Commonwealth v. Pena

462 Mass. 183

967 N.E.2d 603

COMMONWEALTH

v.Ulysses PENA.

SJC–10953.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Jan. 6, 2012.

Decided May 9, 2012.

David J. Rotondo for the defendant.

Helle Sachse, Assistant District Attorney, for the Commonwealth.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, & GANTS, JJ.

SPINA, J.

Ulysses Pena (probationer) was sentenced to terms of incarceration as a result of the revocation of his probation in the Superior Court. He appealed, arguing that he was denied the right to counsel at his probation violation hearing in contravention of the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights.¹ In an unpublished memorandum and order entered on December 8, 2010, the Appeals Court, relying on Commonwealth v. Fallon, 53 Mass.App.Ct. 473, 475, 759 N.E.2d 1228 (2001), dismissed the probationer's appeal as moot because he had pleaded guilty to the charges that formed the basis for his probation revocation. We granted the probationer's application for further appellate review. For the reasons that follow, we now affirm the revocation of probation.

1. Background. We begin with a brief overview of the proceedings below, reserving further details for our discussion of the specific issues.

On April 24, 2006, the probationer pleaded guilty in the Superior Court to charges of breaking and entering in the daytime with the intent to commit a felony, G.L. c. 266, § 18 (count 1); larceny over $250, G.L. c. 266, § 30(1) (count 2); possession of burglarious tools, G.L. c. 266, § 49 (count 3); and resisting arrest, G.L. c. 268, § 32B (count 4). On count 1, he received a sentence of from two years to two years and one day in State prison. On counts 2, 3, and 4, he was given two years' probation with special conditions, to be served “from and after” his sentence on count 1. The probationer was released from his State prison sentence on October 27, 2006, and his term of probation extended through October 27, 2008. The conditions of his probation included reporting to his probation officer and paying a monthly probation supervision fee or, in the alternative, performing community service.

On June 13, 2007, while he was on probation, a Suffolk County grand jury returned several indictments against the probationer: breaking and entering in the daytime with the intent to commit a felony, G.L. c. 266, § 18 (three indictments); breaking and entering in the nighttime with the intent to commit a felony, G.L. c. 266, § 16 (three indictments); receiving stolen property with a value under $250, G.L. c. 266, § 60 (three indictments); receiving stolen property with a value over $250, G.L. c. 266, § 60 (one indictment); and larceny over $250, G.L. c. 266, § 30(1) (five indictments).² The charges stemmed from complaints to the police about the breaking and entering into homes in the Jamaica Plain, Roslindale, and Hyde Park neighborhoods of Boston on several dates, the majority primarily in 2007.

The probation department issued to the probationer a notice of surrender and hearings for alleged probation violations.³ The alleged violations set forth in the notice were nine of the new offenses, as well as the probationer's failure to pay the monthly probation supervision fee in full and his failure to report to his probation officer on January 16, 17, and 31, 2008.

A judge in the Superior Court held a hearing on April 30, 2008. As will be discussed later in this opinion, the probationer had been appointed standby counsel, but at the commencement of the proceeding, he requested a continuance to retain private counsel. The judge denied the request. At the conclusion of the Commonwealth's evidence, the probationer again requested a continuance so that he could secure at least one witness to appear on his behalf and could retain private counsel. The judge granted the request, and the hearing resumed on July 29, 2008. The probationer had secured neither a witness nor private counsel, although he continued to have standby counsel.

At the conclusion of the hearing, the judge found that, as a result of the probationer's commission of the offenses set forth in the notice of surrender, the probationer had violated the conditions of his probation and, consequently, his probation was revoked. The judge sentenced the probationer to from four to six years in State prison on count 3, possession of burglarious tools, and from four to five years in State prison on count 2, larceny over $250, to run concurrently with the sentence on count 3. The judge ordered that the probationer's probation be terminated on count 4, resisting arrest.

On May 4, 2010, the probationer pleaded guilty to thirteen of the indictments that had been returned on June 13, 2007. See note 2, supra.

2. Mootness. As a preliminary matter, the Commonwealth contends that the probationer's appeal should be dismissed as moot because he pleaded guilty to the charges that formed the basis of his probation revocation. We disagree.

