Opinion
23-P-280
07-19-2024
COMMONWEALTH v. JERRY LEIVA.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
In this consolidated appeal, we are asked to determine when the defendant's probationary term began and whether the judge abused his discretion by determining that there was sufficient evidence to conclude that the defendant violated the conditions of that probation. On December 6, 2016, pursuant to a plea agreement, the defendant pleaded guilty to eleven counts of a fourteen count indictment. The judge adopted the parties' joint recommendation and sentenced the defendant to concurrent terms of incarceration from two years to two years and a day on eight of the charges, to be followed by eighteen months of probation on two remaining charges. As his case was unfolding in the Superior Court, the defendant was arraigned in the United States District Court on unrelated charges. He was granted a continuance in his Federal case until he was released from State custody and was released directly to Federal custody following his State prison term of confinement.
The charges to which the defendant pleaded guilty included one count of assault and battery, two counts of assault and battery on a family or household member, one count of assault and battery on a police officer, one count of assault with a dangerous weapon, four counts of witness intimidation, one count of resisting arrest, and one count of using a motor vehicle without authority. The court dismissed two counts of assault and battery on a pregnant person and one count of assault and battery on a police officer as part of the plea agreement.
The defendant was also sentenced to a concurrent term of thirty days committed to the house of correction on the charge of use of a motor vehicle without authority.
The defendant's Federal charges included conspiracy to conduct enterprise affairs through a pattern of racketeering activity and aiding and abetting in the business of dealing in firearms without a license. He pleaded guilty to these charges on January 28, 2019. He was sentenced to thirty-three months of incarceration followed by three years of supervised release and was released from Federal custody on September 22, 2020.
Following the defendant's release from Federal custody, an arrest warrant issued out of the Chelsea District Court on February 3, 2021, for the defendant's suspected involvement in a home invasion that occurred on January 13, 2021. As a result, also on February 3, 2021, the Probation Department filed a notice of probation surrender for the defendant's alleged violation of the terms of his probation. After an evidentiary hearing, a different judge (probation judge) found that the Commonwealth had proven the alleged probation violations by a preponderance of the evidence and revoked the defendant's probation. The defendant was sentenced to concurrent terms of four years to four years and a day in state prison. He appealed that decision and, while his appeal in that matter was pending, filed a motion for release from unlawful restraint. The same judge denied the motion, and the defendant appealed. As indicated supra, the appeals were consolidated. On appeal, the defendant argues that (1) there was insufficient evidence of the alleged probation violations and (2) his probationary period had expired prior to the alleged violations. We affirm and address each argument in turn.
The notice also included a Newton District Court charge of operating a motor vehicle with a suspended license, which was alleged to have occurred on November 13, 2020.
Discussion.
1. Sufficiency of the evidence.
The defendant first argues that the evidence was not sufficient to prove that he violated the terms of his probation by committing the new offenses, and that the probation judge erred in relying on unreliable hearsay in concluding that he did. We are unpersuaded.
"A determination whether a violation of probation has occurred lies within the discretion of the hearing judge." Commonwealth v. Bukin, 467 Mass. 516, 519-520 (2014). The Commonwealth must prove a violation of probation by a preponderance of the evidence. Commonwealth v. Nunez, 446 Mass. 54, 59 (2006). "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" (quotation omitted). Commonwealth v. Hill, 52 Mass.App.Ct. 147, 154 (2001). We review an order revoking probation to determine "whether the record discloses sufficient reliable evidence to warrant the findings by the judge that [the defendant] had violated the specified conditions of his probation." Commonwealth v. Morse, 50 Mass.App.Ct. 582, 594 (2000).
With respect to the unreliable hearsay claim, although "standard evidentiary rules do not apply to probation revocation hearings," a finding of a probation violation must be based on reliable evidence. Commonwealth v. Durling, 407 Mass. 108, 117 (1990). "A judge may rely on hearsay evidence at a probation violation hearing where the evidence has substantial indicia of reliability." Commonwealth v. Ogarro, 95 Mass.App.Ct. 662, 668 (2019).
"In assessing whether the hearsay evidence is reliable, a hearing judge may consider (1) whether the evidence is based on personal knowledge or direct observation;
(2) whether the evidence, if based on direct observation, was recorded close in time to the events in question;
(3) the level of factual detail; (4) whether the statements are internally consistent; (5) whether the evidence is corroborated by information from other sources; (6) whether the declarant was disinterested when the statements were made; and (7) whether the statements were made under circumstances that support their veracity."Commonwealth v. Hartfield, 474 Mass. 474, 484 (2016).
