Opinion
No. 15–P–1000.
05-20-2016
COMMONWEALTH v. Jovet DE LA PAZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Jovet De La Paz, appeals from the revocation of his probation and the order requiring him to serve the balance of his suspended sentence. On appeal, the defendant argues that his right to due process was violated because he received inadequate notice of when his probation was to begin and end, and that the judge erroneously revoked his probation without holding a full evidentiary hearing as requested. We affirm.
Discussion. 1. Notice. The defendant argues that he did not receive adequate notice of the durational terms of his probation, in violation of his right to due process, because the written order of probation conditions described the period of probation as beginning on June 7, 2013, and ending on December 8, 2014. The defendant observes that the order was thus inconsistent with the terms of probation described orally by the judge at the time of sentencing (and, therefore, was ambiguous). The defendant further argues that as a result of this ambiguity, he was unaware that he was still on probation in July, 2014, when he committed his subsequent offense. We disagree.
The judge imposed the following sentence:
“I would sentence him to 18 months in the [h]ouse of [c]orrection on each count, 6 months to be served directly. That'd be on and after the sentence he is serving right now, the balance suspended for one year, with the conditions there be no drugs or alcohol, there be random testing. Be interviewed by [p]robation for drug counseling as directed by [p]robation. Stay away from that address where he stole these items. Have no contact with that named victim. I would recommend—make a Howard Street recommendation .... all the victim/witness fee, and the $65 per month probation fee, again, on release.”
--------
We review the defendant's constitutional claims of error to determine “whether the error, if any, ‘was harmless beyond a reasonable doubt.’ “ Commonwealth v. Kelsey, 464 Mass. 315, 319 (2013), quoting from Commonwealth v. Bacigalupo, 455 Mass. 485, 495 (2009). We review the factual findings for an abuse of discretion. See Commonwealth v. Christian, 46 Mass.App.Ct. 477, 482, S. C., 429 Mass. 1022 (1999). “[P]robationers are entitled to clear guidance as to ‘when their actions or omissions will constitute a violation of their probation.’ “ Commonwealth v.. Ruiz, 453 Mass. 474, 479 (2009), quoting from Commonwealth v. Lally, 55 Mass.App.Ct. 601, 603 (2002). “A judge's inquiry whether a defendant has received the required ‘fair notice’ is not ‘confined to the four corners of the probation order’; rather, the order's meaning may be illuminated by the judge's statements and other events that are part of the notification process.” Ruiz, supra at 479–480, quoting from United States v. Gallo, 20 F.3d 7, 12, 13 (1st Cir.2004). Additionally, “[w]hile a judge ‘is not barred from placing a defendant on probation during the period of his incarceration,’ there must be evidence that the judge in fact did so.” Ruiz, supra at 480, quoting from Commonwealth v. Juzba, 44 Mass.App.Ct. 457, 461 (1998).
Here, the defendant pleaded guilty to three charges on June 7, 2013, and at the conclusion of the plea colloquy, the sentencing judge orally imposed the sentence on the record. The sentencing judge specifically questioned the defendant to ensure that he understood the terms of his sentence because the sentence exceeded the term that his counsel requested. The sentencing judge noted that due to the severity of the crimes for which the defendant pleaded guilty, he was imposing an eighteen-month sentence, “so that there's something hanging over [the probationer's] head so that if he violates his probation he has a swift and sure consequence.” The first probation revocation judge found that the defendant was on notice of the durational terms of his probation and that the defendant's probation was to end on December 8, 2014, and, as such, he had adequate notice that he was still on probation when he committed the subsequent shoplifting offense in July, 2014. See Ruiz, supra at 479–480.
On the probation order the sentencing judge erroneously listed the date of the plea as the date that probation was to begin, but he did not take the unusual step of imposing probation during incarceration. See id. at 480. See also Commonwealth v. Juzba, supra at 459–460. Moreover, we note that the written order containing the inconsistency on which the defendant's argument relies specifically, clearly, and unambiguously advised the defendant that the end date of his probation was December 8, 2014. We discern no error or abuse of discretion.
2. Evidentiary hearing. The defendant argues that he was denied his constitutional right to an evidentiary hearing during his probation revocation proceedings. We disagree. The defendant, in fact, had the opportunity to assert his notice argument fully during his first probation revocation hearing on October 16, 2014, before the first hearing judge. See Commonwealth v. Purling, 407 Mass. 108, 113 (1990). During that hearing, the judge found that the defendant had adequate notice of the terms of his probation and continued the hearing until December 16, 2014, to allow the defendant to determine whether he wanted to plead guilty to the shoplifting offense that occurred in July, 2014.
During the December, 2014, hearing before the second hearing judge, the defendant pleaded guilty to the July, 2014, shoplifting offense, which obviated the Commonwealth's need to prove his violation by a preponderance of the evidence. See Commonwealth v. Hill, 52 Mass.App.Ct. 147, 154 (2001). Additionally, the second hearing judge took judicial notice of the prior proceedings. More is not required. The defendant's disagreement with the first hearing judge's finding that he had adequate notice of the terms of his probation during the October, 2014, hearing did not entitle him to yet another evidentiary hearing during the December, 2014, proceedings. We discern no error.
Order revoking probation and imposing sentence affirmed.