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SJC-11895
COMMONWEALTH vs. DANNY VARGAS.
Essex. November 2, 2015. - August 3, 2016.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.1
Marijuana. Practice, Criminal, Probation, Revocation of
probation, Assistance of counsel. Constitutional Law,
Assistance of counsel.
Indictment found and returned in the Superior Court
Department on November 19, 2012.
A proceeding for revocation of probation was heard by
Richard E. Welch, III, J.
The Supreme Judicial Court granted an application for
direct appellate review.
Michael D. Cutler for the defendant.
Philip A. Mallard, Assistant District Attorney, for the
Commonwealth.
Eva G. Jellison & David J. Nathanson, for Committee for
Public Counsel Services, amicus curiae, submitted a brief.
1
Justice Duffly participated in the deliberation on this
case prior to her retirement.
2
David A.F. Lewis, Sarah Heaton Concannon, & Robyn R.
Schwartz, for Massachusetts Association of Criminal Defense
Lawyers, amicus curiae, submitted a brief.
HINES, J. In this appeal, we are asked to decide whether
the medical marijuana law, St. 2012, c. 369 (act),2 establishing
immunity for the medical use of marijuana, applies in a
probation surrender proceeding based on the use of marijuana,
purportedly for medical purposes. The issue arises from a
judge's order finding the defendant, who claimed immunity under
the act, in violation of probation for the use of marijuana,
terminating the probation and imposing a sentence to State
prison.
The defendant challenges the disposition and seeks a new
probation surrender hearing, arguing that the sentence violates
his right, as a qualifying patient under the act, to the medical
use of marijuana without adverse legal consequences. He also
argues that counsel was ineffective in failing to defend the
probation surrender on this ground. The Commonwealth counters
that the court permissibly conditioned the defendant's probation
on the prohibition of any nonprescription controlled substance,
and properly terminated probation for failure to comply with
this and other conditions. The Commonwealth also argues that
2
On November 6, 2012, Massachusetts voters approved by
referendum St. 2012, c. 369, "An Act for the humanitarian
medical use of marijuana."
3
counsel was not ineffective for failing to assert the immunity
provision of the act where defense counsel's decision to forgo a
medical marijuana defense in favor of a plea for leniency was
not manifestly unreasonable.
We granted the defendant's application for direct appellate
review. We conclude that, in the circumstances of this case,
the judge committed no error in finding the defendant in
violation of his probation and that, although counsel was
ineffective in stipulating to the violation without raising the
issue as a defense to the violation, the defendant suffered no
prejudice from this lapse.
Background. We summarize the facts as recited by the
Commonwealth at the plea hearing and stipulated to by the
defendant. On October 12, 2012, the defendant entered a variety
store in Haverhill, pointed what appeared to be a firearm at the
clerk, and demanded money. The clerk provided approximately
$400, and the defendant left the store. Information from the
clerk and the defendant's mother tied the defendant to the
robbery, and he subsequently confessed. The defendant told
police "that he used some of that money to pay back people to
whom he owed money and also used some of the money to buy
marijuana."
Based on these facts, the defendant pleaded guilty to armed
robbery in April 17, 2013. During the plea hearing, the
4
defendant admitted to the regular use of marijuana and stated
that he had used marijuana during the prior twenty-four hours.
In accordance with an agreed-upon recommendation, the plea judge
sentenced the defendant to three years of probation, which
included conditions relating to illegal drug use without a
prescription and random drug testing.3 Referencing the use of
marijuana as a factor in the commission of the crime, the judge
specifically informed the defendant that the prohibition on the
use of illegal drugs included the use of marijuana. The judge
further explained that the defendant would be required to follow
all Federal, State, and local laws during the period of
probation. The judge also explained, "Those laws include laws
regarding possession of marijuana. So during the period of
probation you would not be able to possess or use marijuana even
for personal use; do you understand that?" The defendant
responded, "Yes, Your Honor." After receiving this information
and before sentencing, the defendant stated his explicit
agreement to the condition of no marijuana use: "I would just
like to say if I am put on probation Your Honor I will comply
3
The terms of the probation required the defendant to
submit to random drug screens, attend substance abuse
counselling, attend mental health treatment, use medication only
as prescribed by doctors, abstain from use of controlled
substances unless otherwise prescribed, submit a
deoxyribonucleic acid sample, avoid contact with the variety
store employees, complete high school, gain employment, and pay
restitution in the amount of $400.
