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16-P-1200 Appeals Court
COMMONWEALTH vs. MARCUS M., a juvenile.
No. 16-P-1200.
Suffolk. June 6, 2017. - July 27, 2017.
Present: Green, Hanlon, & Kinder, JJ.
Practice, Criminal, Revocation of probation. Juvenile Court,
Probation.
Complaints received and sworn to in the Suffolk County
Division of the Juvenile Court Department on December 19, 2014.
A proceeding for revocation of probation was had before
Peter M. Coyne, J.
Alison R. Bancroft for the juvenile.
Julianne Campbell, Assistant District Attorney, for the
Commonwealth.
HANLON, J. After a probation violation hearing, a judge in
the Juvenile Court found that the juvenile had violated the
terms of his probation because he was charged three times with
subsequent offenses allegedly committed while he was on
probation. The judge committed the juvenile to the Department
2
of Youth Services (DYS) until his eighteenth birthday. The
juvenile now appeals, arguing that the only evidence offered on
two of the three offenses was his court activity record
information (CARI) record indicating that new complaints had
issued. While we agree with the judge that the evidence
supported a finding of violation regarding one offense on one
complaint, for which there was other evidence, judicial notice
of the CARI records, without more, was insufficient to support
finding the other two violations.
Background. The juvenile was placed on probation and his
case continued without a finding, on May 8, 2015, after he
admitted to facts sufficient to support findings of delinquency
on charges of malicious destruction of property and vandalizing
property. Ten days later, a probation officer issued a notice
of probation violation after the juvenile was arrested for
possession of a firearm, possession of ammunition, carrying a
rifle or shotgun on a public way, and assault by means of a
dangerous weapon. The probation case was continued a number of
times and, on February 10, 2016, a second notice of probation
violation was served on the juvenile as a result of other new
charges, this time, affray and disturbing of public assembly.
On March 11, 2016, a third notice of probation violation issued,
alleging a "violation of the criminal law, namely, larceny."
3
At the probation violation hearing in June, 2016, a Boston
police sergeant testified that he had responded to a call
regarding a dispute among neighbors on Blue Hill Avenue in
Boston. When he arrived, an individual told the sergeant that
"someone had a firearm and threatened [that individual]." The
sergeant and other officers spoke to all of the parties present
and then left the area; they were called back a short time
later. On his return, the sergeant saw a large group of young
males on the street run into a nearby house. He followed them
and, eventually, seized the defendant. Nearby was a backpack
and, in the backpack, were two loaded firearms. At the end of
the probation violation hearing, the judge, explicitly crediting
the sergeant's testimony, found that the juvenile had violated
the terms of his probation "by committing a new offense, namely
. . . the possession of firearm charge."
Counsel for the juvenile then inquired about the status of
the other pending probation violations and, after some
discussion, the judge added, "And as to the affray and the
disturbing of public assembly, I find that by a preponderance of
the evidence that he's in violation for that based upon the CARI
record. And as to the larceny, I find by a preponderance of the
evidence that he violated as to that as well. So it's limited -
- the violations are limited to the three new offenses."
Defense counsel objected, pointing out that, "at the hearing,
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there was no evidence submitted whatsoever on those two
particular charges. The Probation Department didn't even seek
to admit the police report." The judge noted the objection and
stated that he was "taking judicial notice of the CARI." As
noted supra, the judge then committed the juvenile to DYS until
his eighteenth birthday.
Discussion. Initially, the juvenile argued that there was
insufficient evidence to find any violation of probation.
However, he now concedes that that argument "has been rendered
moot by [his] subsequent plea of delinquency" to a reduced
charge of possession of a firearm without a firearm
identification card, in violation of G. L. c. 269, § 10(h).1 We
agree. See Commonwealth v. Joyner, 467 Mass. 176, 190 (2014),
quoting from Commonwealth v. Maggio, 414 Mass. 193, 198 (1993)
("Because it rests on a finding of guilt beyond a reasonable
doubt, however, '[a] criminal conviction . . . adequately
protects the probationer's right to due process, and may serve
as the basis for a summary [finding of a probation violation]
even though the judge lacks the factual information to make an
independent determination that a probation violation has
occurred.'").
1
The remaining counts on that complaint were dismissed at
the request of the Commonwealth.
5
In addition, both the Commonwealth and the juvenile now
agree that the judge erred in finding a violation based on the
new charges of larceny, public affray, and disturbing of public
assembly. We agree with that as well. See Commonwealth v.
