Opinion
11-P-315
12-20-2011
COMMONWEALTH v. CLEMENTE C. OJEDA.
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, Clemente C. Ojeda, appeals from an order revoking his probation, claiming that the revocation hearing lacked minimum due process. The defendant also asserts that he should receive credit for time served because he was denied the opportunity at the revocation hearing to be heard on that issue.
On April 21, 1989, the defendant was found guilty in the Framingham division of the District Court department on a complaint charging him with the operation of a motor vehicle while under the influence of alcohol (OUI), third offense. He was sentenced to one year in a house of correction, ninety days to serve, and the balance suspended until April 22, 1991.
The defendant was also found guilty of a separate charge of operating a motor vehicle after having his license suspended for OUI. He received a sentence concurrent with the sentence for OUI.
On May 11, 1990, a notice of surrender was mailed to the defendant, ordering him to appear for a hearing to answer a charge that he was in violation of his probation as a result of new convictions in the Worcester division of the District Court department. The defendant failed to appear for the probation revocation hearing and a warrant for his arrest issued.
On September 7, 2010, the defendant was brought into District Court in Framingham. The defendant filed a motion claiming that the underlying sentence was illegal. On October 8, 2010, a hearing was held on the defendant's motion. After hearing arguments of counsel, a judge found the defendant in violation of his probation and ordered that he serve the balance of his sentence imposed in 1989.
On appeal, the defendant claims that the revocation hearing lacked due process because no evidence was introduced and the judge did not make any written or oral findings. We reject the defendant's claim.
It is undisputed that the defendant had been convicted on May 8, 1990, in Worcester of operation of a motor vehicle after his license to operate had been suspended. At oral argument, before this panel, defense counsel conceded that the defendant had indeed violated probation. In these circumstances, the defendant cannot argue that his revocation hearing lacked minimum due process or that the Commonwealth failed to meet its burden. See Commonwealth v. Hardiman, 57 Mass. App. Ct. 928, 928 (2003).
The defendant further argues that he was denied an opportunity to be heard at the revocation hearing on his request to receive credit for time served in Worcester from April to September, 2010, while awaiting the revocation hearing.
At oral argument, defense counsel agreed that the judge did listen to the defendant's request for time served and rejected it. There was no error. We also note that the defendant was released from jail on April 1, 2011; thus, this issue is now moot.
Order revoking probation affirmed.
By the Court (Grasso, Smith & Meade, JJ.),