Commonwealth v. Preston P., a juvenile

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SJC-12706

COMMONWEALTH vs. PRESTON P., a juvenile.

Middlesex. September 5, 2019. - January 7, 2020.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.

Delinquent Child. Practice, Criminal, Juvenile delinquency
proceeding, Probation, Revocation of probation. Juvenile
Court, Delinquent child, Probation.

Complaint received and sworn to in the Middlesex County
Division of the Juvenile Court Department on December 19, 2016.

A proceeding for revocation of probation was heard by Jay
D. Blitzman, J., a motion for reconsideration was also heard by
him, and questions of law were reported by him to the Appeals
Court.

The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.

Benjamin L. Falkner for the juvenile.
Timothy Ferriter, Assistant District Attorney, for the
Commonwealth.
Nina L. Pomponio for the probation service.
Michelle Menken, for youth advocacy division of the
Committee for Public Counsel Services & another, amici curiae,
submitted a brief.
 2

GAZIANO, J. A Juvenile Court judge may place a juvenile on

pretrial probation with the consent of the juvenile and the

Commonwealth. See Commonwealth v. Tim T., 437 Mass. 592, 596-

597 (2002). As part of pretrial probation, the juvenile agrees

to abide by certain conditions for a specified period of time.

See id. In exchange, the case is removed from the trial

calendar. See id. at 596. If the juvenile successfully

completes the probationary period, the charges are dismissed.

See id. at 597. This practice is distinct from pretrial

conditions of release, which may be supervised by the probation

service, but do not lead to dismissal or removal from the trial

calendar. See Jake J. v. Commonwealth, 433 Mass. 70, 71, 74-75

(2000); G. L. c. 276, § 87. In this case, we are asked to

determine the standard of proof and procedural requirements

necessary for the revocation of pretrial probation in the

Juvenile Court.

We conclude that, for a revocation based on a new criminal

offense, the Commonwealth must prove that there is probable

cause to believe that the juvenile committed the offense.

Probable cause may be established at a nonevidentiary hearing

based on the application for a complaint. For a revocation

based on any violation other than a new criminal offense, the

Commonwealth must prove by a preponderance of the evidence, at

an evidentiary hearing, that the juvenile violated the
 3

condition. For any revocation of a juvenile's pretrial

probation, due process requires written notice of the claimed

violation, the opportunity to be heard, and a judicial finding

that the juvenile committed the violation. The other

evidentiary principles that govern postdisposition probation

revocation hearings, see Commonwealth v. Durling, 407 Mass. 108,

113, 118 (1990), do not apply.1

Background. The juvenile was charged with assault and

battery by means of a dangerous weapon for allegedly "whipping"

a remote control at another juvenile. With the consent of the

juvenile and the Commonwealth, a Juvenile Court judge

subsequently placed the juvenile on pretrial probation in

anticipation of the case being dismissed after a specified

probationary period.2 The pretrial probation agreement included

the condition that the juvenile obey all local, State, and

Federal laws. Before the probationary period ended, the

probation service served the juvenile with a notice of pretrial

1 We acknowledge the amicus brief submitted by the youth
advocacy division of the Committee for Public Counsel Services
and the Massachusetts Association of Criminal Defense Lawyers.

2 The juvenile was placed on pretrial probation twice during
the duration of the proceedings in this case. The Juvenile
Court judge terminated his pretrial probation once, and
subsequently placed the juvenile on pretrial probation for a
second time. The alleged violation in this appeal occurred
during the second period of pretrial probation.
 4

probation violation alleging new charges for tagging and

defacing property.3 At a hearing on the Commonwealth's motion to

revoke pretrial probation, the judge found probable cause that

the juvenile had committed the offense of tagging. Based on

this finding, the judge revoked the juvenile's pretrial

probation and put the case back on the trial calendar.

