Opinion
13-P-1403
02-13-2015
COMMONWEALTH v. LUIS ORTIZ.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
On June 12, 2012, the defendant entered guilty pleas to seven counts of various crimes stemming from a violent and prolonged domestic dispute with his girlfriend and mother of his children. The plea judge sentenced the defendant to a term of incarceration of six years to six years and one day in State prison and to sixteen years of probation to be served concurrently with the term of incarceration and for ten years after his release. As one condition of his probation he was to have no contact with the victim or her children. At some point during his incarceration, the defendant wrote at least one letter to the victim, violating the no-contact term of his probation. After a hearing, his probation was revoked and the judge imposed a sentence of seven to ten years in State prison to commence from and after the six-year sentence he was already serving. The defendant now appeals his probation revocation and resulting sentence. We affirm.
The defendant was indicted on one count of kidnapping, in violation of G. L. c. 265, § 26; one count of assault and battery, in violation of G. L. c. 265, § 13A; four counts of assault and battery by means of a dangerous weapon, in violation of G. L. c. 265, § 15A(b); and one count of threatening to commit a crime, in violation of G. L. c. 275, § 2.
The defendant was also sentenced to six months in a house of correction for the charge of threatening to commit a crime, to run concurrently with his State prison term.
Probation revocation. We review a judge's decision to revoke probation for an abuse of discretion. Commonwealth v. Malick, 86 Mass. App. Ct. 174, 178 (2014). Before a defendant's probation can be revoked based on a violation of the terms of his probation, a defendant must be on notice of the type of conduct prohibited and when the conditions will apply. Commonwealth v. Al Saud, 459 Mass. 221, 232 (2011). See Commonwealth v. Lally, 55 Mass. App. Ct. 601, 603 (2002). The defendant contends that he did not have adequate notice that the term of his probation prohibiting contact with the victim began immediately upon his incarceration.
During the defendant's sentencing hearing he was informed on three separate occasions that the no-contact order was a condition of his probation while incarcerated. Further, as the sentencing judge noted, the defendant admitted in his letter to the victim that he was forbidden to contact her. The defendant also admitted in court at the sentencing portion of the surrender hearing that he should be found in violation of his probation. Contrast Commonwealth v. Ruiz, 453 Mass. 474, 480 (2009) (record "devoid of any evidence" that any conditions of probation were in effect during incarceration). There was no error.
Even if we accept the defendant's argument that the docket sheet is ambiguous in the relevant respect, which we do not, any such ambiguity is eliminated by reference to the disposition sheet and especially the transcript of the probation surrender hearing. The defendant was warned of the conditions of his probation multiple times. Indeed, the final colloquy between the judge and the defendant proceeded as follows:
Judge: "[Y]ou need to understand that when you're incarcerated, those conditions of probation apply. Don't contact [the victim] or the children."
Defendant: "That's fine."
Sentencing. The defendant contends that the sentence imposed after his probation violation hearing amounts to cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution and art. 26 of the Massachusetts Declaration of Rights. We review a claim of improper sentencing to determine whether it is so disproportionate to the crime that it "shocks the conscience." Commonwealth v. Jackson, 369 Mass. 904, 910 (1976) (citation omitted). The defendant does not challenge the length of his sentence, just the fact that it is to be served consecutive to, rather than concurrent with, the prison term he was already serving. This argument lacks merit. The judge's opinion evidences a careful consideration of the factors in this case, including the brutality of the crime, the threatening nature of the letter sent to the victim and the flagrant disregard of the conditions of his probation. For those reasons and those outlined in the Commonwealth's brief at pages 12-13, there was no error.
Order revoking probation and imposing sentence affirmed.
By the Court (Grainger, Milkey & Agnes, JJ.),
The panelists are listed in order of seniority.
--------
Clerk Entered: February 13, 2015.