Opinion
No. 11–P–771.
2012-10-2
COMMONWEALTH v. Paul J. SHEEHAN.
By the Court (GREEN, FECTEAU & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from an order of a judge of the Superior Court who modified special conditions of probation.
In particular, the defendant, who had not been found in violation of probation, claims that three special conditions were improperly added to the terms of his probationary period, namely, that he: (1) have no unsupervised contact with boys under sixteen years of age, (2) stay one hundred yards away from “Water Wizz” specifically, and (3) stay one hundred yards away from any other location where children tend to congregate, including playgrounds, amusement parks, movie theaters during daytime hours, video arcades, and the like.
On January 5, 1999, the defendant pleaded guilty to eight indictments for sexual offenses occurring between January and June of 1997, which included three counts of rape of a child under the age of sixteen, G.L. c. 265, § 23; and five counts of indecent assault and battery of a child under the age of fourteen, G.L. c. 265, § 13B. He was sentenced to three concurrent terms of nine to thirteen years in State prison for his rape convictions, and five-year concurrent probationary terms for his indecent assault and battery convictions. The specific terms of his probation were that he attend sex offender counseling, pay a probation supervision fee, and have no contact with the victim or the victim's family.
Because the record lacks findings of fact critical to the resolution of the issues raised in this appeal, we must vacate the decision and remand for additional findings of fact and conclusions of law.
The judge declined to order a fourth condition requested by the probation officer, namely, the imposition of a global positioning system (GPS) monitoring device, as there was no authority for such an order, thereby implicitly recognizing that Commonwealth v. Goodwin, 458 Mass. 11, 12 (2010), specifically precluded the device's imposition (“a judge does not have the discretion to impose GPS monitoring as an additional condition of probation where there is no material change in the defendant's circumstances and where GPS monitoring, paired with geographic exclusions, is so punitive as to increase significantly the severity of the original probationary terms”).
The defendant was released from confinement just days before January 14, 2011; the probation department then issued a notice of surrender ordering the defendant to appear before the court on January 26, 2011, for hearing on the terms and conditions of his probation and, specifically, for judicial review of those conditions. After continuances, a hearing was held on February 9, at which the defendant was represented by counsel.
The order was not issued by the sentencing judge who, by the time of this hearing, had retired. See Commonwealth v. Goodwin, 458 Mass. 11, 18 n. 9 (2010) (“Where the probation department or the Commonwealth seeks to add or modify a defendant's conditions of probation without alleging a violation of a condition of probation, we expect that the motion will be heard by the sentencing judge, unless the judge is no longer sitting or is otherwise unavailable.... We conclude that the same standard applies regardless whether the motion is heard by a sentencing judge or another judge”).
While we do not endorse the absence of written notice to the defendant of the specific changes in conditions proposed or the grounds therefore, defense counsel had an opportunity prior to the hearing to meet with the defendant's probation officer and to learn of the specifics of her request. Defense counsel did not request any relief from the judge at the hearing for any lack of notice or time to prepare and appeared ready, with proposed exhibits, to argue against the modification.
At this hearing, the probation officer cited four reasons for her request for additional conditions, and related alleged changes in the defendant's circumstances since the imposition of the defendant's probation conditions: (1) he had been classified as a level three sex offender by the Sex Offender Registry Board (SORB);
(2) on January 6, 2011, the defendant had admitted to her that he currently was attracted to young males; (3) during his incarceration, the defendant received several so-called “D-reports” for fighting with other inmates, one for possession of a weapon, and numerous other reports for stealing, destruction of property, and possession of contraband; and (4) upon his release from prison, the defendant moved “relatively close [153 yards] to Water Wizz, which is primarily a children's water park.”
Although the probation officer stated that the Sex Offender Registration and Community Notification Act, G.L. c. 6, §§ 178C–178P (act), became effective some eight months after the defendant's conviction, a prior version of the act was in effect. The act first was approved on August 5, 1996, as an emergency law, which also imposed a registration requirement. St.1996, c. 239, § 1. See Elroy E. v. Commonwealth, 459 Mass. 1, 2–3 (2011).
While counsel for the defendant argued that the facts on which the probation officer relied to base her request for additional conditions permitted conclusions to be drawn showing either the circumstances had not changed or that the changes, if any, were in fact positive, he did not dispute many of the facts on which the request was based, e.g., the defendant's address, his disciplinary history while confined, and the diagnosis made during a review under G.L. c. 123A, §§ 12–14. Moreover, during the hearing, defense counsel asked no questions of the probation officer. With respect to the “fact” of the proximity of the defendant's address to the water park, which was actually the home of the defendant's seventy-six year old father, counsel argued that the entrance to the park was much farther than suggested and, additionally, that a “very heavily trafficked highway” provided a natural barrier between the defendant's residence and the water park. Speaking to the claim of the defendant's current attraction to young males, counsel argued that the defendant's statement to his probation officer was merely an acknowledgement of his diagnosis, as recommended by his therapy, and was not a statement of current urges or desires.