5
with everything that is put on me. I will comply with
everything and see it through and you will not see me in court
again." The judge imposed the probationary sentence with the
stated conditions to take effect immediately.4
On April 24, 2013, within days of the plea hearing, the
defendant tested positive for marijuana. He tested positive for
marijuana a second time on May 14, 2013. On May 29, 2013, the
defendant secured a document from a physician entitled
"Physician's Certificate for the Use of Medical Marijuana in the
Commonwealth of Massachusetts Pursuant To 105 [Code Mass.
Regs. §] 725" (certificate).5 That document purported to
"certify and approve [the defendant's] use of medical marijuana"
4
The judge noted that he had a stark choice to make because
he could only sentence the defendant to State prison or to a
period of probation.
5
On May 8, 2013, the Department of Public Health
(department) issued regulations implementing the medical
marijuana law, St. 2012, c. 369 (act). Those regulations
require a two-step process to trigger the immunity provisions:
(1) a "written certification" from a qualified physician; and
(2) a valid registration card. 105 Code Mass. Regs. 725.015(C)
(2013). When the defendant received his certificate on May 29,
2013, the department had not yet implemented the procedure for
the issuance of a registration card. Therefore, as provided in
the regulation, the certificate alone was sufficient to invoke
the immunity provisions of the act. See Commonwealth v.
Canning, 471 Mass. 341, 347-348 (2015).
6
for the relief of symptoms of a "debilitating medical
condition."6
On June 17, 2013, the probation officer issued a violation
of probation notice based on the positive drug screens. The
defendant appeared with counsel on August 28, 2013, for the
surrender hearing. On the advice of counsel, the defendant
stipulated to probation violations for the use of marijuana on
April 24, May 14, May 31, and June 11, 2013, and for the use of
cocaine on June 11, 2013.7
Based on the facts asserted in the probation violation
notice and the stipulation by the defendant, the judge found the
defendant in violation of the terms of his probation and
approved the agreed-upon recommendation that the defendant
complete the level-three program at the Lawrence Community
Correction Center8 "with the added condition that no use of
6
The Commonwealth challenges the validity of this document
as a certificate for the medical use of marijuana, claiming that
it was obtained from a "now-defunct . . . 'recommendation'-
mill." We need not consider the issue based on our conclusion
that even a valid certificate would not bar the judge's
disposition on the probation violation.
7
Acknowledging that the certificate did not immunize the
use of cocaine on June 11, 2013, the defendant claimed that the
cocaine "must have been slipped into the marijuana without him
knowing."
8
The level-three program at the Lawrence Community
Correction Center requires daily reporting and other
rehabilitation and educational services to criminal offenders.
7
drugs, including marijuana, be part of his probation." The
judge summarized the recommendation regarding drug use as
follows, "Full menu, drug and alcohol free, except for
prescribed medication for back condition by a licensed
Massachusetts physician." The probation officer inquired
whether the condition would state, "including marijuana that
he's not allowed to use" and defense counsel expanded that
adding the words "including marijuana" would clarify the intent
that all legal or illegal use is prohibited. The judge agreed,
stating, "No marijuana. Okay."
During the hearing, defense counsel informed the judge that
on May 29, 2013, the defendant acquired a certificate for the
medial use of marijuana. He did not, however, offer it as a
defense to the violation or request a modification of the
conditions of probation on that ground. Instead, defense
counsel told the judge that he had reviewed the certificate and
advised the defendant that it is "not a prescription, it's a
medical recommendation . . . and it [is] not okay at this point
in time, based on the way the law is right now, . . . for him to
use marijuana under any circumstance until it's clarified or
when we're clear as to who the providers are going to be."
http://www.mass.gov/essexsheriff/facilities/community-
corrections.html [https://perma.cc/2CTQ-CUNM].
