Commonwealth v. Prevost

97 Mass.App.Ct. 1109

144 N.E.3d 310 (Table)

COMMONWEALTH

v.Raymond PREVOST.

19-P-807

Appeals Court of Massachusetts.

Entered: April 7, 2020.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a hearing, a judge of the Superior Court found that the defendant had violated the terms of his probation; the judge then revoked the defendant's probation and sentenced him to a period of incarceration, along with from and after probation. The defendant appeals, arguing that the judge improperly based his decision to revoke probation on a finding that the defendant had violated an outstanding abuse prevention order, issued pursuant to G. L. c. 209A (restraining order). The Commonwealth concedes that it presented insufficient evidence to prove that the defendant knowingly violated the restraining order, and we agree. The issue, then, is whether the case should be remanded for reconsideration and we conclude that it should. We therefore vacate the orders revoking probation and imposing sentence and remand the case for further proceedings consistent with this memorandum and order.

Background. The defendant pleaded guilty on September 23, 2016 to breaking and entering in the daytime with intent to commit a felony; larceny from a building; breaking and entering a vehicle/boat with intent to commit a felony; and larceny over $250. For the two breaking and entering charges, the judge sentenced him to concurrent sentences of three and one-half years to three and one-half years and a day in State prison, with 680 days of credit for time served. For the two larceny charges, the judge sentenced him to three years of probation, to be served from and after the incarcerated portion of the sentence.

On the same day, the defendant signed general and special conditions of probation, including one that he obey "all local, state and federal laws and all Court Orders," pay restitution, and pay a probation supervision fee. On February 2, 2018, the defendant was released from prison. On March 3, 2018, the court entered an order modifying the conditions of probation, adding the conditions that the defendant refrain from use of narcotics; submit to an evaluation for drug abuse; enter and successfully complete any recommended inpatient or outpatient treatment program; and submit to random testing for drug use.

On May 16, 2018, the defendant's ex-girlfriend filed an application for a restraining order in the District Court, and, after an ex parte hearing, the judge issued an order that the defendant not abuse her, stay away from her residence, not contact her, and stay fifty yards away from her wherever she was. The judge also ordered the defendant to surrender any guns, ammunition or gun licenses to the Fall River Police Department. In her affidavit in support of the restraining order, the plaintiff stated that, on or about May 15, 2018, she returned to her home and found her door broken; the defendant was sleeping in her bed with her iPad, her old cell phone, and her jewelry beside him. She further claimed that, after she woke him up, the defendant began throwing items at her, kicking furniture, and punching things. "He also made verbal threats to come and harm [her]." The plaintiff stated that she called the police and the defendant fled.

On May 30, 2018, following a hearing, the restraining order was extended for a year, until May 29, 2019. The face of the order indicates that the plaintiff appeared and the defendant did not. On June 3, 2018, the plaintiff received a call from the house of correction; once she heard the defendant's name, she hung up. Later, she received a text from the girlfriend of a man incarcerated with the defendant, asking whether the defendant could call her. The plaintiff did not reply.

On May 14, 2018, the Probation Department filed a probation violation notice and issued a warrant for the defendant. The violation notice subsequently was amended on May 17, May 29, and June 19, 2018 and alleged the defendant failed to appear for scheduled appointments, failed to appear for drug screens, left probation upon a request to have a drug screen, committed an assault on a family member and intimidated a witness, admitted to using heroin, had an abuse prevention order issued against him, and violated that order. On June 19, 2018, following an evidentiary hearing, the judge revoked the defendant's probation based on several criminal and noncriminal violations. Specifically, the judge found that the defendant had failed to report to probation on April 26, April 30, and May 10, failed to report for a drug screen on May 8, and he ran from his probation officer on May 14 after the probation officer requested another drug screen. The judge also found that the Commonwealth had proved by a preponderance of the evidence that, on or about May 15, 2018, the defendant broke into the victim's apartment with intent to commit a felony. Further, he found that the Commonwealth had proved that the defendant had violated the restraining order, in violation of G. L. c. 209A, § 7, by directing a third party to send a text message to the plaintiff.

On appeal, the defendant argues that the Commonwealth presented insufficient evidence to support a finding that he knew of the existence of the restraining order when the victim received the text message on June 3, 2018. Because the judge revoked the defendant's probation based at least partly on his conclusion that the defendant had committed this substantive offense, the defendant contends that the order revoking his probation should be vacated and the matter remanded for the judge to reconsider and to decide the appropriate disposition.

As noted, supra, the Commonwealth concedes that the evidence was insufficient to prove that the defendant knowingly violated an outstanding restraining order. Specifically, the restraining order offered in evidence "did not have any return of service with it, or any other evidence that the defendant had been served with the order." The Commonwealth argues, however, that the restraining order violation was not a significant factor in the judge's decision to revoke the defendant's probation, considering that there were other, significant violations of the terms of probation. For that reason, the Commonwealth contends that the sentence should stand.

Discussion. The defendant relies on Commonwealth v. Arroyo, 451 Mass. 1010, 1012 (2008), for the proposition that, when a judge considers an unsubstantiated probation violation and then revokes the defendant's probation, this court should not speculate about the actions the judge might have taken; rather, consistent with Arroyo, we should vacate the revocation decision and "remand the case to the Superior Court for consideration of the appropriate disposition, based solely on violations that" were proven at the underlying hearing. While we ultimately come to the same conclusion, in Arroyo, the judge improperly considered an alleged probation violation that occurred after the defendant's term of probation had ended. Id. at 1011. Here, the unproven violation occurred within the probationary period. This court, however, recently has addressed facts more closely analogous to the facts before us.

In Commonwealth v. Hamilton, 95 Mass. App. Ct. 782, 785 (2019), a judge had revoked the defendant's probation after finding that the defendant possessed two forms of child pornography, writing and photographs, both in violation of the terms of his probation. The judge also found that the defendant had failed to report to probation, as required, on two occasions. Id. at 788. On appeal, this court concluded that possession of the...