After hearing, and considering written material submitted by the probation officer, the judge orally stated his findings and rulings in two parts: first, “Mr. Sheehan, I suppose I have two concerns: one is protecting the public and young children, but, as well, it's not setting you up to fail in this. And I do have some concerns if you're living across from a park—theme park that is attracting young children. What I would be inclined to do is to add a condition that you are not to go within 100 yards of Water Wizz”; and second, “based on all that I've heard, I'm satisfied that there is a change in circumstances between what was known at the time of sentencing and what is known today such that additional conditions ought to be imposed to the effect that the defendant is to stay 100 yards away from Water Wizz specifically, and from any other locations where children congregate, to include playgrounds, amusement parks, movie theaters during day hours, video arcades, and the like. And that the defendant is not to have unsupervised conduct—contact with ... young boys under the age of sixteen.”
The defendant contends that the judge erred in modifying the conditions of his probation in the absence of any violation thereof or any demonstration of a material change in circumstances warranting such modifications. “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 ... in any case after a finding or verdict of guilty.” G.L. c. 276, § 87, as appearing in St.1974, c. 614. “[I]t is the function of the sentencing judge to set the conditions of probation.” Commonwealth v. Lally, 55 Mass.App.Ct. 601, 603 (2002), quoting from Commonwealth v. MacDonald, 50 Mass.App.Ct. 220, 223 (2000), S. C., 435 Mass. 1005 (2001). “Judges are permitted ‘great latitude’ in imposing conditions of probation.” Commonwealth v. Lapointe, 435 Mass. 455, 459 (2001), quoting from Commonwealth v. Pike, 428 Mass. 393, 402 (1998). Moreover, “[j]ust as judges have considerable discretion at sentencing in establishing the terms of probation, they also have the discretion to modify those conditions.” Commonwealth v. Goodwin, 458 Mass. 11, 16 (2010). Where, for example, “a defendant has violated a condition of his probation, a judge's authority to modify or add conditions of probation is nearly unlimited.” Id. at 17. However, where, as here, “a defendant has complied with his conditions of probation, a judge's authority ... to modify or add conditions of probation is significantly more limited.” Ibid . Specifically, absent a probationary violation, the sentencing judge may modify the conditions of probation in order “to serve ‘the ends of justice and the best interests of both the public and the defendant’ “ where there is a material change in the defendant's circumstances. Buckley v. Quincy Div. of the Dist. Ct. Dept., 395 Mass. 815, 817 (1985), quoting from Burns v. United States, 287 U.S. 216, 221 (1932). See Goodwin, supra at 16–17.
“A judge may add or modify a probation condition that will increase the scope of the original probation conditions only where there has been a ‘material change in the probationer's circumstances since the time that the terms of probation were initially imposed,’ and where the added or modified conditions are not so punitive as to significantly increase the severity of the original probation.” Id. at 18, quoting from Buckley, 395 Mass. at 818 n. 5, 820. “Because such a modification imposes new burdens on the defendant, even though he has not violated any condition of his probation, we require proof of some basis for modification commensurate with the additional conditions.” Id. at 18–19 (internal quotation marks and citations omitted). Moreover, “[w]here a modified or additional condition is so punitive as to increase significantly the severity of the original probation, even a material change in circumstances is not sufficient under our common law to justify what is essentially a new, harsher sentence.” Id. at 19.
We review the modification of a probation condition to ascertain whether the judge abused his discretion or otherwise committed an error of law. See Commonwealth v. Durling, 407 Mass. 108, 111 (1990) (“How best to deal with the probationer is within the judge's discretion”); Commonwealth v. Morales, 70 Mass.App.Ct. 839, 842 (2007) (“The sole issue on appeal is thus whether the judge abused his discretion in denying the defendant's ... motion seeking modification of the probation conditions”). The judge in the present case stated his conclusion that he was “satisfied that there is a change in circumstances between what was known at the time of sentencing and what is known today,” but he did not explain what he considered to constitute those material changes. Furthermore, though the judge's comments at the hearing describe the nature of the concerns that motivated his ruling, we are unable to discern the analysis, if any, by which he evaluated whether the modifications, especially the geographic restrictions, amounted to punitive measures impermissibly increasing the severity of the underlying sentence. Contrast id. at 847 (judge's refusal to modify probationary terms deemed nonpunitive where “the judge explained ... that the defendant['s] [inability] to live with his wife at [a] particular residence in no way prevent[ed] them from living together in a different residence”). Without a record that shows a discriminating examination of the facts and the analysis under the established framework, we are unable to review the precise bases for the judge's order and, resultantly, we cannot ascertain whether the imposition of additional conditions constituted an abuse of discretion. Consequently, the judge's decision to allow the modification must be vacated and the matter remanded for additional findings and rulings.
This panel retains jurisdiction. The supplemental findings and rulings shall be filed with this court within forty-five days of the date of the rescript. Thereafter, the parties may file supplemental briefs in this court, not to exceed twenty pages, with the defendant's, if any is to be filed, due on or before the fourteenth day following the date of the judge's supplemental findings; the Commonwealth's brief, if any, shall be due fourteen days following the filing of the defendant's brief, or its due date, whichever occurs earlier.
So ordered.