8
After being reprobated at the August, 2013, surrender
hearing and agreeing on the advice of counsel to forgo reliance
on the certificate, the defendant again tested positive for
marijuana, and he failed to comply with other probation
conditions. The probation department issued a second violation
of probation notice9 on October 7, 2013, requiring the defendant
to appear for a surrender hearing. On October 23, 2013, the
defendant appeared for a hearing on the appointment of counsel.
At this hearing, the probation officer requested that the
defendant be detained pending the final surrender hearing,
explaining that he was requesting incarceration because the
defendant "continues to miss drug tests and uses marijuana" in
"flagrant disregard for the rules of the program that he's been
sentenced to" and shows no "effort of compliance." The judge
declined the request to detain the defendant, appointed new
counsel, and after receiving information about the defendant's
background,10 inquired whether the parties could fashion an
alternative to surrender.
9
The October 7, 2013, probation violation notice alleged
the following violations: use of marijuana on September 19, 20,
23, 27, and 30, 2013; failure to report to the Lawrence
Community Correction Center on September 12, 25, and 26, 2013,
and October 2 and 3, 2013; and failure to report for drug tests
on September 17 and 26, 2013.
10
Defense counsel asserted that the defendant came from an
"intact family," was "currently going to a high school to get
9
As at the first surrender hearing, newly appointed counsel
made no attempt to leverage the certificate on the defendant's
behalf. He agreed to a preliminary stipulation to five
violations for use of marijuana, two violations for failure to
report for a drug test, and five violations for failing to
report to the Lawrence Community Correction Center occurring in
September and October, 2013. In his argument to the court, he
explained that he had discussed the medical marijuana
certificate with the defendant and informed him that it would
not be a defense to the probation violation.
The judge agreed with counsel's analysis11 and then offered
the defendant two options: (1) the judge would continue
sentencing for four weeks and if the defendant did not "fully
comply with every single requirement of the Level Three
Program," including that he "stop using any type of drug,
including marijuana," and "show up for every single drug test,"
he would receive the full State prison sentence for armed
robbery and assault; or (2) the defendant could "go in for a
week, and then to the county jail, and then try to have
additional terms of probation after that." The defendant
his diploma" and was receiving percentages of from seventy to
eighty in certain classes.
11
The judge emphatically stated his agreement, noting that
even if "[the defendant] has Barack Obama's permission to toke
at will, it doesn't matter."
10
acknowledged his understanding of the options and that the
prohibition of marijuana use included medical and nonmedical
marijuana use and, through counsel, expressed his desire to
accept the first option, which would allow him to avoid the
short period of incarceration. Accordingly, the judge continued
the hearing for four weeks.
On November 19, 2013, the probation department issued a
third violation of probation notice for the defendant's
appearance on November 20, 2013. This notice followed a
positive marijuana test on November 14 and a failure to report
for a drug test on November 19. At the final surrender hearing
on December 11, 2013, before the same judge who had presided at
the October 23, 2013, hearing, the probation officer informed
the judge that the defendant failed to appear at the November
20, 2013, hearing. Defense counsel reiterated his stipulation
to the violations and made no further reference to the
certificate. The judge terminated the probation and sentenced
the defendant to a term of not less than two years, and no more
than four years in State prison. This disposition is the
subject of the defendant's appeal.
Discussion. 1. Immunity. The defendant argues that the
judge erred by imposing a sentence for the probation violation
based on the medical use of marijuana because, as a qualified
patient, the act granted him immunity from punishment for that
11
conduct.12 More specifically, the defendant contends that the
judge was prohibited by the act from sentencing for probation
violations relating to marijuana because -- prior to the
sentencing hearing -- he had obtained a certificate for the
medical use of marijuana. We disagree. The judge was not bound
by any such restraint where, prior to acquiring the certificate,
the defendant agreed to conditions of probation prohibiting the
use of marijuana and failed to secure a modification of that
condition based on his later acquired qualifying patient status.
Nor was the defendant a qualifying patient entitled to immunity
under the act when he violated the conditions of his probation
by using marijuana prior to acquiring the certificate.13 We
conclude also that even if the defendant were entitled to
immunity for the medical use of marijuana, the judge could
12
The stated purpose of the act is as follows: "The
citizens of Massachusetts intend that there should be no
punishment under state law for qualifying patients, physicians
and health care professionals, personal caregivers for patients,
or medical marijuana treatment center agents for the medical use
of marijuana, as defined herein." St. 2012, c. 369, § 1. The
act expressly authorizes certain conduct relating to marijuana
that was previously criminalized. Canning, 471 Mass. at 349.
