Opinion
No. 11–P–1956.
2012-06-12
COMMONWEALTH v. Cheryl MUNROE.
By the Court (COHEN, MILLS & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Cheryl Munroe, was placed on probation in April of 1998 after she pleaded guilty to two counts of larceny of property exceeding $250 in value. The defendant received a sentence of one year in a house of correction on each count, to be served concurrently, suspended for four years. One of the conditions of her probation was that she pay restitution totaling $49,439.52. In October of 1998, she stipulated to being in violation of her probation, but was allowed to remain on probation and was ordered to pay the amount of restitution on a schedule of $40 per month. Over the course of the next decade, the defendant's probation was extended a number of times with her consent. As of the final extension, the defendant was still on a $40 per month repayment schedule and her probation end date was November 29, 2012.
On March 21, 2011, a “Notice of Probation Violation and Hearing” was issued to the defendant, solely on the basis of the following alleged new offenses: operating a motor vehicle with a suspended license, unregistered and uninsured motor vehicle violations, number plate violations, and receipt of stolen property. On May 17, 2011, the defendant was found in violation of the terms of her probation, her probation was revoked, and her one-year sentence was imposed. However, execution of the sentence was stayed pending a further hearing on August 4, 2011. On that date, the judge heard from the parties, vacated the stay, and the defendant began to serve the sentence she is presently serving. The judge's purported rationale for finding that the defendant had violated her probation is unsupported. Furthermore, a review of the record in its entirety, including transcripts of the hearings on May 17th and August 4th, reveals that the judge revoked the defendant's probation and imposed the sentence because she had yet to make full restitution. “As a matter of due process,” a defendant who is allegedly in violation of probation is entitled to “written notice of the claimed violations of probation.” Commonwealth v. Faulkner, 418 Mass. 352, 360 (1994), citing Commonwealth v. Durling, 407 Mass. 108, 113 (1990). The defendant in this case was not given written notice of any violation pertaining to her restitution. Accordingly, the order revoking the defendant's probation is vacated. Any further proceedings in this matter shall be heard before a different judge.
The allegedly stolen property was the license plate on the vehicle.
The Finding & Disposition sheet lacks a check mark as to the “VIOLATION OF PROBATION FOUND.” However, the following notation was made next to the heading “Violated CRIMINAL LAW(s), namely:” “1152 CR 610, lic. susp., oper. mo., unreg. mr; number plate viol.” Later on the form a box is checked that “This finding is based on probationer's admission.” However, the defendant did not testify, and, neither individually nor through counsel, did she admit to any violation. The only evidence introduced at the probation revocation hearing was hearsay in the form of a police report that included information from sources other than the police officer, himself, and did not address all elements of the alleged violations of law. The judge did not complete the portion of the form pertaining to findings based solely upon hearsay, nor did he state on the record that he found the hearsay evidence to be trustworthy and reliable. See rule 6 of the District Court Rules for Probation Violation Proceedings. See also Commonwealth v. Patton, 458 Mass. 119, 136 (2010).
The record lacks any evidence that the defendant was not in compliance with the restitution payment plan.
So ordered.