Because the defendant seemingly does not challenge his violation as to the motor vehicle offense, we focus our attention on the alleged home invasion. In doing so, we first consider the defendant's argument that the probation judge erred by relying on unreliable hearsay in concluding that the Commonwealth met its burden. The defendant's argument relies chiefly on the claim that the declarants -- two other alleged participants in the home invasion -- were not disinterested witnesses. He further contends that the testimony was unreliable as it was not corroborated by other evidence. Accordingly, he asserts, the probation judge should have concluded that their testimony was unreliable and thus inadmissible.
During the probation surrender hearing, the judge stated that "[the motor vehicle offense] is admitted by the defendant." No such admission appears in the record before us. However, the defendant did not challenge the judge's statement at the time and does not raise the issue on appeal. A state police report detailing the incident was admitted in evidence, and we accordingly discern no error in the judge's finding that the defendant committed this offense. See Nunez, 446 Mass. at 59. Such an offense, on its own, was enough to support a finding that the defendant violated the terms of his probation. See G. L. c. 90, § 23. See also Commonwealth v. Joyner, 467 Mass. 176, 190 (2014) (preponderance of evidence that defendant committed new crime enough to support finding of probation violation).
We are unconvinced. The probation judge reviewed the Hartfield factors to assess the reliability of hearsay evidence, see 474 Mass. at 484, in the course of ruling on the defendant's objection to the admission of the testimony. He acknowledged that some of the factors favored excluding the hearsay, including that the statements were inconsistent with each other and that the declarants, as suspects in the same home invasion, were not disinterested parties. However, he also cited several factors that supported the testimony's reliability and admission, including that the testimony was based on the personal knowledge of the declarants, that it was recorded close in time to the events in question, and that it was, in fact, corroborated by other sources, including police investigative work pertaining to cell phone communications between the alleged codefendants from the evening in question. Noting that, "[i]t is the exclusive province of the hearing judge to assess the weight of the evidence," Bukin, 467 Mass. at 521, we discern no abuse of discretion in the judge's assessment and ultimate conclusion here. See Nunez, 446 Mass. at 58-59 (hearsay reliable where declarant made corroborated statements based on personal knowledge and direct observation).
Specifically, the judge stated that "[t]he [hearsay testimony] was corroborated by other sources, primarily the telephone analysis done by the police officers, the surveillance films captured by the police officers, the analysis done by the police officers of GPS data." The judge also referenced a search warrant affidavit that described, in considerable detail, the aforementioned telephone analysis and video surveillance, and stated that this affidavit further corroborated the hearsay testimony.
We turn next to consider whether the Commonwealth provided sufficient evidence to support the probation judge's finding, by a preponderance of the evidence, that the defendant violated the conditions of his probation by committing the new offenses and conclude that it did. The defendant's probation included a requirement that he not commit any new offenses. As part of its obligation to support the violation, the Commonwealth elicited testimony from a detective describing the broader investigation into the home invasion. In particular, the detective testified that police identified cell phones belonging to the suspects in the invasion, and that those phones communicated with cell phones belonging to the defendant's girlfriend and grandmother around the time of the home invasion. The judge found that "the nesting of these various telephones is compelling evidence."Moreover, while not relying on it exclusively, the judge found that the hearsay testimony described supra, which included one of the other suspects implicating the defendant as a participant in the invasion, further supported his conclusion that the defendant violated the terms of his probation. We see no abuse of discretion in his assessment of the weight of the evidence. See Bukin, 467 Mass. at 521. Together, this evidence was sufficient to support, by a preponderance of the evidence, the probation judge's conclusion that the defendant violated the terms of his probation. See Nunez, 446 Mass. at 59. There was no error. See Morse, 50 Mass.App.Ct. at 594.
The detective testified that the defendant's grandmother did not speak English, and that she stated English-language text messages on her cell phone must have been written by the defendant.
As the judge explained,
"looking at the overlapping evidence that's corroborated with phone records and GPS records, as well as by the grandmother's [statements] and the police review of the grandmother's phone that shows that [the defendant] was using one of the phones that was in contact with the codefendants at the time of the attack, as well as his girlfriend's phone, which was in contact with some of the codefendants at the time of the attack . . . the reality is that there are contacts right at the time of the attack. The contacts from [a codefendant's] phone are . . . very close to the location of the home invasion."
One of the suspects told a detective that someone named "Fetti" had participated in the home invasion. When that detective researched the defendant's record in a law enforcement database, he learned that the defendant had the word "Fetti" tattooed on his hand.