The juvenile filed a motion to reconsider the revocation;

he argued that the judge's application of the probable cause

standard violated the juvenile's due process rights. The

juvenile maintained that a violation must be proved by a

preponderance of the evidence, and that the hearing must comply

with the evidentiary requirements of Durling, 407 Mass. at 113,

118. The judge heard argument on these questions of law in a

series of nonevidentiary hearings. He then allowed the motion

to reconsider, set a date for a revocation hearing, and stayed

the matter pending the resolution of three questions that he

reported to the Appeals Court. We transferred the case to this

court on our own motion.

Discussion. The judge reported the following questions:

"1. Where a juvenile has been placed on pretrial probation
under [G. L. c. 276, § 87,] and Commonwealth v. Tim T., 437
Mass. 592 (2002)[,] in contemplation of the Commonwealth's
dismissal of the case upon the juvenile's successful
completion, does [G. L. c. 276, § 58B,] govern the

The notice of violation also contained an asserted
3

noncriminal violation. The judge did not make findings on this
additional violation, and it is not at issue before us.
 5

revocation of said pretrial probation?

"2. Where the Commonwealth seeks revocation of pretrial
probation in contemplation of dismissal, pursuant to [G. L.
c. 276, § 87,] and Commonwealth v. Tim T., 437 Mass. 592
(2002), must a violation of any condition be proven by a
preponderance of the evidence?

"3. Do the evidentiary principles in Commonwealth v.
Durling, [407] Mass. 108, 111 (1990)[,] apply to such a
hearing?"

See Mass. R. Crim. P. 34, as amended, 442 Mass. 1501 (2004).

We answer the first question, "No." Based on the

incongruence between the language of G. L. c. 276, § 58B, and

pretrial probation, we conclude that the statute does not govern

the revocation of a juvenile's pretrial probation. We answer

the second question, "No," in part. For a violation based on a

new criminal offense, a judicial finding of probable cause

satisfies the requirements of due process. For a violation of

any other condition, however, due process requires proof by a

preponderance of the evidence. We also answer the third

question, "No," in part. For revocation of a juvenile's

pretrial probation, due process necessitates notice of the

alleged violation, the opportunity to be heard, and a judicial

finding that the violation occurred. Violations based on new

criminal offenses may be established at a nonevidentiary hearing

based on the application for a complaint, while other violations

require an evidentiary hearing. The additional evidentiary

principles from Durling, 407 Mass. at 113, 118, are not
 6

requisites in the context of pretrial probation.

1. Terminology. A Juvenile Court judge may place a

juvenile on pretrial probation based on the statutory

authorization of G. L. c. 276, § 87.4 See Tim T., 437 Mass.

at 596-597. General Laws c. 276, § 87, also establishes

statutory authorization for pretrial conditions of release,

Jake J., 433 Mass. at 71, which are distinct from pretrial

probation. Notwithstanding this distinction, our jurisprudence

at times has used the term "pretrial probation" in discussing

pretrial conditions of release. See id. at 75 ("Juvenile Court

judge had authority to place the juvenile on pretrial probation

with conditions for his release on bail"). We take this

opportunity to delineate the differences between the two.5

a. Pretrial probation. With the consent of the juvenile

4 General Laws c. 276, § 87, states, in relevant part,

"The . . . [J]uvenile [C]ourt may place on probation in the
care of its probation officer any [juvenile] before it
charged with an offense or a crime for such time and upon
such conditions as it deems proper, with the [juvenile's]
consent, before trial and before a plea of guilty . . . ."

5 These two practices also are distinct from pretrial
diversion, see G. L. c. 119, § 54A; drug rehabilitation
diversion, see G. L. c. 111E, § 10; and continuances without a
finding, see G. L. c. 278, § 18. Nothing in this opinion should
be taken to govern statutory diversion programs or continuances
without a finding. Nor should this opinion be taken to govern
any agreements to dismiss cases, made by the Commonwealth and a
juvenile with the approval of a judge, that do not involve
probation.
 7

and the Commonwealth, a judge may place a juvenile on pretrial

probation pursuant to G. L. c. 276, § 87. See Tim T., 437 Mass.

at 597. A pretrial probation agreement specifies conditions

with which the juvenile must comply for a specified period of

time. See id. at 596-597. When a juvenile is placed on

pretrial probation, the case is removed from the trial calendar.

