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Commonwealth v. Carbucia

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Jun 4, 2012
11-P-497 (Mass. App. Ct. Jun. 4, 2012)

Opinion

11-P-497

06-04-2012

COMMONWEALTH v. GERALDO CARBUCIA.


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 the result of a final surrender hearing, and contends that he was deprived of his right to due process because he was not given a sufficient opportunity to present evidence to substantiate his excuse for violating the terms of his probation. We affirm.

This case previously was dismissed on the ground that the notice of appeal was not timely filed. Although not referenced in either of the parties' briefs, approximately two years after the order modifying probation, the defendant had submitted a motion to file a late notice of appeal and a single justice of this court had allowed the late notice of appeal nunc pro tunc. See Commonwealth v. White, 429 Mass. 258, 263 (1999). After the dismissal entered, the defendant filed a petition for rehearing, informing this panel of the single justice action. We granted the rehearing petition, vacated the dismissal, and now address the merits of the appeal herein.

On November 26, 2008, the defendant admitted to sufficient facts with respect to the offense of possession of crack cocaine. The case was continued without a finding, and the defendant was placed on probation for twelve months. On December 30, 2008, a notice of probation violations issued based on the defendant's failures to report to his probation officer, to comply with required drug and alcohol testing, and to make required payments -- all of which were terms of his probation. On the two dates that the defendant failed to report, he telephoned and left voice messages saying that he was sick. The final surrender hearing was held on February 2, 2009. On that date, the judge found that the defendant had violated the terms of his probation by twice failing to report to his probation officer, failing to comply with required drug and alcohol testing, and failing to make required payments. As a result, the judge vacated the continuance without a finding, entered a finding of guilty, and sentenced the defendant to probation with the same terms, conditions, and end date.

At the hearing, the defendant presented a letter that he had written to his probation officer, Mary Ball, claiming he had failed to report because he was sick, had a history of depression, and was being treated at a health center for physical problems. Ball testified that 'the letter [was] very brief, it [said] nothing.' Ball further testified that she had 'nothing to show for why [the defendant had not] complied within the time that he was given to comply with some part of his probation,' and that the defendant's letter was not helpful to the probation department because it failed to explain the defendant's condition or provide any details regarding his treatment. The judge added that the letter represented only the defendant's 'self-reporting that he wasn't feeling well and [was] sick.'

On appeal, the defendant argues that the hearing violated his right to due process because he was not given sufficient opportunity to present evidence or witnesses to support his claim that he had failed to report to his probation officer because he was sick. This argument is without merit. The defendant was notified of the final surrender hearing more than one month before it occurred, by written notice informing the defendant that he would have the opportunity to present his own evidence. The defendant was present at the hearing, and was represented by counsel. To support his claim of illness, the defendant presented the self-written letter described, supra, but did not attempt or request to present any witnesses or any other evidence to support his claim. The defendant did not request a continuance or indicate that additional evidence could be obtained. In sum, the defendant was given the opportunity to present evidence to substantiate a justifiable excuse for violating the terms of his probation, but simply failed to make an adequate showing. See Black v. Romano, 471 U.S. 606, 612 (1985) (probationer entitled to opportunity to show 'justifiable excuse' for violation).

The defendant also contends that his lawyer rendered ineffective assistance because the lawyer failed to present evidence to show that the defendant had been sick. But the defendant has offered nothing that would support this claim. To the contrary, as noted, supra, the defendant has not provided medical information, nor are there affidavits that lend any support to the claim.
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Order modifying probation affirmed.

By the Court (Berry, Kafker & Mills, JJ.),


Summaries of

Commonwealth v. Carbucia

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Jun 4, 2012
11-P-497 (Mass. App. Ct. Jun. 4, 2012)
Case details for

Commonwealth v. Carbucia

Case Details

Full title:COMMONWEALTH v. GERALDO CARBUCIA.

Court:COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

Date published: Jun 4, 2012

Citations

11-P-497 (Mass. App. Ct. Jun. 4, 2012)