Opinion
10-P-1233
12-12-2011
COMMONWEALTH v. TIMMY K. FERGUSON.
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, Timmy K. Ferguson, appeals from an order revoking his probation and committing him to serve a two-year sentence. We affirm.
Background. In August, 2003, the defendant pleaded guilty to a single count of larceny over $250 by false pretenses. The terms of the plea agreement, as noted on the tender of plea form signed by the defendant, included a two-year suspended sentence with two years of probation. In addition, the defendant agreed to pay $21,300 in restitution within thirty days of the plea. He subsequently sought and obtained a fifteen-day extension of the deadline for his restitution payment.
Before reporting to the probation department to sign a written statement of the terms and conditions of his probation, the defendant waived rendition and was returned to Florida to attend to criminal matters he had pending there. In early September, the probation department sent a letter to the Florida address the defendant had provided, reminding him that he was required to report to the probation department and to pay the agreed restitution. The defendant failed to appear or to pay, and a warrant issued for his arrest on September 26, 2003.
In 2009, the Commonwealth was notified that the defendant was serving a State prison sentence in Florida unrelated to the matters which he had returned to Florida to address at the time of his plea. A detainer was lodged on the defendant's outstanding warrant, and he was returned to Massachusetts through the rendition process on the completion of his Florida sentence. On January 8, 2010, the defendant was found in violation of his probation, and the suspended sentence was imposed.
Unreasonable delay. The defendant argues that the revocation of his probation was improper due to the probation department's unreasonable and prejudicial delay in seeking revocation. We disagree.
The court retains jurisdiction for a reasonable time after the probationary term expires to revoke probation due to in-term violations. See Commonwealth v. Sawicki, 369 Mass. 377, 384-385 (1975). Delay prejudicing a defendant, see Commonwealth v. Ward, 15 Mass. App. Ct. 388, 391-392 (1983), or delay lasting years during which the defendant complies with all other conditions of probation, see Commonwealth v. Mitchell, 46 Mass. App. Ct. 921, 921-922 (1999), is not reasonable. But delay resulting from a probationer's evasion, see Commonwealth v. Baillargeon, 28 Mass. App. Ct. 16, 20 (1989), or benefitting the probationer, see Sawicki, supra at 386, is generally considered reasonable.
In this case, the record discloses no evidence of any attempt by the defendant at any time to comply with the conditions of his probation. Notably, this was not a typical case in which the probationer was required to refrain from certain conduct; rather, he had an affirmative duty to perform a specific act (payment of restitution) as a special condition of his probation. The defendant's signature on the tender of plea form, as well as the fact that he sought and received an extension on the restitution payment, amply show that he was aware of his obligation to pay restitution. In addition, he failed even to report to the probation department, which constituted an ongoing violation for the full two years of his term. Compare Mitchell, supra at 922 (probationer continued to make required payments and comply with all conditions during delay despite failing to make full restitution). Moreover, the default warrant for the defendant's arrest issued less than sixty days after his guilty plea, well within the probationary term. Finally, the defendant made no showing of any specific prejudice resulting from the delay.
While the Commonwealth perhaps could have been more assiduous in its attempts to resolve this matter, we cannot say that the delay was unreasonable in light of the defendant's behavior. Although 'keeping the authorities informed is a probationer's elementary duty,' Baillargeon, supra at 20, the defendant never made any attempt to contact the probation department. He cannot now 'demand spit and polish efficiency of these agencies, while choosing to be unsubmissive and elusive himself.' Id. at 21. Evading the authorities' attention for a few years does not relieve the defendant of the obligation that he voluntarily undertook as a condition of his plea, especially in the absence of any good-faith effort to fulfill that obligation.
Sufficiency of the evidence. The defendant claims that the evidence at the hearing was insufficient to establish a violation. At a probation revocation hearing, the Commonwealth's burden is to establish a violation by a preponderance of the evidence. Commonwealth v. Holmgren, 421 Mass. 224, 226 (1995). The evidence here was sufficient to meet that standard.
First, as noted above, there was ample evidence that the defendant was on notice that he was required to pay restitution. The evidence before the judge was likewise sufficient to prove by a preponderance of the evidence that the defendant was the same individual as the Timmy K. Ferguson convicted in 2003. The cases cited by the defendant for the contrary proposition required proof beyond a reasonable doubt. See Commonwealth v. Koney, 421 Mass. 295, 302 (1995). Finally, the defendant's contention that the Commonwealth was required to prove that he had not paid restitution directly to the victim is without merit. When restitution is ordered as a condition of probation and is not paid at the time of the plea, it is required by law to be paid to the probation officer. See G. L. c. 276, § 92. Having shown that it was not so paid, the Commonwealth carried its burden on that issue.
At the hearing, the defendant objected on hearsay grounds to the admission of a Florida Department of Corrections 'Inmate Release Information Detail' containing the defendant's basic biographical information. Hearsay is admissible in District Court probation violation hearings, see rule 6(a) of the District Court Rules for Probation Violation Proceedings (2000), provided that it is sufficiently reliable to satisfy due process requirements. See Commonwealth v. Durling, 407 Mass. 108, 115 (1990). We discern no error in the judge's implicit finding that the Inmate Release Information Detail was sufficiently reliable as evidence that the defendant before her shared a name and date of birth with the Timmy K. Ferguson who signed the tender of plea in 2003.
Written findings. The defendant also argues that the hearing judge improperly failed to make written findings in accordance with Rules 6 and 7 of the District Court Rules for Probation Violation Proceedings (2000). Rule 6(b) applies only where 'the sole evidence submitted to prove a violation of probation is hearsay.' Since the defendant was required to pay restitution to his probation officer, that officer's testimony that he had not paid was direct, nonhearsay evidence of a violation. Rule 6(b) therefore does not apply in this case.
Rule 7(c) provides that upon a finding of a violation, the 'court shall make written findings of fact to support the finding of a violation, stating the evidence relied upon.' This rule tracks the relevant due process requirements. See Commonwealth v. Durling, 407 Mass. 108, 113 (1990). 'While written findings are preferable, . . . oral recitation of reasons for revocation, when transcribed, satisfies the requirement of a written statement by the fact finder.' Commonwealth v. King, 71 Mass. App. Ct. 737, 740 n.5 (2008), citing Fay v. Commonwealth, 379 Mass. 498, 504-05 (1980). The judge's findings of fact in this case, though somewhat sparse, are sufficient when combined with the rest of the record to comport with due process. See Commonwealth v. Morse, 50 Mass. App. Ct. 582, 593-594 (2000).
Order revoking probation and imposing sentence affirmed.
By the Court (Berry, Meade & Milkey, JJ.),