Commonwealth v. Santana

181 N.E.3d 504

COMMONWEALTH

v.Nicholas SANTANA.

SJC-13146

Supreme Judicial Court of Massachusetts, Middlesex.

Argued December 6, 2021.

Decided February 25, 2022.

Estera Halpern, Brookline, for the defendant.

Howard P. Blatchford, Jr., Assistant District Attorney, for the Commonwealth.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.

CYPHER, J.

On September 11, 2014, the probationer, Nicholas Santana, entered pleas of guilty in the Superior Court in Middlesex County to an indictment charging him with carrying a firearm without a license, in violation of G. L. c. 269, § 10 (a ) (count 1), and to an indictment charging him with carrying a loaded firearm, in violation of G. L. c. 269, § 10 (n ) (count 3).¹ In June 2017, while the probationer was serving a suspended sentence, he stipulated to violations of the conditions of his probation, waived a probation violation hearing, and was resentenced with additional conditions of probation. The probationer filed a motion to revise and revoke his sentence, which was denied. The probationer appeals from the denial of his motion to revise and revoke his sentence of probation as well as from the sentence of probation itself.

The probationer claims that the denial of his motion to revise and revoke his sentence was an abuse of discretion. He argues that the motion judge failed to consider the effect of a "forthwith" sentence, see G. L. c. 279, § 27 ( § 27 ), imposed in a separate case, on his sentence of probation in this case. For the reasons that follow, we affirm the order denying the probationer's motion.

We also conclude that the probationer's appeal from his sentence of probation is not properly before us. Nevertheless, because the arguments have been briefed fully and present issues of importance in the conduct of surrender hearings, we exercise our discretion to reach the issues raised. In particular, we take this opportunity to adopt the analysis and conclusion of the Appeals Court in Commonwealth v. Sayyid, 86 Mass. App. Ct. 479, 480, 17 N.E.3d 469 (2014), and hold that a probationer's agreement to waive a probation violation hearing, including by stipulating to probation violations, must be knowing and voluntary and that the validity of such a waiver should be evaluated in light of the totality of the circumstances. We conclude that the probationer's stipulation and waiver were knowing and voluntary, and we therefore affirm his sentence.²

The probationer also challenges a specific condition of his probation as not being reasonably related to the goals of sentencing. While this argument would be waived even if the appeal from the sentence properly were before us, we reach the issue because of its importance and because it presents the opportunity to clarify our case law in this area. We conclude that the challenged condition was proper.

Background. Following the probationer's original pleas of guilty, the judge imposed a sentence on count 1 of two and one-half years in a house of correction, with eighteen months to be served and the balance (one year) suspended for a period of five years, during which time the probationer would serve probation. The judge also sentenced the probationer to five years of probation on count 3, to be served concurrently with the probation sentence imposed in count 1.

Separately, on January 16, 2015, the probationer was sentenced in a case in the Superior Court in Worcester County (Worcester case) to a State prison term of from two and one-half years to two and one-half years and a day, to be served "forthwith and notwithstanding any sentence [that he is] now serving."

In April 2017, the probationer was served with a notice of alleged probation violation alleging that he had (1) recklessly endangered a child, (2) committed assault and battery on a family member, (3) failed to report to the probation office for a visit, and (4) distributed a class B controlled substance. The notice listed the probationer's rights, including a right to cross-examine witnesses against him, a right to present evidence, and a right to a hearing.

A surrender hearing was held on June 21, 2017. At the start of the hearing, the probationer, through counsel, indicated that he would stipulate to the violations and the probation department's proposed resolution. A probation officer then testified that two criminal complaints had entered in the District Court against the probationer, one charging reckless endangerment of a child and domestic assault, and the other charging distribution of a class B substance. The probation officer outlined the recommendation requiring the probationer to serve the one-year suspended portion of his sentence on count 1 and that he be placed on probation for two years following the completion of that sentence. Finally, the probation officer described the recommended conditions of probation, including the entry of an abuse prevention order as to the mother of the probationer's child and the requirement that the probationer participate in a ten-month batterer's intervention program after his release from incarceration.

The judge then held the following colloquy with the probationer:

THE JUDGE : "Mr. Santana, your lawyer tells me that you want to stipulate to these violations. Is that true?"

