counsel answered affirmatively to the judge's question, "[I]s there an admission to the violation of probation?" and then proceeded to offer mitigating evidence to influence the defendant's sentence. It is clear that the defendant and counsel decided that it was not in the defendant's best interest to have a full hearing and that the best course of action, conceivably to maximize the impact of her argument, was to focus on sentencing considerations. The defendant was prepared with evidence of recent negative drug screening results as well as evidence that her mother had contributed toward the defendant's outstanding restitution debt to show that she had begun complying with the terms of her probation.
The defendant's assent to the officer's sentencing recommendation raises the possibility that the defendant stipulated to the violation as part of a negotiated agreement with the department. Although the judge's sentence was more severe than the officer's recommendation, the defendant does not argue that counsel failed to advise her that the judge was not bound to accept any agreed-upon recommendation.
Furthermore, the defendant's contention that she did not understand the nature of her admission is unavailing. At the initial violation hearing the defendant was made aware of the allegations against her, but declined when given the opportunity to question the officer's assertions. At the final hearing, before she admitted to violating her probation, the officer once again asserted the allegations against the defendant. As the docket indicates, she was familiar with probation proceedings as she had previously violated her probation.
The defendant's assertions on appeal could have been averted if the judge had asked the defendant whether she understood that her admission of a violation necessarily incorporated a waiver of the hearing; , however, considering the totality of circumstances, see Commonwealth v. Durling, 407 Mass. 108, 118 (1990), we are satisfied the defendant knowingly and voluntarily admitted to the violation and waived the hearing.
Citing widely accepted Federal jurisprudence, we have determined that a colloquy is not constitutionally required for the acceptance of a defendant's probation violation admission. See Commonwealth v. Sayyid, 86 Mass. App. Ct. 479, 488-489, 492-493 (2014), and cases cited therein. The Supreme Judicial Court has not addressed the issue.
"[A] probationer need not be provided with the full panoply of constitutional protections applicable at a criminal trial." Commonwealth v. Durling, 407 Mass. 108, 112 (1990).
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Order revoking probation and imposing sentence affirmed.