Emmanuel E., 52 Mass. App. Ct. 451, 453 (2001), quoting from
Commonwealth v. Calvo, 41 Mass. App. Ct. 903, 904 (1996) ("The
mere filing of criminal charges against a probationer is not
enough to show a violation of probation . . . because it does
not give the probationer a realistic chance to confront his
accusers and meet the evidence against him").
However, citing Commonwealth v. Vargas, 475 Mass. 86, 93
(2016), the Commonwealth now contends "that error is immaterial"
because the finding of a probation violation and resulting
commitment to DYS were adequately supported by the agreed-upon
firearm violation. We are not persuaded. In Vargas, the judge
found that the defendant had violated the terms of his probation
by using marijuana and Vargas, on appeal, claimed that he was
entitled to use marijuana because he had obtained a certificate
permitting him to use marijuana for medical purposes. Id. at
89-90. The Supreme Judicial Court rejected the claim for
several reasons2 but "conclude[d] also that even if the defendant
2
Specifically, the Supreme Judicial Court rejected the
defendant's claim "that the judge [in the probation violation
hearing] was prohibited by [the medical marijuana law, St. 2012,
c. 369 (act), establishing immunity for the medical use of
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were entitled to immunity for the medical use of marijuana, the
judge could properly sentence the defendant for violations
independent of the use of marijuana." Id. at 92.
On the other hand, in Commonwealth v. Arroyo, 451 Mass.
1010, 1011 (2008), the court held that it was error to consider
conduct that occurred after the end of the defendant's
probationary period in deciding whether he had violated the
terms of his probation. While there were other violations of
probation properly established, the Arroyo court concluded
nonetheless that the case should be remanded for resentencing,
stating:
"[I]t is also true that not every violation requires
revocation. Commonwealth v. Faulkner, 418 Mass. 352,
365 n.11 (1994). 'There are two components to the
decision to revoke probation: a retrospective factual
question whether the probationer has violated a
condition of probation and a discretionary
determination by the judge whether violation of a
condition warrants revocation of probation.' Id. In
making the discretionary determination whether to
revoke the defendant's probation, the judge should not
have weighed evidence of the defendant's
postprobationary term conduct. The same also holds
marijuana], 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. . . .
[The court noted that 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." Vargas,
supra at 91-92.
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true with respect to the judge's determination of what
sentence to impose after deciding to revoke probation.
[Here], a fair reading of the sentencing transcript
indicates that, while the judge did base his
revocation and sentencing decisions in part on events
that occurred during the probationary term, . . . he
also relied on postterm conduct. In particular, the
record reflects that the postterm allegations of
assault and battery were a substantial factor in the
judge's decision to impose a State prison sentence of
from three to five years."
Ibid. The Vargas court did not cite Arroyo, or provide guidance
for distinguishing it but, after consideration, we are persuaded
that the case before us is more like Arroyo than Vargas.
In Vargas, the defendant was on probation for armed
robbery. 475 Mass. at 88. There were many probation violations
alleged; for the most part they were so-called "technical"
violations in that they did not allege new criminal conduct,
apart from the repeated illegal use of marijuana. Id. at 89.
The defendant also failed to report for drug testing and to the
office of community corrections as ordered. Id. at 90. He was
given several additional opportunities to complete probation
and, finally, at a hearing on the third notice of probation
violation, the judge terminated probation and sentenced the
defendant to incarceration. Id. at 91. The Supreme Judicial
Court affirmed, noting, "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
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medical use of marijuana after he has violated the probation
condition prohibiting the use of marijuana." Id. at 94.
Here, the juvenile received a continuance without a finding
for each of the underlying offenses, and was committed to DYS
for his first probation violation. While the nature of that
violation, that is, possession of more than one loaded firearm,
committed ten days after he was placed on probation and shortly
after an individual reported being threatened by a group of
young people with firearms, certainly would have justified the
judge's decision to revoke probation and to commit the juvenile
to DYS, we cannot be confident that his decision was not
substantially influenced by the fact that, while the probation
violation hearing was pending -- and the juvenile was released
to the custody of his mother -- he was arraigned on two
additional complaints. "In these circumstances, it is not for
an appellate court to speculate 'what action the judge would
have taken had [he] found the defendant in violation of
probation based [only] on the violation[ properly found].'
Commonwealth v. Aquino, [445 Mass. 446,] 450-451 [(2005)]. To
do so would effectively, and improperly, supplant the judge's
opportunity to exercise his discretion, on appropriate evidence,
in the first instance." Arroyo, 451 Mass. at 1011.
Accordingly, we vacate the order revoking the juvenile's
probation, and remand the case to the Juvenile Court for
9
consideration of the appropriate disposition, based on the
firearm offense that was established by the evidence presented
at the probation violation hearing.
So ordered.