THE PROBATIONER : "Yes."

THE JUDGE : "Do you know what that means?"

THE PROBATIONER : "Yes."

THE JUDGE : "What does it mean?"

THE PROBATIONER : "Waiving my rights."

THE JUDGE : "You're waiving your rights because you have a right to a hearing and [the probation officer] would have to prove that you actually violated your probation by distributing Class B and by domestic assault and reckless endangerment. You're giving up that right to a hearing. Do you understand that?"

THE PROBATIONER : "Yes."

THE JUDGE : "Did you talk to [your attorney] about that decision?"

THE PROBATIONER : "I did."

...

THE JUDGE : "Did she explain to you all the choices you have here?"

THE PROBATIONER : "She did."

THE JUDGE : "Did you choose to waive your hearing?"

THE PROBATIONER : "Yes."

THE JUDGE : "Nobody pressured you into it?"

THE PROBATIONER : "No."

During the colloquy, the probationer's attorney volunteered that she twice had visited him in jail to speak with him. The judge made a finding on the record that the probationer had violated the terms of his probation. She then imposed the remaining one-year suspended portion of the original sentence on count 1 and imposed a two-year term of probation on count 3, with the recommended conditions, to run from and after the committed portion of the sentence.

On July 6, 2017, the probationer filed a motion to revise and revoke his sentence. His counsel submitted an affidavit in which she averred that, at the time of the surrender hearing, she had been unaware that the sentence in the Worcester case was a forthwith sentence. On September 22, 2017, at the hearing on the motion, counsel for the probationer argued that, under § 27, the forthwith sentence terminated both the committed and the probation portions of the sentence in this case. The judge denied the motion. On the following day, the probationer filed a notice of appeal from the denial of the motion to revise and revoke, purporting also to appeal from the "verdict" entered on June 21, 2017, after the surrender hearing. We transferred the appeal to this court on our own motion.

Discussion. On appeal the probationer argues that (1) the judge abused her discretion by failing to weigh the impact of the forthwith sentence in the Worcester case on the probationer's probation sentence, (2) his waiver of his right to an evidentiary probation violation hearing was not knowing and voluntary, (3) his right to due process was violated when the judge revoked his probation without any evidence of the alleged violations, and (4) the condition that he attend a batterer's intervention program is not reasonably related to the goals of sentencing and probation as to the underlying firearms convictions. The Commonwealth argues that § 27 does not apply to the probationer's sentence of probation and that the probationer's appeal from his sentence is not properly before us. We consider these arguments in turn, beginning with the appeal from the denial of the probationer's motion to revise and revoke his sentence, which undisputedly is timely and which, if successful, would render the appeal from his sentence moot.

1. G. L. c. 279, § 27, and the effect of the forthwith sentence. The question whether a forthwith sentence under § 27 terminates a preexisting sentence of probation is a question of first impression.³ We review matters of statutory interpretation de novo. See Commonwealth v. Moffat, 478 Mass. 292, 298, 85 N.E.3d 38 (2017), S.C., 486 Mass. 193, 157 N.E.3d 45 (2020). While the probationer argued at the hearing on his motion to revise and revoke his sentence that § 27, by its terms, meant that his probation sentence automatically was terminated by the forthwith sentence in the Worcester case, he argues on appeal only that the judge had the discretion to consider the impact of the Worcester sentence on his probation sentence and failed to do so.

These arguments are interrelated, and the result depends on our interpretation of § 27, which states:

"If a convict serving a sentence of imprisonment in a jail or house of correction is convicted of a felony, the court may impose sentence of imprisonment in the state prison and order it to take effect forthwith, notwithstanding the former sentence. The convict shall thereupon be removed to the reception center established under [ G. L. c. 127, § 20 ], and shall be discharged at the expiration of his sentence thereto."

The statute does not refer to sentences of probation, and instead by its plain terms applies only to sentences of imprisonment. Thus, § 27 does not apply to the probationer's sentence of probation. See Commonwealth v. Keefner, 461 Mass. 507, 512, 961 N.E.2d 1083 (2012), quoting Commonwealth v. Russ R., 433 Mass. 515, 521,...