See id. at 596. If the juvenile successfully completes the

probationary period, the charges are dismissed. See id. at 597.

A judge may not order a juvenile detained based on a violation

of pretrial probation, because "the only recourse [is] to return

the case to the trial calendar." See Commonwealth v. Rodriguez,

441 Mass. 1002, 1003 (2004), quoting Tim T., supra at 596.

General Laws c. 276, § 87, does not provide a procedure for the

revocation of pretrial probation. As we discuss, neither does

any other statute.

b. Pretrial conditions of release. General Laws c. 276,

§ 87, also allows for a distinct type of supervision known as

pretrial conditions of release. See Jake J., 433 Mass. at 71.

The confusion between pretrial probation and pretrial conditions

of release is understandable. Both occur prior to trial, and

both involve supervision by the probation service. Nonetheless,

they are distinct procedures that serve different functions.

As with pretrial probation, a defendant must consent to the

conditions of pretrial release, but by contrast to pretrial
 8

probation, the Commonwealth's consent is not required. Compare

Jake J., 433 Mass. at 71, with Tim T., 437 Mass. at 594, 597.

Unlike pretrial probation, pretrial conditions of release do not

remove the case from the trial calendar or lead to a future

dismissal. Compare Tim T., supra at 596-597, with Jake J.,

supra. Further, and distinct from a violation of a condition of

pretrial probation, a violation of pretrial conditions of

release may lead to detention. Compare Tim T., supra at 596,

with G. L. c. 276, § 58B (authorizing detention of up to ninety

days). Finally, the adjudication of violations of pretrial

conditions of release, but not pretrial probation, is governed

by statute. See G. L. c. 276, § 58B, and discussion, infra.

While the terms at times have been used interchangeably in

earlier jurisprudence, for clarity, we will not use the term

"pretrial probation" to refer to pretrial conditions of release.

A Juvenile Court judge also may impose pretrial conditions

of release without supervision by the probation service. See

G. L. c. 276, § 58. Although we held in Commonwealth v. Dodge,

428 Mass. 860, 863-866 (1999), that judges did not have

statutory or inherent authority to impose conditions of release

under G. L. c. 276, § 58, the Legislature amended the statute in

2006 and 2014, thereby allowing for the imposition of certain

conditions of release. See G. L. c. 276, § 58, as amended

through St. 2006, c. 48, § 8 (juvenile "may be ordered to abide
 9

by specified restrictions on personal associations or conduct

including, but not limited to, avoiding all contact with an

alleged victim of the crime and any potential witness or

witnesses who may testify concerning the offense, as a condition

of release"); G. L. c. 276, § 58, as amended through St. 2014,

c. 260, § 32 (allowing in cases involving domestic violence or

abuse for "conditions on a person's release in order to ensure

the appearance of the person before the court and the safety of

the alleged victim, any other individual or the community").

Here, our discussion of conditions of release refers only to

conditions imposed which include supervision by the probation

service, pursuant to G. L. c. 276, § 87, and not those imposed

without supervision by the probation service, pursuant to G. L.

c. 276, § 58.

2. Statutory landscape. a. Whether G. L. c. 276, § 58B,

governs revocation of pretrial probation. Pretrial probation

and pretrial conditions of release are both authorized by G. L.

c. 276, § 87, but the statute does not contain procedures for

addressing violations of either. General Laws c. 276, § 58B,

provides, in part,

"A person who has been released after a hearing pursuant to
[§§] 42A, 58, 58A or 87 and who has violated a condition of
his release, shall be subject to a revocation of release
and an order of detention. The judicial officer shall
enter an order of revocation and detention if after a
hearing the judicial officer finds (1) that there is
probable cause to believe that the person has committed a
 10

[F]ederal or [S]tate crime while on release, or clear and
convincing evidence that the person has violated any other
condition of release; and (2) the judicial officer finds
that there are no conditions of release that will
reasonably assure the person will not pose a danger to the
safety of any other person or the community; or the person
is unlikely to abide by any condition or combination of
conditions of release."

The statutory language thus makes clear that G. L. c. 276,

§ 58B, governs violations of pretrial conditions of release.