13
Because the defendant was not a qualifying patient at the
relevant time for the purposes of the act, we do not reach the
broader question whether the medical marijuana law limits a
judge's authority to prohibit the use of medical marijuana as a
condition of probation where the defendant objects to this
condition.
12
properly sentence the defendant for violations independent of
the use of marijuana.
The analysis of the defendant's right to use medical
marijuana without adverse legal consequences to his probationary
status begins with the language of the act, which provides in
relevant part as follows: "Any person meeting the requirements
under this law shall not be penalized under Massachusetts law in
any manner, or denied any right or privilege, for such actions."
St. 2012, c. 369, § 4. More specifically, with regard to the
use of medical marijuana, the act further provides, subject only
to certain conditions not relevant in this case, that "[a]
qualifying patient . . . shall not be subject to arrest or
prosecution, or civil penalty, for the medical use of medical
marijuana." Id. A "[q]ualifying patient" is further defined as
"a person who has been diagnosed by a licensed physician as
having a debilitating medical condition." St. 2012, c. 369,
§ 2 (K). We assume without deciding that the defendant was a
"qualifying patient" under the act when he acquired the
certificate on May 29, 2013.14 What we must determine is whether
his status as a qualifying patient as of that date immunizes his
14
The regulations adopted on May 8, 2013, require that the
certificate "shall be issued in a form and manner determined by
the [d]epartment." 105 Code Mass. Regs. 725.010(N) (2013).
However, it does not appear that the department had further
specified the "form" on May 29, 2013, when the defendant
acquired his certificate.
13
use of marijuana in violation of a condition of probation
imposed before he became a qualifying patient. It does not.
As a threshold matter, the defendant does not dispute that
he violated the conditions of his probation by testing positive
for marijuana before he received the certificate. Bypassing the
implications of this nonimmunized use of marijuana, the
defendant argues that the issuance of the certificate prohibits
any punishment for the medical use of marijuana at any time
thereafter. We reject this argument, as it overlooks the
defendant's waiver of his right to use marijuana during the plea
hearing and the inherent authority of the court to impose a
prison sentence for a violation of that condition. See
Commonwealth v. Durling, 407 Mass. 108, 112 (1990), quoting
Rubera v. Commonwealth, 371 Mass. 177, 180-181 (1976) ("Any
conduct by a person on probation which constitutes a violation
of any of the conditions of his probation may form the basis for
the revocation of that probation").
In agreeing to abide by the condition of no marijuana use,
the defendant explicitly waived his right not to be prosecuted
for the use or possession of marijuana,15 and he agreed to be
subject to punishment for noncompliance. And, consistent with
the court's inherent authority to enforce the conditions of
15
Under G. L. c. 94C, § 32L, a person may possess "one
ounce or less" of marijuana without criminal consequences.
14
probation, going forward, the court could impose appropriate
sanctions for noncompliance. See Durling, 407 Mass. at 111-112,
citing McHoul v. Commonwealth, 365 Mass. 465, 469-470 (1974)
("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").
Because the immunity under the act can only apply once a person
is designated a qualifying patient, it may not be invoked to
grant that protection at an earlier time. The plain language of
the act contemplates a restraint on punishment, and necessarily
applies only in circumstances where a person already has
attained the status of a qualifying patient. See St. 2012,
c. 369, § 4 (providing protections for qualifying patients and
personal caregivers "meeting the requirements under this law").
It does not operate to relieve the defendant of obligations and
duties he undertook when he agreed to a condition of probation
prohibiting the use of marijuana before attaining the status of
qualifying patient. Thus, we discern nothing in the act to
support an interpretation that allows a defendant in such
circumstances merely to acquire a certificate for the medical
use of marijuana and, thereby, to vitiate the court's inherent
authority to punish the violation of a preexisting condition of
probation.
