Opinion
13-P-307
04-01-2014
COMMONWEALTH v. KERRY OGARRO.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from a sentencing order issued from the Superior Court after being found in violation of probation. He complains that the indirect portion of the split sentence he received -- namely, a period of probation until December 31, 2024, from and after the two terms of incarceration that he must first serve -- was unlawfully imposed. The defendant first contends that it constitutes an illegal sentence since the period of probation exceeds the maximum sentence allowed for the offense of assault and battery. He further argues that the probationary term was improper since the judge failed to provide him with an opportunity to reject the imposition of probation, either in open court or by refusing to sign the terms and conditions of probation in writing. We affirm. On a procedural basis, we first observe that the defendant does not challenge the judge's finding that he violated the terms and conditions of probation, but appeals only from the sentence. As several recent cases have suggested, the preferred manner to challenge a sentence imposed upon a revocation of probation is to bring it to the attention of the trial judge in the form of a motion under the provisions of Mass.R.Crim.P. 30(a), as appearing in 435 Mass. 1501 (2001). See Commonwealth v. Christian, 429 Mass. 1022, 1023 (1999) ('Rule 30[a] is the appropriate avenue for relief only where the defendant is not challenging the probation revocation order itself, but rather the sentence imposed in consequence of the order'); Commonwealth v. Azar, 444 Mass. 72, 76-77 (2005). As observed by Justice Kass, such a course has the advantage of 'potentially more swift relief from the trial judge who imposed sentence. The trial judge, by reason of familiarity with the case, is likely to be able to deal with it more understandingly and certainly more expeditiously.' Commonwealth v. Christian, 46 Mass. App. Ct. 477, 480 (1999), S.C., 429 Mass. 1022 (1999) (affirming on other grounds). Although the defendant's appeal could founder for this reason, we consider the merits, nonetheless.
On December 13, 2011, the defendant was convicted of assault and battery by means of a dangerous weapon and was sentenced to a term of five to seven years in State prison. For the additional charge of assault and battery, which carries a maximum sentence of incarceration of two and one-half years in a house of correction, he was ordered to serve a period of three years of straight probation with terms and conditions. One condition was that he have no contact with the victim, a condition that commenced immediately upon sentencing. He was found in violation of that condition and, on June 12, 2012, he was sentenced to two and one-half years in a house of correction, with one year to serve with the balance suspended until December 31, 2024.
The condition he violated was a 'no-contact' order that was imposed and expressly made effective immediately, notwithstanding his incarceration. Compare Commonwealth v. Ruiz, 453 Mass. 474, 479-480 (2009).
See Mass.R.Crim.P. 29, 378 Mass. 899 (1979).
Neither party has raised this issue but both fully briefed the merits.
We need not dwell on the defendant's first contention that a term of probation that exceeds the maximum length of time that a defendant may be incarcerated for a particular offense is illegal. General Laws c. 276, § 87, as amended through St. 1974, c. 614, provides in pertinent part:
'The superior court . . . may 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, with the defendant's consent, before trial and before a plea of guilty, or in any case after a finding or verdict of guilty.'Thus, the judge has discretion to impose a probationary term for such length as she deems necessary. There is no indication that the Legislature intended that terms of probation be limited in the manner the defendant contends. See Commonwealth v. Azar, supra at 78-79 (split sentence of nineteen and one-half to twenty years, with 4,570 days to serve and the balance suspended for ten years 'did not exceed the maximum term for manslaughter'); Commonwealth v. Powers, 73 Mass. App. Ct. 186, 188-189 (2008) (five-year probation term did not exceed lawful sentence for threatening to commit a crime as it was neither incarceration nor imposition of a peace bond, for which G. L. c. 275, § 4, mandates no more than a six-month maximum term).
We need not address the Commonwealth's argument that the probation statute only requires the defendant's consent in cases of pretrial probation. We note, however, the presence of a comma following the consent phrase suggests an intent that this phrase modify both phrases that follow the comma. See Commonwealth v. Sebastian S., 444 Mass. 306, 310 (2005). ('General Laws c. 276, § 87 [probation statute], does not use the words 'pretrial probation,' but permits trial judges to place on probation any person charged with an offense, 'with the defendant's consent, before trial and before a plea of guilty' [commonly referred to as 'pretrial probation'], 'or in any case after a finding or verdict of guilty'').
This split sentence to State prison was imposed prior to 'truth in sentencing' legislation and was thus lawful. See St. 1993, § 11, amending G. L. c. 127, § 33.
For his contention that a defendant has a right to consent to or reject the terms and conditions of probation, the defendant chiefly relies upon Commonwealth v. Cotter, 415 Mass. 183, 188 (1993). In that case, the Supreme Judicial Court stated as follows:
'[T]he judge in effect offered the defendant a contract that provided for less time to be served in the house of correction in exchange for the defendant's promise not to violate the law during the three years of probation. . . . The defendant, however, declined to enter into the agreement, as was his right. The offer was not accepted, and the judge was free to impose a different sentence which he did.'In our view, however, the defendant consented implicitly to the term of probation.
For his contention that a defendant has a right to consent to or reject the terms and conditions of probation, the defendant chiefly relies upon Commonwealth v. Cotter, 415 Mass. 183, 188 (1993). In that case, the Supreme Judicial Court stated as follows:
'[T]he judge in effect offered the defendant a contract that provided for less time to be served in the house of correction in exchange for the defendant's promise not to violate the law during the three years of probation. . . . The defendant, however, declined to enter into the agreement, as was his right. The offer was not accepted, and the judge was free to impose a different sentence which he did.'In our view, however, the defendant consented implicitly to the term of probation.
This revocation proceeding occurred over the course of two nonconsecutive hearing days. At the first hearing, both the prosecutor and the probation officer gave sentencing recommendations that the probation portion of the split sentence last until December 31, 2024. The defendant's only objection was to a condition of house arrest for the first year of probation and GPS monitoring; he made no objection to the length of time being proposed on the first day, nor made it when it was imposed on the second day. Moreover, the record shows no pleading or other attempt to bring his objection to the attention of the trial judge following its imposition. See Commonwealth v. Christian, 46 Mass. App. Ct. at 482; Commonwealth v. Jackson, 80 Mass. App. Ct. 528, 536 (2011). Consequently, we consider the defendant to have consented to the length of probation that the judge imposed for violating the no-contact condition.
The sentencing clearly shows that the judge considered this condition to be an important protection to the public and to the victim in particular. 'The primary goals of a probationary sentence are rehabilitation of the probationer and protection of the public. . . . Other recognized goals of probation include punishment, deterrence, and retribution.'Commonwealth v. Power, 420 Mass. 410, 414-415 (1995), cert. denied, 516 U.S. 1042 (1996).
Order revoking probation and imposing sentence affirmed.
By the Court (Kantrowitz, Berry & Fecteau, JJ.),