Three incongruences between pretrial probation and the language

of G. L. c. 276, § 58B, however, lead us to conclude that, in

referencing G. L. c. 276, § 87, the Legislature intended to

encompass solely pretrial conditions of release, and not

pretrial probation.

First, G. L. c. 276, § 58B, applies only when a juvenile

"has been released after a hearing." Pretrial probation, on the

other hand, is not a mechanism by which a juvenile is released

from confinement. Rather, pretrial probation is a court-

enforced agreement regarding probation conditions and an

anticipated future dismissal that is distinct from any terms of

release. See Tim T., 437 Mass. at 597. For example, a juvenile

might be released on personal recognizance at arraignment, and

months later, a judge could impose pretrial probation. In that

situation, pretrial probation clearly is not the method by which

the individual is released.

Second, a juvenile who is found in violation of conditions
 11

of release pursuant to G. L. c. 276, § 58B, "shall be subject to

a revocation of release and an order of detention." The only

recourse for a violation of pretrial probation, by contrast, is

a return to the trial calendar, not detention. See Rodriguez,

441 Mass. at 1003, citing Tim T., 437 Mass. at 596.

Third, revocations under G. L. c. 276, § 58B, require a

judge to find that "there are no conditions of release that will

reasonably assure the person will not pose a danger to the

safety of any other person or the community . . . [or that] the

person is unlikely to abide by any condition or combination of

conditions of release." Such findings are not relevant in the

context of a revocation of pretrial probation. If the

Commonwealth moves to revoke pretrial probation, and the judge

finds that the juvenile has violated the conditions of pretrial

probation, the judge must revoke. See Tim T., 437 Mass. at 596-

597. No finding of dangerousness or future unlikeliness to

abide by conditions of release is necessary. See id.

Taken together, these three incongruences demonstrate that

G. L. c. 276, § 58B, does not govern the revocation of pretrial

probation.

b. Statutory guidance. Because the Legislature has not

prescribed a method in G. L. c. 276, § 87, for the revocation of

pretrial probation, we look to other statutes for guidance. In

Jake J., 433 Mass. at 77-79, we held that courts could look to
 12

statutes that were "especially relevant" when filling in a

similar statutory gap.6 Here, we conclude that G. L. c. 119,

§ 54A, the juvenile pretrial diversion statute, is particularly

relevant and therefore can provide needed guidance.

Pretrial diversion is particularly relevant because it is

so similar to pretrial probation. Both pretrial diversion and

pretrial probation involve a stay or continuance of the

6 At the time of Jake J. v. Commonwealth, 433 Mass. 70, 71,
77-79 (2000), the Legislature had allowed courts to set pretrial
conditions of release, but had not provided an enforcement
mechanism to handle violations of those conditions. We
concluded that courts could look to G. L. c. 276, § 58B, for
procedures to use in addressing violations of pretrial
conditions. Subsequent to our decision in Jake J., supra, the
Legislature amended G. L. c. 276, § 58B, to apply to violations
of pretrial conditions of release that were imposed pursuant to
G. L. c. 276, § 87. See G. L. c. 276, § 58B, as amended through
St. 2014, c. 260, § 39.

In Jake J., 433 Mass. at 77-78, we also observed that it
would be irrational for the Legislature to give courts the
authority to set pretrial conditions of release without also
providing the authority "to enforce those conditions or sanction
their violation." Therefore, we concluded that courts had
inherent authority to revoke a juvenile's bail for violations of
pretrial conditions of release. See id. See also Brach v.
Chief Justice of the Dist. Court Dep't, 386 Mass. 528, 535
(1982), quoting Sheriff of Middlesex County v. Commissioner of
Correction, 383 Mass. 631, 636 (1981) (courts may exercise their
inherent power when it is "essential to the function of the
judicial department, to the maintenance of its authority, or to
its capacity to decide cases"). The same rationale applies with
respect to pretrial probation. Through G. L. c. 276, § 87, the
Legislature allowed pretrial probation without creating a method
for its revocation. Just as with pretrial conditions of
release, because G. L. c. 276, § 87, allows for pretrial
probation, courts have inherent authority to revoke pretrial
probation despite the absence of an explicit statutory
authorization.
 13

proceedings. See G. L. c. 119, § 54A (c) (1)

