Opinion
13-P-1341
02-18-2015
COMMONWEALTH v. CHARLES WHITMORE.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Charles Whitmore, violated the terms of his probation after his probation officer visited him at home and found him intoxicated. In this appeal, the defendant argues that the probation terms were vague and counsel provided ineffective assistance by not calling the probation officer as a witness. We affirm.
Notice of probation terms. The defendant claims that the terms of his probation were unconstitutionally vague because the order of probation stated "sobrietor 6 months only — 2/14/12," which the defendant claims to have misunderstood as meaning that he needed to remain sober only until that date.
The defendant pleaded guilty on November 18, 2010, to a second offense of operating a motor vehicle under the influence, in violation of G. L. c. 90, § 24(1)(a)(1). The judge in that case sentenced him to eighteen months of incarceration, with sixty days served and the balance suspended for two years.
"[A] condition of probation must provide reasonable guidance as to the conduct prohibited so that people of common intelligence will understand its meaning." Commonwealth v. Ruiz, 453 Mass. 474, 479 (2009) (quotation marks omitted). Conditions of probation are unconstitutional if they are vague, and due process requires that a defendant receive fair notice of conduct that will constitute a violation. Id. at 478-479. "The notice requirement can be satisfied by an imprecise but comprehensible normative standard so that [people] of common intelligence will know its meaning." Commonwealth v. Kendrick, 446 Mass. 72, 75 (2006) (quotation marks omitted).
The defendant's probation order stated that probation would last from August 14, 2012, to August 14, 2013. Under the section "Special Conditions of Probation," a box was checked to the left of a line that began "Drug/Alcohol Testing." This line stated that the defendant must remain "drug free" and "alcohol free" and "[s]ubmit to random testing as required." Under a line that began "Other Conditions," a handwritten notation states "sobrietor 6 months only — 2/14/12." The hearing transcript, order of probation, and other record materials do not precisely define "sobrietor," but the term generally refers to an at-home alcohol breath-testing device.
Testimony at a revocation hearing on May 13, 2013, revealed that on April 11, 2013, the defendant's probation officer made a home visit and found him drinking from small alcohol bottles, with empty bottles around the apartment. A breath test revealed a blood-alcohol level of .219. The judge revoked probation and imposed the balance of a suspended sentence.
Here, the conditions of the defendant's probation were not vague because a person of "common intelligence" could understand that "sobrietor 6 months only — 2/14/12," in conjunction with the start and stop date and requirement to remain alcohol free, meant only that testing under the "sobrietor" device would last until February 14, 2012. See Commonwealth v. Kendrick, 446 Mass. at 75. The defendant's claimed misunderstanding, that the handwritten notation meant only that he needed to remain sober until that date, is unavailing. Whether the defendant received adequate notice of conduct that violates the terms of probation is an objective measurement from the perspective of a person of "common intelligence," not a subjective inquiry, and here the notice requirement was satisfied. See Commonwealth v. Ruiz, 453 Mass. at 479.
Ineffective assistance of counsel. The defendant argues that counsel provided ineffective assistance because he failed to call as a witness the probation officer, who supposedly would have testified that he shared the defendant's understanding of the terms of probation.
The preferable manner in which to ascertain whether counsel was ineffective is to file a motion, with an affidavit from counsel, and have the matter adjudicated at the trial court level. That was not done here, fatally so. See Commonwealth v. Zinser, 446 Mass. 807, 810 (2006).
Even if we were to consider the merits, the defendant would fare no better. To show ineffective assistance of counsel, the defendant must show "serious incompetency, inefficiency, or inattention of counsel -- behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer," and that such incompetence "has likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Valentin, 470 Mass. 186, 189-190 (2014), quoting from Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). There must be "some showing that better work might have accomplished something material for the defense." Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977).
Here, even if counsel had called the probation officer as a witness, the defendant has failed to show that such testimony would have made a difference in the outcome, as the probationary terms clearly stated that the defendant was to remain alcohol free during the probationary period. Also, as this was apparently the defendant's third revocation hearing it appears that if, he had any questions, he had an adequate opportunity to address them.
We do not know the probation officer's view, as appellate counsel failed to proceed in the preferred manner which would have settled the question.
Counsel did not provide ineffective assistance here, as he did not deprive the defendant of an otherwise substantial ground of defense at the revocation hearing. See Commonwealth v. Valentin, 470 Mass. at 189-190.
For these reasons, and for substantially those in the brief of the Commonwealth, we affirm.
Order revoking probation and imposing balance of suspended sentence affirmed.
By the Court (Cypher, Kantrowitz & Carhart, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: February 18, 2015.