Opinion
No. 15–P–430.
08-04-2016
COMMONWEALTH v. Nicholas MAHONEY.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from an order finding that he violated his probation and revoking his probation. Based on the underlying convictions, he was ordered to serve a two-year sentence (that had been suspended) on and after an eighteen-month committed sentence that he was then serving. The defendant's primary argument is that the evidence was insufficient to demonstrate that the probation fees that he did not pay were due on or before the date of the notice of violation.
The notice of probation violation, the defendant's fourth with respect to the underlying convictions, alleged five different violations: that the defendant failed to complete the “Reflections” substance abuse program (Reflections program); that he failed to attend a batterer's program; that he failed to pay probation fees, having paid only $600 of an assessed $1,560; that his whereabouts were unknown for almost one month; and that he had failed to be available for drug testing during that same period of time.
At the hearing, the judge's determination regarding the defendant's failure to complete the Reflections program stalled when defense counsel made a hearsay objection to the introduction of a letter from the Reflections program. The judge said he would take the hearsay question under advisement, but the docket does not reflect it ever having been resolved. The judge found that the defendant had, regardless of the failure to complete the Reflections program, violated his probation by failing to pay probation fees. Although the Commonwealth argues that the judge found that the defendant failed to complete the Reflections program, the probation violation finding and disposition form is ambiguous. Specifically, the preprinted form has a series of boxes by which a revocation judge may check off what violation or violations he or she has found. Several of them contain blank lines where information may be written. In this case, several of these lines are, indeed, filled in with information. Nonetheless, there is a check next to only a single box—that indicating a violation of probation by failure to make payment. We think this can be read only to mean that the judge found that one violation.
While nothing in our decision turns on this point, the writing on those lines appears not to be in the judge's hand.
In order to prevent confusion in the future, if a judge intends some other meaning to be conveyed by a form filled out in this way, he or she should check all the relevant boxes so there will be no ambiguity.
The defendant argues that the evidence was insufficient to show that any monies he failed to pay toward the assessed probation fees were due on or before the notice of violation. “[T]he burden of proof in a revocation of probation proceeding ... is proof by a preponderance of the evidence.” Commonwealth v. Holmgren, 421 Mass. 224, 226 (1995). We review the decision below to determine “whether the record discloses sufficient reliable evidence to warrant the findings by the judge.” Commonwealth v. Morse, 50 Mass.App.Ct. 582, 594 (2000).
At the time the defendant was sentenced on April 13, 2010, he was ordered to pay, among other things, a probation fee and surcharge of $1,560 at a rate of sixty-five dollars per month. That is, he was required to make twenty-four monthly installment payments of sixty-five dollars each.
His second probation violation notice asserted that he failed to pay any of that $1,560. The defendant was found in violation of probation on that second notice (although apparently only on a different ground). A new conditions of probation order issued dated March 27, 2012. The March 27, 2012, order included a probation fee and surcharge of $1,560 at sixty-five dollars per month.
Under the March 27, 2012, order, payment in full had to be completed twenty-four months later. By the date of the notice of probation violation at issue here, i.e., October 10, 2013, eighteen payments would already have been due for a total of $1,170. The March 27, 2012, order thus put the defendant on notice that he was required to pay more than the $600 he had paid by the date of the fourth notice of violation (the notice at issue here). The previous orders, of which the judge was entitled to take judicial notice even if they were not in evidence, and on which the judge was entitled to rely, combined with the testimony of the probation officer that $960 remained due of the $1,560 assessed, also was sufficient evidence to support the finding by a preponderance of the evidence of a violation.
The defendant argues that a further document, a “suspended payment order and agreement,” also dated March 27, 2012, the same date as the new conditions of probation, undermines that conclusion. Although there is a line at the bottom of the document for the signature of an assigned probation officer, the suspended payment order and agreement is unsigned by either a probation officer, a judicial official, or the defendant. It is not reflected on the docket, which contains only the notation “$65/mo POF for extension (2 yr),” which appears to reflect the order requiring a sixty-five-dollar-per-month payment. Nonetheless, for the purpose of our decision, we will assume the suspended payment order and agreement was valid and applicable.
The amounts on the suspended payment order and agreement match those on the order of probation conditions almost exactly. The former document states, “You have been ORDERED and have agreed to pay monies imposed by the court as follows.” It lists several fees including $1,440 described as “Probation Supervision Fees” and $120 described as a “Victims Service Surcharge.” The form states that the due date is March 26, 2014, which we take to mean twenty-four months after the date of the document. The $1,440 probation supervision fee and the $120 victims service surcharge on the suspended payment order and agreement add up exactly to the amount of the $1,560 “Probation Fee & Surcharge” on the order of probation conditions. The $1,560 total payment divided by the sixty-five-dollar monthly payment on the order of probation conditions matches the due date on the suspended payment order and agreement. The $350 “Batterers Fee” on the suspended payment order and agreement matches the $350 for a “Batterer's Program Assessment” on the order of probation conditions. Nothing about the suspended payment order and agreement indicates that it was intended to modify or to override the monthly payment schedule for the probation fees and surcharge stated explicitly on the order of probation conditions and recorded on the docket.
