Opinion
No. 15–P–1514.
10-20-2016
COMMONWEALTH v. Robert V. SHELL.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from an order of the Superior Court, revoking his probation and imposing one of three suspended sentences for a term of incarceration of fifteen to twenty years. We agree with the defendant that the violation on which the judge relied in her decision to revoke his probation was not the violation she found at the evidentiary hearing, and that it was not among the alleged violations identified in the notice of surrender. We accordingly are constrained to vacate the order of revocation, and to remand the matter for consideration of the appropriate disposition, based solely on the violation the judge found.
The defendant was reprobated for five years on the other two suspended sentences, from and after his incarceration.
By notice of surrender dated May 16, 2014, the defendant was notified of two alleged violations of the conditions of his probation: (i) contact with a child under the age of fourteen years, and (ii) noncompliance with sex offender treatment. Following an evidentiary hearing held on May 28, 2014, the judge found the defendant in violation of the condition prohibiting contact with a child under fourteen, but found no violation of the condition requiring his participation in sex offender treatment. The judge continued the hearing to July 2, 2014, for disposition and sentencing. At the disposition hearing, the judge stated, incorrectly, that she previously had found a violation of a third condition of the defendant's probation: that he advise any woman with children under the age of fourteen with whom he has a personal or business relationship of the nature of his criminal record (the “notification condition”). Though the defendant's counsel corrected the judge, the judge persisted in referring to violation of the notification condition as the basis for revocation of the defendant's probation, and made no reference to the violation of the “no contact with children” condition that she found at the violation hearing.
The hearing originally was scheduled for June, 2014.
For clarity, we refer to the May 28, 2014, evidentiary hearing as the “violation hearing” and the July 2, 2014, hearing as the “disposition hearing.”
Because the notification condition was not included among the alleged violations in the notice of surrender sent to the defendant, a violation of it, even if supported by the evidence, cannot be the basis for revocation of his probation. See Commonwealth v. Michaels, 39 Mass.App.Ct. 646, 649 (1996). See also Commonwealth v. Durling, 407 Mass. 108, 113 (1990). In circumstances in which a judge relies on an improper consideration in revoking a defendant's probation, the order of revocation cannot stand—even if other violations of probationary conditions are also found. See Commonwealth v. Arroyo, 451 Mass. 1010, 1011 (2008). “In these circumstances, it is not for an appellate court to speculate ‘what action the judge would have taken’ “ had she relied only on the violations properly available for her consideration. Ibid., quoting from Commonwealth v. Aquino, 445 Mass. 446, 450 (2005). We accordingly are constrained to vacate the order revoking the defendant's probation, and to remand the matter to the Superior Court for consideration of the appropriate disposition, based solely on the violation found by the judge at the violation hearing.
So ordered.