15
Interpreting the act to require a nexus between qualifying
patient status and the timing of the particular punishment
serves important policy interests as well. The prospective
focus of the act avoids a wholesale disruption of dispositions
in criminal cases as would occur if a probationer could acquire
a certificate and demand the retraction of a prohibition on the
use of marijuana. Likewise, the prospective application of the
immunity provision preserves the court's authority to fashion
appropriate dispositions for public safety in criminal cases
without the threat of a future limitation on the prohibition of
marijuana use.
Last, we view with disfavor a defendant's agreement to
refrain from the use of marijuana in exchange for probation on a
life felony and his later attempt to repudiate that agreement by
acquiring a certificate for the medical use of marijuana after
he has violated the probation condition prohibiting the use of
marijuana. To be clear, we do not suggest that a defendant,
bound by conditions of probation prohibiting the use of
marijuana, may not seek the protection of the act. He or she
may do so by requesting a modification of the conditions of
probation, which would be considered in the ordinary course in
light of all the relevant circumstances. However, we take
seriously the purpose of the act as a medical breakthrough for
patients suffering from debilitating medical conditions; any
16
advantage to a criminal defendant is only incidental. In sum,
where a court has prohibited the use of marijuana as a condition
of probation prior to a defendant acquiring the status of
qualifying patient, the defendant is not entitled to immunity
under the act. He or she may, however, seek a modification of
the condition of probation to accommodate the need for the
medical use of marijuana.
2. Ineffective assistance of counsel. The defendant
argues that in failing to defend the probation violation on the
ground that the defendant's marijuana use was protected under
the act by the certificate, counsel provided constitutionally
ineffective assistance during the surrender proceedings. We
conclude counsel's performance in this respect was not
deficient, but that counsel's failure to seek modification of
the probation conditions on that ground fell "measurably below
that which might be expected from an ordinary fallible lawyer,"
Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). We conclude,
however, that counsel's lapse was not consequential. Therefore,
we reject the defendant's contention that he is entitled to a
new probation surrender hearing on this ground.
It is well settled that "a probationer is entitled to the
effective assistance of counsel at a probation violation hearing
whenever imprisonment may result." Commonwealth v. Pena, 462
Mass. 183, 188 (2012). The defendant or probationer bears the
17
burden of proving ineffectiveness by a showing that counsel's
representation was constitutionally inadequate and that the
defendant suffered prejudice. See Commonwealth v. Kolenovic,
471 Mass. 664, 673 (2015); Saferian, 366 Mass. at 96. We
consider the defendant's argument as to each required prong of
the ineffective assistance of counsel claim.
a. Counsel's performance. The defendant was represented
by two different attorneys during the proceedings, neither of
whom proffered the certificate as a defense to the asserted
violation for marijuana use or as a basis for modification of
the condition prohibiting the use of marijuana. Both attorneys
advised the defendant, and argued to the court, that the medical
marijuana certificate lacked any legal effect and that it could
not be asserted as a defense to the probation violation.
The first attorney appeared for the defendant at the
initial probation surrender hearing on August 28, 2013, during
which the probation officer urged surrender based on the
defendant's violation of the condition prohibiting the use of
all "illegal" drugs. However, the defendant had secured the
certificate on May 29, 2013, which, in accordance with the act,
theoretically could have immunized his use of marijuana after
that date. During the hearing, however, counsel stipulated to
all violations (including marijuana use before and after he
obtained the certificate) and expressly eschewed any possible
18
use of the certificate as a justification for the defendant's
violation. Counsel told the judge that the defendant "was under
the impression that he could get medical marijuana" because of
the certificate, but that he (counsel) informed the defendant
that the certificate "is not a prescription, and it [is] not
okay at this point in time, based on the way the law is right
now, . . . for him to use marijuana under any circumstance until
it's clarified or when we're clear as to who the providers are
going to be." The act contained no such provision, however, and
provided immunity to qualifying patients from "arrest or
prosecution, or civil penalty," for the medical use of marijuana
in accordance with the act. St. 2012, c. 369, § 4. With the
certificate in hand, counsel was obligated, at the very least,
to consider seeking a modification of the conditions of
probation based on the certificate.