("proceedings . . . shall be stayed for [ninety] days"); Tim T.,

437 Mass. at 597 ("judge may . . . continue the case for a

probationary period"). Both involve supervision by the

probation service. See G. L. c. 119, § 54A (f) (1) ("probation

officer or the program director shall . . . [indicate]

successful completion of diversion . . . [or recommend]

extension"); Tim T., supra ("judge may place a defendant on

pretrial probation"). Both lead to the dismissal of the case

upon successful completion. See G. L. c. 119, § 54A (f) (2);

Tim T., supra. In both types of proceedings, the only recourse

for a violation is to return the case to the trial calendar.

See G. L. c. 119, § 54A (e); Rodriguez, 441 Mass. at 1003,

quoting Tim T., supra at 596.

The pretrial diversion statute identifies probable cause as

the standard of proof for violations based on new criminal

offenses. See G. L. c. 119, § 54A (e). Therefore, we conclude

that the standard of probable cause should apply to revocations

of pretrial probation based on new criminal offenses. As

discussed infra, this standard complies with the mandates of due

process. General Laws c. 119, § 54A, however, does not contain

a standard of proof for noncriminal violations. Without

statutory guidance on this point, we turn to principles of due

process to determine the required standard of proof for such
 14

violations.

3. Procedural due process. The doctrine of procedural due

process mandates that deprivations of life, liberty, or property

be "implemented in a fair manner." Brangan v. Commonwealth, 477

Mass. 691, 703 (2017), citing Mathews v. Eldridge, 424 U.S. 319,

335 (1976).7 Due process "is a flexible concept . . . [that]

depend[s] on the circumstances of each case." Durling, 407

Mass. at 113-114. To determine the constitutionality of the

procedures at issue, we apply the test discussed in Mathews,

supra at 334-335, which balances "the private interests

affected, the risk of erroneous deprivation, the probable value

of additional or substitute safeguards, and the governmental

interests involved" (citation omitted). See Noe, Sex Offender

Registry Bd. No. 5340 v. Sex Offender Registry Bd., 480 Mass.

195, 202 (2018) (Noe).

In Durling, 407 Mass. at 113, we concluded that the due

process clause of the Fourteenth Amendment to the United States

Constitution required the following procedural protections at

probation revocation hearings:

"(a) written notice of the claimed violations of [probation
or] parole; (b) disclosure to the [probationer or] parolee
of the evidence against him; (c) opportunity to be heard in

7 As the parties do not make any argument regarding
substantive due process, see generally Paquette v. Commonwealth,
440 Mass. 121, 124-125 (2003), cert. denied, 540 U.S. 1150
(2004) (discussing substantive due process), we do not reach the
issue.
 15

person and to present witnesses and documentary evidence;
(d) the right to confront and cross-examine adverse
witnesses (unless the hearing officer specifically finds
good cause for not allowing confrontation); (e) a neutral
and detached hearing body such as a traditional parole
board, members of which need not be judicial officers or
lawyers; and (f) a written statement by the factfinders as
to the evidence relied on and reasons for revoking
[probation or] parole."

Id., quoting Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973). We

observed that "[u]nsubstantiated and unreliable hearsay

cannot . . . be the entire basis of a probation revocation."

Durling, supra at 118. Subsequent to our decision in Durling,

supra, we further determined that probation violations must be

proved by a preponderance of the evidence. See Commonwealth v.

Holmgren, 421 Mass. 224, 226 (1995), citing Commonwealth v.

Maggio, 414 Mass. 193, 198 (1993).

With these standards in mind, we undertake the analysis set

forth in Mathews to determine whether these requirements also

should apply to pretrial probation revocation hearings. See

Mathews, 424 U.S. at 334-335. The threshold inquiry under

Mathews is whether the revocation of pretrial probation

constitutes a deprivation of life, liberty, or property. See

id. at 332; Aime v. Commonwealth, 414 Mass. 667, 674–675 (1993).