Given the specific term of the new conditions of probation signed the same day that payment was to be made in sixty-five-dollar increments, with the final payment due twenty-four months later, we think the evidence was sufficient to find by a preponderance of the evidence that the defendant's payment of the $1,560 was due in monthly increments of sixty-five dollars, with final payment due twenty-four months after the date of the order, and that the defendant had adequate notice of this probation condition. This conclusion is reinforced by the fact that prior to his third notice of probation violation, which issued on July 26, 2013, the defendant had paid $600 toward the $1,560 probation supervision fee detailed in the new conditions of probation that issued following the second finding of a probation violation. Although this is not a multiple of sixty-five dollars, we think the judge could properly have concluded that this payment implies that the due date of the entire $1,560 was not postponed until March, 2014.
At the revocation hearing defense counsel asserted that as a condition of allowing the defendant to travel to Florida at some point during his probationary term, a judge ordered that he pay $600 toward the $1,560 fee. Counsel's suggestion was that this might explain the $600 payment toward the $1,560, which would not be inconsistent with the rest of the money being due in 2014. There was no testimony about this, however, and there is no evidence on the docket sheet or in the record of any such order.
The defendant also alleges that defense counsel provided ineffective assistance at the hearing. See Commonwealth v. Patton, 458 Mass. 119, 128–129 (2010) (recognizing that defendants have right to effective assistance of counsel at probation violation proceedings and applying standard in Commonwealth v. Saferian, 366 Mass. 89, 96 [1974], to ineffective assistance claims). As the defendant recognizes, it is preferred that claims of ineffective assistance of counsel be presented by a motion for a new trial. See Commonwealth v. Zinser, 446 Mass. 807, 810–811 (2006). Without creating a record with which a reviewing court can measure defense counsel's performance, a claim of ineffective assistance brought in the first instance on direct appeal can succeed only “when the factual basis of the claim appears indisputably on the trial record.” Commonwealth v. Adamides, 37 Mass.App.Ct. 339, 344 (1994).
In large measure, the defendant's argument is that counsel failed to apprise the judge that the unpaid $960 was not due until March, 2014, and that the defendant did not have adequate notice of when it was due. As the various orders make clear, even if our reading is incorrect, it does not appear indisputably on this record that there was a winning argument on this ground for defense counsel to make.
The defendant's other arguments that he received ineffective assistance do not appear indisputably on the trial record either. He argues that his attorney did not object to the probation officer's hearsay testimony. However, as discussed supra, the hearsay about the Reflections program was not a necessary basis for the judge's decision. The defendant also argues that his attorney did not ask the judge to consider a waiver of fees under G.L.c. 276, § 87A, or ask for a sentencing hearing so that the defendant's wife could testify about the hardship of a committed sentence and so that the defendant could seek mitigation of punishment. On this record, which contains little indication of what arguments the defendant would have made for the waiver of fees or how his wife would have testified, we cannot conclude that these arguments constituted “otherwise available, substantial ground[s] of defence.” Commonwealth v. Saferian, supra.
The defendant also points out that the finding and disposition form for his third probation violation contains the following handwritten note: “Prob. indicates [the defendant] was getting back on track.” He argues that this notation also could have convinced the judge to mitigate his sentence. Given that the same form also contains a large, double underlined notation stating, “Should be last chance,” we do not think it is indisputable that pointing out this notation would have led to mitigation of the defendant's sentence.
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Finally, we note that the finding and disposition also states on one of the blank lines that was filled in, that the defendant not only failed to pay all but $600 of the $1,560 probation fees as alleged in the violation notice, but also that he failed to pay two other fees. Because the failure to pay those fees was not alleged in the notice of violation, those two findings cannot support the finding of a violation of probation or its revocation. Nonetheless, because we conclude that the evidence is sufficient with respect to the charged failure to pay, and because we conclude that the findings, if the judge in fact made them, with respect to the other two amounts were immaterial to the judge's decision to revoke the defendant's probation when he was, for the fourth time, found to have violated that probation, we conclude that any error was harmless. See Commonwealth v. Al Saud, 459 Mass. 221, 230 n. 19 (2011), quoting from Fay v. Commonwealth, 379 Mass. 498, 503 (1980) (“As noted above, ... the motion judge's memorandum referred to unspecified ‘other violations.’ Probationers are entitled to clear notice of alleged violations, and these vague claims could not justify revocation of the defendant's probation. However, because the other three specific violations ... gave the motion judge ample grounds for her order, we consider the unspecified violations to be ‘immaterial surplusage’ “ [citations omitted] ).
Order revoking probation affirmed.