We are unpersuaded by the defendant's argument that the detective's testimony regarding the investigation into the defendant's use of his girlfriend's and grandmother's cell phones to communicate with other suspects was of insufficient weight to support the judge's findings. See Bukin, 467 Mass. at 521. The judge, in his role as the fact finder, is the sole assessor of the weight of the evidence. Id.
2. Commencement of the probation term.
The defendant further argues that his term of probation commenced at the time he completed his committed term of State prison incarceration and was released into Federal custody. Accordingly, he claims, his probation had lapsed by the time of the alleged home invasion, and that a crime committed after that expiration could not, as a matter of law, support a finding that he violated the conditions of his probation. We are unconvinced.
Specifically, the defendant claims that his probation began on December 17, 2017, and ended on June 17, 2019, prior to the home invasion in January 2021. We note, however, that he does not support this claim with a record citation to show when he was released from State custody. See Mass. R. A. P. 16 (e), as appearing in 481 Mass. 1628 (2019). Regardless, as we discuss infra, the date on which the defendant was transferred from State to Federal custody is immaterial, as we conclude his probation commenced when he was released from Federal custody into the community.
"When construing a sentencing order we look to the intent of the judge." Commonwealth v. Medina, 487 Mass. 616, 618 (2021), quoting Commonwealth v. Bruzzese, 437 Mass. 606, 615 (2002). "By its nature, probation is meant to be served while a probationer is living in the community." Medina, supra at 619. "[A]bsent a clear indication to the contrary, we assume that when a judge sentences a defendant to probation following . . . a term of incarceration, he or she intends that the probationary term be served upon the defendant's release into the community." Id. at 619-620.
Here, the trial judge's intent for the defendant's probation to begin upon his release from custody is clear from his discussion of its terms with the defendant during his plea colloquy. See Bruzzese, 437 Mass. at 618. The trial judge told the defendant, "I'd impose a term of [eighteen] months of probation that would start once you got out of prison." The trial judge further imposed a condition that the defendant "stay away [from] and have no contact" with one of his victims. As the condition that the defendant stay away from the victim could only be relevant once he was released from incarceration, it further supports the conclusion that the trial judge intended this period of probation to run following the defendant's release from custody. See id. Moreover, the trial judge ordered that "[the probation] fees may all be paid during the probationary period, so they don't need to be paid while [the defendant] is incarcerated." Accordingly, we conclude that the trial judge intended that the defendant's term of probation begin upon his release into the community on September 22, 2020, and that it was in effect at the time of the alleged home invasion on January 13, 2021. See id. at 619-620.
We are unconvinced by the defendant's effort to distinguish Medina. He argues that in his case, unlike in Medina, he was conditionally incarcerated during the pendency of his Federal trial and could have been granted bail during that time. This argument, however, overlooks the core holding of Medina -- that probation is meant to be served after the defendant is released into the community. See 487 Mass. at 619-620. Although the outcome might have been different had the defendant been granted bail and released during his Federal trial, he was not, and, accordingly, the principles described in Medina apply here. See id., citing Commonwealth v. Sheridan, 51 Mass.App.Ct. 74, 75 (2001). See also Sheridan, supra at 76-77 (purposes of probation include rehabilitation of offender and protection of public).
We are not persuaded by the defendant's assertion that the trial judge was aware of his pending Federal charges and could have ordered that probation not commence until the conclusion of the Federal case. The defendant's State sentence was the product of a joint recommendation, and, had he wished for such an arrangement, he could have requested it. See Medina, 487 Mass. at 622 ("We also are mindful of the defendant's own acts and omissions, which are relevant given that his sentence was imposed pursuant to a joint recommendation").
The defendant further argues that interpreting Medina to apply to the outcome of an unrelated case being prosecuted by a separate sovereign entity unfairly creates a presumption of guilt in those proceedings. We disagree. Staying probation during the full term of the defendant's incarceration did not result in the defendant being treated differently on the basis of his Federal case; he was sentenced to serve eighteen months of probation following his release from incarceration and was not required to serve more. See Medina, 487 Mass. at 623-624 (concluding that delay in the start of probation does not amount to extension of original sentence).
The defendant's argument that his probation commenced at the end of his State sentence because the Probation Department exercised jurisdiction over him at that time is unavailing. The intent of the judge, not the Probation Department, is the dispositive factor in deciding at which point probation commences. See Medina, 487 Mass. at 618, quoting Bruzzese, 437 Mass. at 615.
Order revoking probation affirmed.
Order denying motion for relief from unlawful restraint affirmed.
The panelists are listed in order of seniority.