Opinion
14-P-1973
02-17-2016
COMMONWEALTH v. KATIE A. EBERT.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Katie A. Ebert, appeals from an order revoking her probation and finding that she violated the terms of her probation. Her probationary terms were that she remain drug-free and that she was subject to random drug screenings. After being reprobated three times for violating terms of her probation, she was found in violation and sentenced to sixty days in the house of correction. On appeal, she argues that the judge abused her discretion because the Commonwealth had not proven by a preponderance of the evidence that Ebert violated the terms of her probation. Specifically, the defendant argues that the drug test evidence was inadequate and unreliable because although she tested positive for opiates on January 8, 2014, she tested negative for opiates on January 9, 2014.
Although she has completed the sixty-day sentence, the defendant argues that the issue is not moot because the probation violation will remain on her record and may have future collateral consequences. We agree. Commonwealth v. Lally, 55 Mass. App. Ct. 601, 602 n.1 (2002). The Commonwealth does not argue otherwise.
The judge rejected this argument because Ebert did not show that a person could not accurately test positive one day and then test negative the next day. The judge prepared and signed the probation violation finding and disposition form. It shows that the judge found that the defendant failed to complete the treatment program, failed to comply with testing requirements because opiates were found in her system, and failed to comply with other probation conditions by violating probation three times. "A proposition is proved by a preponderance of the evidence 'if it is made to appear more likely or probable in the sense that actual belief in its truth, derived from the evidence, exists in the mind or minds of the tribunal notwithstanding any doubts that may still linger there.'" Commonwealth v. Hill, 52 Mass. App. Ct. 147, 154 (2011) (citation omitted). The Commonwealth's evidence was sufficient for the judge to find by a preponderance of the evidence that the defendant had violated the conditions of her probation. The judge did not abuse her discretion.
The findings and the docket indicate that the defendant admitted that she violated her probation. The transcript does not reflect this admission, although there is an inaudible portion that has not been corrected. We do not rely on the admission.
Order revoking probation affirmed.
By the Court (Cypher, Wolohojian & Carhart, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 17, 2016.