Generally speaking, “a case becomes moot ‘when the issues presented are no longer “live” or the parties lack a legally cognizable interest in the outcome.’ ” Murphy v. Hunt, 455 U.S. 478, 481, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982), quoting United States Parole Comm'n v. Geraghty, 445 U.S. 388, 396, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980). See Blake v. Massachusetts Parole Bd., 369 Mass. 701, 703, 341 N.E.2d 902 (1976). In Commonwealth v. Fallon, 53 Mass.App.Ct. 473, 474–475, 759 N.E.2d 1228 (2001)( Fallon ), the court considered whether a probationer could appeal from an order revoking his probation where he had served the six-month sentence reimposed on revocation and was discharged before the appeal was briefed, and where he ultimately was convicted of the charges on which the revocation order was based. Concluding that the probationer's appeal was moot, the court stated that “[t]he convictions establish[ed], as [a] matter of record, based on the higher, beyond a reasonable doubt standard of proof, ... that the [probationer], while on probation, violated the conditions of his freedom by committing new criminal offenses” (citation omitted). Id. at 475, 759 N.E.2d 1228. That fact, the court continued, “submerge[d] any residual negative consequences of the probation revocation, so that questions concerning the validity of the revocation [were] purely academic.” ⁴Id.

In Fallon, the court viewed the probationer's convictions of the charges on which the revocation order was based as trumping claims of irregularities in the revocation proceedings, rendering any such considerations moot.⁵ See id. at 474–475, 759 N.E.2d 1228. However, a decision to revoke probation involves two distinct components. “[T]he 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.” Commonwealth v. Durling, 407 Mass. 108, 111, 551 N.E.2d 1193 (1990). See Commonwealth v. Faulkner, 418 Mass. 352, 365 n. 11, 638 N.E.2d 1 (1994) (not every probation violation requires revocation); McHoul v. Commonwealth, 365 Mass. 465, 469–470, 312 N.E.2d 539 (1974) (dispositional decision is matter of judicial discretion). See also Black v. Romano, 471 U.S. 606, 611, 105 S.Ct. 2254, 85 L.Ed.2d 636 (1985). See generally Rule 5 of the District Court Rules for Probation Violation Proceedings 89 & commentary (LexisNexis 2011–2012) (conduct of probation violation hearings). In our view, the focus of the court's analysis in Fallon essentially pertained to the first component of the judge's probation revocation decision because of the nature of the probationer's claims in that case, and did not necessitate consideration of the second component of that decision. Here, the nature of the probationer's claim requires a broader analysis.

Certainly subsequent convictions or guilty pleas render moot an appellate claim that a judge erred in determining that a probationer had violated the conditions of his probation by committing a new offense. Indeed, the probationer here has not challenged the evidence supporting the judge's findings that he violated the conditions of his probation. However, subsequent convictions or guilty pleas do not render moot a claim, like the one made here concerning the right to counsel, that some aspect of the proceeding violated the probationer's constitutional rights, potentially impacting the second phase of the judge's probation determination, that pertaining to the disposition of the matter.

A probationer's right to present material relevant to this discretionary stage of a revocation proceeding is well established. See Commonwealth v. Durling, supra at 115–116, 551 N.E.2d 1193. See also Rule 5(d) of the District Court Rules for Probation Violation Proceedings, supra at 90 (“probationer shall be permitted to present argument and evidence relevant to disposition and to propose dispositional terms”). “It is not enough that a violation of probation conditions has been admitted or established at a hearing. A further and equally important step is necessary to determine whether such a violation warrants revocation and, if so, what sentence shall be imposed.” ⁶United States v. Diaz–Burgos, 601 F.2d 983, 985 (9th Cir.1979). The “probationer is entitled to an opportunity to show not only that he did not violate the conditions [of his probation], but also that there was a justifiable excuse for any violation or that revocation is not the appropriate disposition.” Black v. Romano, supra at 612, 105 S.Ct. 2254. See United States v. Morin, 889 F.2d 328, 332 (1st Cir.1989) (probationer has right, during second stage of revocation proceeding, to present court with mitigating circumstances and to put probation...