Opinion
15-P-429
01-26-2016
COMMONWEALTH v. JOSEPH HUGAL.
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
After pleading guilty to armed assault with intent to murder, assault and battery by means of a dangerous weapon, mayhem, and assault by means of a dangerous weapon, the defendant was sentenced to prison. In addition, he was placed on lifetime probation subject to specific conditions, which the defendant unsuccessfully moved to modify or terminate on five separate occasions. On appeal, the defendant argues that the judge improperly denied his sixth request for modification or termination of probation. He makes numerous arguments in support of his claim that are either waived, improper in this appeal, or meritless.
Conditions required the defendant to: (1) obtain a prescription for his psychiatric medication and continue to take it; (2) establish a relationship with a psychiatrist or other mental health professional and continue treatment as long as necessary; (3) maintain no contact with the victims or their families; (4) understand that failure to comply with all the terms of his probation would result in his default and arrest.
The defendant claims that the judge's denial of his motion constitutes violations of Massachusetts law, as well as the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. We disagree. Massachusetts General Laws c. 276, § 87, as appearing in St. 1974, c. 614, permits a Superior, District, or Juvenile Court judge to "place on probation in the care of its probation officer any person before it charged with an offense or a crime for such time and upon such conditions as it deems proper." A judge may then modify probationary terms "from time to time as a proper regard for the welfare" of both the defendant and community alike. Buckley v. Quincy Div. of the Dist. Ct. Dept., 395 Mass. 815, 818 (1985).
The defendant also claims that he pleaded guilty as a result of ineffective assistance of counsel coupled with an inability to object to the actions of his attorney because he was taking strong antipsychotic medication. Neither a motion to terminate probation nor this appeal is the proper forum to raise and litigate such claims. As such, we decline to resolve them here.
The defendant also maintains G. L. c. 276, § 87, is unconstitutionally vague. Because this claim is not properly before us as a general or as-applied challenge, it is waived. See Commonwealth v. Moses, 436 Mass. 598, 605 n.4 (2002); Commonwealth v. Figueroa, 83 Mass. App. Ct. 251, 266 (2013). In any event, the statute itself and the specific conditions of the defendant's probation are comprehensible such that "men of common intelligence will know [their] meaning." Commonwealth v. Gallant, 373 Mass. 577, 580 (1977), quoting from Commonwealth v. Orlando, 371 Mass. 732, 734 (1977).
In this instance, the judge did not abuse his discretion in denying the defendant's motion based on the Commonwealth's and the defendant's submissions. See Commonwealth v. Morales, 70 Mass. App. Ct. 839, 846 (2007). Although a judge may eliminate or modify conditions where a defendant has performed exceptionally well, or there has been a material change in circumstances, the judge here could properly find that the defendant was not sufficiently rehabilitated to warrant modification to conditions of his probation or elimination of probation altogether. See Commonwealth v. Goodwin, 458 Mass. 11, 18 (2010). Moreover, the judge implemented some of the conditions the defendant contends violate his fundamental rights pursuant to the defendant's own motion to transfer his probation to Florida. Contrary to the defendant's assertions, his continuing probation sentence is proper and does not violate double jeopardy principles. See Commonwealth v. Leggett, 82 Mass. App. Ct. 730, 739 (2012). The judge properly denied the defendant's motion, and thus, did not abuse his discretion.
Conditions added to the modified probation order for transfer to Florida included: (1) 10:00 P.M. to 6:00 A.M. curfew; (2) drug screens; (3) drug and alcohol evaluation; (4) mental health treatment; (5) prohibitions on alcohol or presence at places where alcohol is sold as the primary source of income; (6) payment for the cost of supervision; and (7) reasonable searches of the defendant's residence or person.
We have carefully considered each of the arguments presented in the defendant's brief. To the extent that we have not specifically addressed any particular claim, we consider it without merit.
Order denying motion to modify or terminate probation affirmed.
By the Court (Green, Vuono & Meade, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: January 26, 2016.