Opinion
16-P-832
02-03-2017
COMMONWEALTH v. Napier TRAYLOR.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Napier Traylor, appeals from a Superior Court judge's order denying his "Motion to Reinstate [ ] Probation." He claims that (1) the Commonwealth's failure to provide a timely probation revocation notice deprived him of due process, (2) the judge failed to provide written notice of the evidence supporting the probation revocation, and (3) the judge improperly relied on the defendant's criminal history in determining whether he had violated his probation. We affirm.
Background . On January 21, 2010, the defendant pleaded guilty to unarmed robbery, and assault and battery by means of a dangerous weapon (ABDW). He was incarcerated in State prison on the unarmed robbery count, and sentenced to five years of probation, to be commenced upon his release from prison, on the ABDW count. The terms of his probation included the following special conditions: abstaining from illegal drug and alcohol use, undergoing drug and alcohol evaluation and possible treatment, undergoing mental health evaluation and possible treatment, seeking and maintaining employment, and acquiring a GED. He was also required to report to his probation officer, pay a victim-witness fee and probation supervision fee, and refrain from violating any laws.
On June 8, 2012, a "Notice of Surrender" was filed in the Superior Court, alleging that the defendant violated the terms of his probation. On September 7, 2012, the defendant stipulated to the violation and was placed on further probation on essentially the same terms and conditions.
The judge substituted community service for payment of the probation supervision fee.
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On October 5, 2012, the defendant was arraigned in the Boston Municipal Court (BMC) on new criminal charges. On October 11, 2012, a second "Notice of Surrender" was filed in the Superior Court, alleging that the defendant again violated the terms of his probation. On March 21, 2013, after a hearing in the Superior Court, a judge found that the defendant had violated his probation terms. She revoked his probation and sentenced him to a term of imprisonment. More than three years later, on March 25, 2016, the defendant filed a "Motion to Reinstate the Probation," that was denied. He appeals therefrom.
Discussion . 1. Notice of probation violation . The defendant claims to have suffered a due process violation because he did not receive a surrender notice, in-hand, at his October 5, 2012, arraignment in the BMC. The argument is unavailing. The judge credited the testimony of the Superior Court probation officer who served the notice of surrender on the defendant, in-hand, on October 18, 2012. Insofar as the final probation violation hearing was not held until March 21, 2013, the defendant had more than sufficient notice to comport with due process. See Commonwealth v. Brown , 23 Mass. App. Ct. 612, 617 (1987) (two-week interval from service of probation revocation notice to date of hearing provided defendant reasonable time for preparation).
2. Absence of written findings . Next, the defendant contends that he was denied due process because the judge failed to provide written findings delineating her reasons for revoking his probation. The claim is without merit. The judge stated on the record her reasons for revoking probation. Her reasons included her finding, based on the probation officer's testimony and documents presented at the revocation hearing, that the defendant failed to comply with numerous conditions of probation. Specifically, she found that the defendant had not undergone mental health counseling and substance abuse counseling, did not maintain employment, did not complete community service, and did not pay the victim-witness fee. The record supported her findings, and the defendant received actual notice of the bases for the probation revocation. See Commonwealth v. Morse , 50 Mass. App. Ct. 582, 593-594 (2000).
3. Defendant's criminal history . The defendant also claims that the judge improperly relied on his criminal history in determining whether he had violated his probation. We disagree. As discussed, supra , the record reflects that the judge found that the defendant had violated his probation due to noncompliance with multiple conditions of his probation. After determining that he had violated his probation terms, the judge looked at various factors, including his criminal history, to determine an appropriate sentencing disposition. The judge did not abuse her discretion in so doing. See Commonwealth v. Durling , 407 Mass. 108, 111 (1990) ("At the revocation hearing, the judge must determine, as a factual matter, whether the defendant has violated the conditions of his probation. If the judge determines that the defendant is in violation, he can either revoke the probation and sentence the defendant or, if appropriate, modify the terms of his probation. How best to deal with the probationer is within the judge's discretion.").
Order denying motion to reinstate probation affirmed .