Opinion
No. 11–P–58.
2013-04-18
COMMONWEALTH v. Jamie CONNORS.
By the Court (TRAINOR, BROWN & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is an appeal from the revocation of probation and the denial of a motion for a new revocation hearing. We affirm.
I. Background. The defendant pleaded guilty to seventeen charges and received a sentence of nine to ten years for aggravated rape and five years' probation on and after completion of that sentence on the other convictions. After being found to be in violation of his probation, the defendant perfected a direct appeal and an appeal from the denial of his motion for a new revocation hearing. This court stayed the matter until the resolution of the motion for a new revocation hearing was rendered and then consolidated the matters.
II. Discussion. A. Due process. The defendant first argues that his probation revocation violated his due process rights because the judge predetermined his guilt. See Commonwealth v. Durling, 407 Mass. 108 (1990); Commonwealth v. Patton, 458 Mass. 119, 125 (2010). We disagree. When reviewing a probation revocation decision, the reviewing court must determine “whether the record discloses sufficient reliable evidence to warrant the findings by the judge.” Commonwealth v. Morse, 50 Mass.App.Ct. 582, 594 (2000). See Commonwealth v. Hill, 52 Mass.App.Ct. 147, 154 (2001). The assessment of “the weight and credibility of the evidence [is] within the judge's exclusive province.” Commonwealth v. Janovich, 55 Mass.App.Ct. 42, 50 (2002).
At the outset of the proceeding, the motion judge called the attorneys and a probation officer up to sidebar. Probation Officer Joseph DelNegro discussed sentencing and provided a brief synopsis of the violations, one of the violations being that the defendant left the State of Massachusetts without permission. Defense counsel then acknowledged that there was no defense to leaving the State without the authority to do so. DelNegro continued to recite grounds for the revocation; however, the judge interrupted by stating, “Well before we get to the details, one question I would note [that] ... [m]y only concern is how I would structure a sentence.” After additional conversation ensued about which charges could be revoked, the judge stated, “[S]o I could revoke his probation on two and three ... all right? I think I'll do that. I'll give you a chance to let everybody say their piece (inaudible) about the decision but that's what I'll do.”
During direct examination, the defendant stated, “I would leave the jurisdiction. I cannot deny that.”
During the hearing, the defendant testified and defense counsel stipulated that the defendant left the State. See Commonwealth v. Morse, 50 Mass.App.Ct. at 594 (judge's findings must show that the defendant violated conditions of his probation).
The terms of the defendant's probation specifically state that he must have express permission by the probation department before leaving the jurisdiction.
In addition to the defendant's admission, the evidence consisted of testimony by the defendant's ex-girlfriend that a physical confrontation occurred in Rhode Island and that the defendant may have stolen items from his sister. Reliable hearsay evidence may be offered as evidence in a probation revocation proceeding. See Commonwealth v. Durling, 407 Mass. at 118. See also Commonwealth v. Negron, 441 Mass. 685, 691 (2004).
The judge may have discussed different scenarios regarding sentencing but he specifically stated that he wanted to hear all of the evidence. Notwithstanding the evidence presented, the judge carefully tailored his findings to reflect that his decision was based on the defendant's admission to leaving the State. Once a judge finds a probationer to be in violation of the terms of his probation, “he can either revoke the probation and sentence the defendant or, if appropriate, modify the terms of his probation.” Durling, supra at 111.
B. Ineffective assistance of counsel. We also reject the defendant's claim that his counsel provided ineffective assistance at the probation hearing for failing to offer a signed waiver of extradition in evidence and eliciting certain testimony to highlight the relationship between the defendant and DelNegro. The ineffective assistance of counsel standard is familiar. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
As previously noted, the judge had an ample basis (including the defendant's own admission) to find that the defendant violated his probation. The extradition papers demonstrated the defendant's intent to relocate but, as noted within the record, it was only a part of the transfer application process. The filling out of the application did not mean that the defendant's request was approved or that he was granted express permission to leave the State. It would thus have been futile for defense counsel to present the waiver of extradition in evidence because it could not have disproved or refuted the defendant's violation.
Defense counsel's primary focus was to demonstrate that the defendant did not engage in physically violent behavior and that he was open with authorities in Massachusetts and Rhode Island about his sex offender status.
“Trial counsel's omission of a futile tactic constituted no fault, caused the defendant no harm, and will not support any claim of ineffective assistance.” Commonwealth v. Filoma, 79 Mass.App.Ct. 16, 24 (2011).
The defendant also argues that the his counsel was ineffective due to an actual conflict of interest. He claims his attorney's prior occupation as an assistant district attorney who was assigned to the court where his original trial was held amounted to an actual conflict. “The defendant bears the burden of proving that a genuine conflict of interest existed, and must do so without relying on mere conjecture or speculation.” Commonwealth v. Burbank, 27 Mass.App.Ct. 97, 103 (1989).
In this case, the judge neither abused his discretion nor otherwise committed an error of law in concluding that the defendant offered no credible evidence of an actual conflict. The Commonwealth offered, and the motion judge credited, the affidavit of the defendant's former defense counsel who stated that he explained his former position and asked whether the defendant would have a problem. The defendant said no. Defense counsel also stated that he told the defendant that he had no involvement with his prior case. In short, the judge could permissibly find that the defendant's argument was based on mere speculation. See Commonwealth v. Milley, 67 Mass.App.Ct. 685, 688 (2006). Contrast Pisa v. Commonwealth, 378 Mass. 724, 726 (1979).
Nor has the defendant met the requirement for showing a “potential” conflict of interest, because he has not demonstrated any actual prejudice flowed from the failure to introduce the waiver of extradition document. In any event, as we have already stated, it would have been futile to proffer that document. See Commonwealth v. Teti, 60 Mass.App.Ct. 279, 286–287 (2004).
Order revoking probation affirmed.
Order denying new revocation hearing affirmed.