Opinion
16-P-310
05-24-2017
COMMONWEALTH v. David C. ANDERSON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, David C. Anderson, a registered sex offender, was on probation after completing service of a split sentence to the house of correction for numerous offenses to which he had pleaded guilty including dissemination of obscene material, attempting to disseminate material harmful to a minor, and threatening to commit a crime (rape). On January 5, 2015, the defendant received written notice that he was in violation of the conditions of his probation because, among other things, he had missed two sex offender treatment sessions and had accessed child pornography in violation of specific terms of his probation. The judge heard testimony from the defendant's probation officer, two law enforcement officers, and a social worker and found the defendant in violation of his probation. On disposition, the judge ordered the defendant to serve the balance of his suspended sentence and modified the previously imposed conditions of probation. We affirm.
We review a judge's decision to revoke the defendant's probation for an abuse of discretion. We will examine the record to determine "whether [it] discloses sufficient reliable evidence to warrant the findings by the judge." Commonwealth v. Morse, 50 Mass. App. Ct. 582, 594 (2000). Here, the defendant contends that the judge abused his discretion by revoking his probation based on "wholly unreliable hearsay" and without confirming the underlying facts. In particular, he contends that the statement he made to his probation officer, Catherine Calapa, without further corroborating evidence, is insufficient to support the judge's finding that he violated his probation.
The defendant only challenges the portion of his statement about viewing child pornography on his cellular telephone (cell phone); at the hearing, he stipulated that he violated his conditions of probation by smoking marijuana and missing two sex offender treatment appointments.
The defendant's probation officer testified that the defendant told her: "Yes, I was looking at child porn, and I have been smoking marijuana." This statement by the defendant is not hearsay, and was admissible. See Commonwealth v. Marshall, 434 Mass. 358, 365 (2001). The judge was entitled to rely on it without limitation. See Commonwealth v. McCowen, 458 Mass. 461, 485 (2010). See generally Mass. G. Evid. § 801(d)(2)(A) (2017). Based solely on the defendant's admission that he had violated a condition of his probation, there was sufficient admissible evidence to justify the revocation of his probation.
There was evidence that when the defendant was arrested on the probation violations, he had a cell phone in his possession and remarked, "Did you find stuff on my phone?"
The judge also heard additional evidence that does corroborate the defendant's statement. In addition to his remark to Detective Pigeon ("Did you find stuff on my phone?"), he also told his probation officer, "I didn't want to have a phone with access to the Internet because there are too many temptations," and testimony from another witness for the Commonwealth that it appeared that the defendant's cell phone had been "wiped" the day of the defendant's arrest. Finally, the defendant's probation officer testified that before the defendant admitted to viewing child pornography, she received a telephone call from the defendant's counselor, who reported that the defendant was viewing child pornography. Because this case also includes a stipulation by the defendant that he was in violation of the condition of his probation prohibiting his use of marijuana, it is unnecessary for us to address the question whether corroboration is required when the sole basis for the revocation of probation is the defendant's admission to a violation. See Commonwealth v. Simon, 57 Mass. App. Ct. 80, 91 (2003).
The defendant also alleges that the judge deprived him of due process by hearing arguments on disposition before making a formal finding that the defendant violated conditions of his probation, and by not making written findings of the reasons for his decision. Because the defendant did not preserve these alleged errors by way of objection or a request for written findings soon after the hearing, we review his claim for a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).
After hearing testimony from four witnesses, defense counsel gave a closing argument, in which she noted that the defendant stipulated to violating the conditions of his probation by smoking marijuana and missing two sex offender treatment appointments, but argued that there was insufficient evidence to find that he viewed child pornography. Defense counsel then asked if the judge would like her to wait to argue disposition. The judge responded, "Well you've admitted that he's in violation somewhat, so why don't you go ahead and address disposition," which defense counsel then did. In addition, prior to discussing disposition, the defendant's probation officer told the judge that she had not given him the record yet because she was trained to wait until the judge "makes a finding of violation," to which the judge replied, "Yes. Is there anything beyond this case?" Thus, at least twice before hearing arguments on disposition, the judge made "an implicit and functionally equivalent finding of a violation." Commonwealth v. Dubowski, 58 Mass. App. Ct. 292, 293 (2003).
The defendant's references to the various court rules are not persuasive. Dubowski concerns probation violation proceedings in the District Courts, supra at 292-293, and the Superior Court guidelines cited by the defendant did not take effect until February 1, 2016, after the hearing in this case. In any case, there is nothing in the new guidelines that is in conflict with the procedure followed in this case.
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Although a defendant is entitled to receive a written statement of the evidence relied on and the reasons for revocation, "it is not an inflexible or invariably mandatory requirement and can be satisfied in other ways." Morse, 50 Mass. App. Ct. at 593. Here, in full compliance with the requirements of due process, we have a complete transcript of the probation violation hearing which sets forth the evidence in support of the charges and the judge's reasons for revoking the defendant's probation. See ibid. (entirety of transcript constituted written statement of evidence relied on).
Order revoking probation and imposing sentence affirmed.