Commonwealth v. Dhameja

179 N.E.3d 1134 (Table)

COMMONWEALTH

v.Raj DHAMEJA.¹

20-P-1410

Appeals Court of Massachusetts.

Entered: December 20, 2021.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a hearing in the District Court, the defendant, Raj Dhameja, was found in violation of the terms of his probation. The judge revoked the defendant's continuance without a finding (CWOF), entered a guilty finding, and sentenced the defendant to one year in the house of correction. The defendant then filed a motion for a new trial based on newly discovered evidence, which was denied. He appeals, claiming that the probation violation proceedings violated his due process rights and that the judge considered unreliable hearsay and abused his discretion in revoking the defendant's probation and in denying his motion for a new trial. We affirm.

Background. In November 2011, the defendant was charged with larceny over $250 by a single scheme, in violation of G. L. c. 266, § 30 (1). On July 3, 2014, the defendant admitted to sufficient facts, a CWOF entered, and he was placed on administrative probation until June 30, 2015. On March 24, 2015, the probation department mailed a notice of probation violation and hearing to the defendant's address of record in Scituate, scheduling a hearing for April 14, 2015. The notice alleged that the defendant failed to report to his probation officer on March 12, 2014; failed to notify his probation officer of his exact address; and his whereabouts were unknown. On April 14, 2015, the defendant failed to appear for the probation violation hearing; a default warrant issued for his arrest.

On October 7, 2016, the defendant removed the default. On November 8, 2016, a probation violation hearing was held. The judge found that the defendant was in violation of the terms of his probation for (1) failing to notify the probation department of his change of address, (2) failing to report to his probation officer on March 12, 2015, (3) failing to appear at the April 2015 probation violation hearing, and (4) his whereabouts being unknown. The judge revoked the CWOF and sentenced the defendant to one year in the house of correction, with credit for time served. The same judge denied the defendant's motion for a new trial. The defendant timely appealed.

Discussion. 1. Due process claims. The defendant claims that the probation violation proceedings violated his due process rights because he was not properly served, he was not given proper notice of the alleged probation violations, and the judge did not provide an adequate written statement explaining his decision. We are not persuaded.

In the probation revocation context, "[d]ue process requires that a probationer receive fair warning of conduct that may result in revocation of probation." Commonwealth v. Riz, 90 Mass. App. Ct. 10, 13 (2016), quoting Commonwealth v. Kendrick, 446 Mass. 72, 75 (2006). Pursuant to the order of probation conditions issued by the plea judge that the defendant signed, he was on notice that he was required to notify his probation officer of any change of residence within forty-eight hours. This he did not do.³

"[T]he adequacy of an attempt or attempts to serve notice must be determined on a case-by-case basis, and the court particularly should examine the adequacy of the attempts in light of the information possessed by the authority charged with giving notice." Commonwealth v. Faulkner, 418 Mass. 352, 363 (1994). Here, the notice of probation violation and hearing was mailed to the defendant by regular mail to the last known address that the defendant provided.⁴ This form of notice complied with Rule 4 of the District/Municipal Courts Rules for Probation Violation Proceedings. Any lack of notice was "not due to any failure by the [probation department] to mail notice, but rather the defendant's own neglect in not informing [his probation officer] of his change of address." Commonwealth v. Francis, 374 Mass. 750, 754 (1978). Cf. Faulker, supra at 360-364. Moreover, the defendant was served in hand with a second notice of probation violation on October 7, 2016, the day that he removed the default.⁵

The defendant next claims that the judge failed to provide a written statement explaining his reasons for revoking his probation. "Due process requires a judge to issue a written statement supporting a probation revocation to help insure accurate factfinding with respect to any alleged violation and provide[ ] an adequate basis for review to determine if the decision rests on permissible grounds supported by the evidence" (quotation and citation omitted). Commonwealth v. Ogarro, 95 Mass. App. Ct. 662, 667 (2019). "This aspect of due process, however, is not an inflexible invariably mandatory requirement.... The judge's statement is sufficient if it provides the probationer with the reasons for the decision, adequate for the probationer to obtain a meaningful review" (quotation omitted). Id.

Here, the judge made oral findings at the violation hearing and completed a probation violation finding and disposition form, which listed the reasons for revoking the defendant's probation. Taken together, the requirements of due process were satisfied and provided an adequate basis for the defendant to receive meaningful review. Compare Commonwealth v. Bain, 93 Mass. App. Ct. 724, 724-727 (2018) (judge's oral findings and completed probation violation findings and disposition form complied with due process even where "blank line, to be filled in by the judge with specific evidence relied on to support the violation finding" was left blank).

2. Finding of probation violation. The defendant next contends that the judge abused his discretion in finding that the defendant violated the terms of his probation. "A defendant on probation is subject to a number of conditions, the breach of any one of which constitutes a violation of his probation." Commonwealth v. Durling, 407 Mass. 108, 111 (1990). "The Commonwealth must prove any ‘violation of probation by a preponderance of the evidence.’ " Commonwealth v. Grant G., 96 Mass. App. Ct. 721, 724 (2019), quoting Commonwealth v. Bukin, 467 Mass. 516, 520 (2014). "A determination whether a violation of probation has occurred lies within the discretion of the hearing judge." Bukin, supra at 519-520, citing Durling, supra at 111-112. Accordingly, we review an order revoking probation for an abuse of discretion.

"Probation enables a judge to tailor an appropriate individualized sentence for such time and upon such conditions as he or she deems proper." Commonwealth v. Powers, 73 Mass. App. Ct. 186, 188 (2008). When the defendant agreed to a CWOF in the underlying case, he was placed on administrative probation. In addition to paying restitution, the defendant was ordered to comply with the general conditions of probation, none of which the judge struck. Thus, the defendant was under an obligation to comply with those conditions, including providing his current address to the probation department.⁶ See id. Moreover, the defendant signed the form and in doing so he expressly attested that he "read and [understood] the above conditions of probation and [he] agree[d] to observe them." The judge did not abuse his discretion in finding, by a preponderance of the evidence, that the defendant did not report to his probation officer, did not report his change of address, defaulted at the first probation violation...