Opinion
No. 11–P–1153.
2012-10-1
COMMONWEALTH v. Ernest BAXTER.
By the Court (GRASSO, KANTROWITZ & GRAHAM, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On appeal from an order revoking his probation, the defendant maintains that (1) the notice of violation was insufficient, (2) the finding of violation rested on unreliable hearsay, (3) the judge failed to make sufficient findings, and (4) defense counsel rendered ineffective assistance of counsel. We affirm for substantially the reasons set forth in the Commonwealth's brief at pages six through twenty-two.
1. The violation notice. The defendant received timely written notice of the claimed violation. On December 8, 2010, he received a notice in hand stating that he was in violation because he (1) failed to register as a level three sex offender, (2) failed to report to his probation officer in the Norfolk County Superior Court Department on February 1, 2010, and (3) left Massachusetts without permission. The defendant raised no challenge to the adequacy of notice at either the preliminary hearing on December 10, 2010, or the final hearing on January 11, 2011. The notice the defendant received satisfies due process requirements. See Commonwealth v. Durling, 407 Mass. 108, 112–113 (1990). 2. The finding of violation. There is no merit to the contention that the finding of violation consisted solely of hearsay. Although he contested his failure to register as a level three sex offender, the defendant stipulated that he failed to report to probation and left Massachusetts without permission. Defense counsel advised the judge that the defendant had been arrested in Philadelphia, Pennsylvania, in August, 2010, as a fugitive from justice. The defendant's chosen strategy was to stipulate to the violation, as he had done in a surrender in the Norfolk County Superior Court Department on September 30, 2010, and to request that the judge order his commitment to run concurrent with the Norfolk commitment. Indeed, the entire focus of the violation hearing was not whether the defendant had violated probation, but whether he should receive jail credits commensurate with those in the Norfolk surrender. The defendant's stipulation defeats his claimed due process violation based on unreliable hearsay. See id. at 118;Commonwealth v. Negron, 441 Mass. 685, 691 (2004).
Defense counsel noted that the defendant had been held in custody on both this case and the Norfolk matter since his August 4, 2010, arrest in Philadelphia.
Beyond the stipulations, probation Officer Kathryn A. Moy testified that in February, 2010, she spoke with police in Opa–Locka, Florida, regarding the defendant, who was living there without permission. To the extent the violation rested in part on this testimony, the hearsay was sufficiently reliable to show good cause and to obviate the need for confrontation. See Commonwealth v. Negron, supra.
3. The written findings. The record establishes that the judge's decision to revoke the defendant's probation, explained both in writing and orally, satisfies due process requirements. See Commonwealth v. Durling, supra at 111; Commonwealth v. Morse, 50 Mass.App.Ct. 582, 593 (2000).
4. Ineffective assistance of counsel. On the record before us, the claim that defense counsel rendered ineffective assistance of counsel is without merit. The hearing transcript documents counsel's reasoned tactical choice not to contest what was indefensible and to focus instead on a request for jail credits for all the time that the defendant had been held since his arrest. See Commonwealth v. McCormick, 48 Mass.App.Ct. 106, 108–109 (1999).
Order revoking probation affirmed.