Opinion
13-P-1755
01-13-2015
COMMONWEALTH v. FRANCIS E. ARENELLA.
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 appeals from the revocation of a term of probation that originated with his October 3, 2002, guilty pleas to five charges. At that time, the plea judge imposed a sentence of ten years of straight probation, concurrent on all counts. The conditions of probation required the defendant to obey all local, State and Federal laws and court orders; report once a week in person to probation; enroll in sex offender counseling; refrain from unsupervised contact with children under sixteen years of age; refrain from the possession of any kind of pornography; and permit probation to check his computer for pornography.
The charges were: one count of possession of child pornography, one count of intimidation of a witness, one count of assault and battery, and two counts of providing obscene matter to a minor.
Thereafter, on five separate occasions between 2004 and 2012, the defendant was surrendered for alleged probation violations. On three of those occasions, he was found in violation. This appeal arises from his sixth surrender, in which four violations were alleged: (1) commission of a new crime, i.e. threatening to commit a crime, in violation of G. L. c. 275, § 2; (2) failing to comply with the condition prohibiting his possession of pornography; (3) failing to comply with the condition requiring sex offender counseling; and (4) failing to comply with the requirement of weekly meetings with probation.
On the first occasion, he was not found in violation, but the judge imposed a new condition (that he could not be employed as a limousine driver). On the second occasion, he was not found in violation, but he was ordered to enter a sex offender treatment program within thirty days. On the third occasion, he was found in violation for refusing to comply with sex offender counseling, and was ordered to join another counseling group immediately. On the fourth occasion, he was found in violation for having been terminated from sex offender counseling, and, again, was ordered to join a new group immediately. On the fifth occasion, he again was found in violation for having been terminated from sex offender counseling, and for holding a job that permitted potential unsupervised contact with children under the age of sixteen. In that instance, the judge sentenced him to one year in a house of correction on one of the underlying convictions and reprobated him on the remaining charges.
After an evidentiary hearing at which several witnesses testified, a judge of the Superior Court found the defendant in violation. She then ordered that the defendant undergo examination in aid of sentencing at Bridgewater State Hospital, and, after receiving the results, sentenced the defendant to four to five years in State prison.
More particularly, the defendant was sentenced to not more than five nor less than four years on the possession of child pornography charge and the two counts of dissemination of matter harmful to minors, and two and one-half years concurrent on the assault and battery charge.
Having considered the defendant's arguments on their merits, we affirm. The facts underlying the alleged violations were largely uncontested and adequately supported by the testimony and other evidence presented at the hearing. The defendant did not dispute the facts surrounding the criminal complaint for threats; rather, he asserted that his statements were protected speech. He also did not dispute that pornography was found on his computer; rather, he advanced several alternative explanations for its presence that the judge was entitled to reject (e.g., the pornography was sent to him unsolicited, it was old, it belonged to his son). The defendant acknowledged that he had been terminated from his sex offender counseling group and also did not deny that he had missed nine weeks of probation meetings; his excuse was that he had a medical condition that prevented him from traveling to appointments. The evidence showed, however, that he was in violation even before he developed a condition making it difficult for him to travel, and that he missed the appointments despite having been offered transportation and other accommodations to enable him to comply.
On February 13, 2013, the defendant pleaded guilty to the new charge of threatening to commit a crime. Although the Commonwealth contends that this guilty plea renders the defendant's appeal moot, the defendant has provided this court with a copy of an order indicating that he subsequently was allowed to withdraw his plea. As we have no reason to question the authenticity of the document provided to us, we address the appeal on the merits.
Based upon the testimony of the recipient, a Malden city councilor, and the investigating police officer, the judge reasonably could find that the defendant had communicated threats, and not protected speech. There was evidence that the defendant, who also had been disruptive at city council meetings, repeatedly telephoned the councilor, sent him e-mails, and posted comments referring to him on the Internet. The content of the communications included a statement that the defendant had grown up with and learned "how to play the game" from members of the Winter Hill gang, a reference to gun shots ("bang, bang, bang"), and the defendant's description of himself as "evil." See generally, Commonwealth v. Milo M., 433 Mass. 149, 151-152 (2001).
While the defendant correctly points out that the judge failed to issue a separate written statement of the evidence relied on and the reasons for revocation, doing so is not an "inflexible or invariably mandatory requirement and can be satisfied in other ways." Commonwealth v. Morse, 50 Mass. App. Ct. 582, 592-593 (2000). It may be inferred from the record that the judge found the allegations to be true and the defendant's explanations and excuses unavailing. Her ultimate finding of violation of probation was justified by any or all of the allegations.
There is no merit to the defendant's contention that the proceedings were fatally flawed because one of the transcript volumes (March 5, 2012) does not show that the probation officer was sworn before participating in the presentation of the case. However, there are suggestions in two other transcripts (February 1, 2012, and March 5, 2012) that it was the judge's practice to have the probation officer sworn. In any event, the defendant raised no objection at trial; nor did he contest the presentation as unreliable. The argument is waived, and we discern no error creating a substantial risk of a miscarriage of justice.
The defendant's final point, that revocation was not a proper disposition disregards his repeated inability to comply with the terms of probation, the many opportunities given to him to avoid incarceration, and the care taken by the judge in delaying sentencing until after he was evaluated.
Order revoking probation affirmed.
By the Court (Kafker, Cohen & Vuono, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: January 13, 2015.