The second attorney's conduct at the October hearing and
the December final surrender hearing was similarly lacking in
the required level of professional competence. During the
October hearing at which the judge considered alternatives to
surrender, counsel appeared to dismiss any possible
justification for the defendant's use of marijuana for medical
purposes, asserting that the defendant suffered from an
"addiction" to marijuana and believed that "this medical
marijuana thing was his be all and end all." He then added his
19
own view that "[i]t's not."16 This statement in open court
revealed, inappropriately so, a suspicion of the defendant's
motivation for the medical marijuana certificate.
At the final surrender hearing in December, 2013, the
attorney stipulated to the defendant's probation violations,
thereby declining to take any account of the medical marijuana
certificate. Here, counsel was even more openly skeptical of
the defendant's legal rights under the certificate, referring to
the defendant's "cleverness" in obtaining the certificate.
Despite the long odds of success at this stage of the
surrender proceedings, the option of a modification of the
probation remained available to the defendant, particularly
where it had not been considered previously. On this record, it
appears that counsel not only failed to assess the legal
16
Inexplicably, counsel at the October hearing appeared not
to appreciate his role as advocate for the defendant during the
hearing. For example, counsel, who had met the defendant for
the first time when he was appointed the day of the hearing,
stated to the judge that "he [the defendant] has skyrocketed
into the top ten of the most infuriating clients I've ever had
the opportunity to represent." Counsel used this reference on
several occasions during the course of the hearing. In a
similar vein, counsel agreed with the judge's suggestion that
the defendant was not a good probationer, adding that the
defendant was "a horrible probationer." Also, defense counsel
was unusually frank in reporting the content of his discussion
with the defendant regarding the certificate. He revealed to
the judge that he had asked the defendant whether he had court
permission to use marijuana in accordance with the certificate
and that the defendant had answered "no."
20
viability of the certificate as a defense to the probation
violation, but also expressly disparaged its legitimacy. Such
conduct is not acceptable as a standard for the "ordinary
fallible lawyer." Saferian, 366 Mass. at 96.
We have noted the Commonwealth's position that counsel's
decision to bypass the medical marijuana certificate was a
tactical strategy to obtain the most favorable disposition on
the surrender and that, as such, it was not "manifestly
unreasonable," Commonwealth v. Acevedo, 446 Mass. 435, 442
(2006), in light of the defendant's other unrelated violations
of the probation conditions. The point is well taken because
the judge reasonably could expect strict compliance with the
terms of straight probation on a life felony. Nonetheless, this
case presented important issues of first impression that should
not have been resolved against the defendant by counsel's
uninformed and narrow interpretation of the reach of the act.17
b. Prejudice. Although we conclude that counsel was
obligated to pursue at least a modification of the conditions of
probation to accommodate the defendant's medical marijuana
certificate, the failure to do so in the circumstances of this
case was not prejudicial. The use of marijuana was not the only
17
At the time of the hearing, no appellate court had opined
on the parameters of the act for "qualifying patients" in
criminal proceedings.
21
compliance issue for the defendant and the judge properly could
have terminated the probation on grounds unrelated to the use of
marijuana.
The defendant does not challenge the validity of the
conditions requiring him to report for drug testing and the
mandated drug program, nor does he dispute that these violations
occurred. The defendant failed to report for drug testing on
three different occasions, on September 17, 2013; September 26,
2013; and on November 19, 2013.18 Also, the defendant was found
to have used cocaine on June 11, 2013. Even if the judge had
given full effect to the medical marijuana certificate, the use
of cocaine would stand as a violation of the condition
prohibiting the use of illegal drugs. In ruling on the
defendant's motion for a new hearing on the probation surrender,
the judge specifically cited the compliance issues independent
of the marijuana use. Thus, there was no prejudice in counsel's
failure to proffer the certificate as a defense or as a basis
for modification of the conditions of probation.
18
The probation officer also alleged that the defendant
failed to report to the level-three program at the Lawrence
Community Correction Center program. It appears that the
defendant was terminated from the program sometime between the
October 23, 2013, hearing and sentencing on December 11, 2013,
because of a juvenile sex offense in Florida.
22
Conclusion. We affirm the order finding the defendant in
violation of the conditions of probation and the sentence based
on that violation.
So ordered.