Here, when the Commonwealth promised to dismiss the case upon

successful completion of pretrial probation, the juvenile gained

an interest in maintaining the benefit of that agreement. Cf.

Perry v. Sindermann, 408 U.S. 593, 601 (1972) ("mutually
 16

explicit understandings" can create due process interests that

did not exist previously). If that benefit is revoked, the

juvenile is re-exposed to a delinquency prosecution, which can

result in incarceration. See G. L. c. 119, § 58. Therefore, a

liberty interest is at stake, and we must balance the factors

set forth in Mathews, supra, to determine the process that is

due. See Querubin v. Commonwealth, 440 Mass. 108, 112 (2003),

citing Commonwealth v. Bruno, 432 Mass. 489, 503 (2000)

("Freedom from physical restraint is a fundamental right").

a. Private interests. A juvenile clearly has a

substantial interest in avoiding incarceration. See In re

Gault, 387 U.S. 1, 36 (1967) (noting severity of incarceration

in juvenile detention home); Querubin, 440 Mass. at 112.

Although revocation does not lead directly to incarceration,

placing the case back on the trial calendar allows for the

possibility of a delinquency finding and commitment to a locked

facility of the Department of Youth Services. See G. L. c. 119,

§ 58 (outlining sentencing tools available in Juvenile Court).

Even if the juvenile were never incarcerated, a delinquency

proceeding exposes the child to the "stigma of being perceived

to be a criminal." See Commonwealth v. Newton N., 478 Mass.

747, 755 (2018), quoting Commonwealth v. Humberto H., 466 Mass.

562, 576 (2013); Commonwealth v. Hanson H., 464 Mass. 807, 816

(2013) ("avoidance of attaching the stigma of a criminal to the
 17

child is of great importance" [citation omitted]); Commonwealth

v. Magnus M., 461 Mass. 459, 467 (2012) (noting "stigma and

collateral consequences of a delinquency adjudication").

A delinquency complaint, with or without a finding of

delinquency, also can have harmful collateral consequences for a

juvenile. Once a delinquency case is arraigned, "the juvenile's

name and delinquency charge become part of the juvenile's

permanent [court activity record information (CARI)]." Newton

N., 478 Mass. at 755, quoting Humberto H., 466 Mass. at 572. A

CARI record is "accessible to the justices and probation

officers of the courts, to the police commissioner for the city

of Boston, to all chiefs of police and city marshals, and to

such departments of the [S]tate and local governments as the

commissioner [of probation] may determine." Humberto H., supra

at 572–573, quoting G. L. c. 276, § 100. Even a sealed record

"may . . . be made available to a judge 'for the purpose of

consideration in imposing sentence.'" Humberto H., supra at

573, quoting G. L. c. 276, § 100B.8 "'[P]rior records or lack

8 Additionally, juvenile arrest and adjudication records can
be accessed by the Department of Children and Families, G. L.
c. 6, § 172B; specific agencies that establish, modify, or
enforce child support payments, G. L. c. 6, § 172D; the
Department of Early Education and Care, G. L. c. 6, § 172F;
children's camps, G. L. c. 6, § 172G; and other children's
programs, G. L. c. 6, § 172H. Certain delinquency adjudications
for drug trafficking result in driver's license suspensions.
G. L. c. 90, § 22 1/2. See G. L. c. 94C, § 32E. If a juvenile
 18

thereof may be significant in the initial decision' whether to

charge a juvenile with a crime." Humberto H., supra, quoting

Police Comm'r of Boston v. Municipal Court of the Dorchester

Dist., 374 Mass. 640, 656 n.10 (1978). Moreover, juvenile

adjudications can be predicate offenses for sentencing

enhancements. See Commonwealth v. Foreman, 63 Mass. App. Ct.

801, 802 (2005). Therefore, a juvenile's interest in

maintaining the benefit of the pretrial probation agreement is

significant.

Nonetheless, the juvenile's liberty interest here is less

than that in a postdisposition probation revocation hearing,

where a juvenile faces immediate incarceration. See Juvenile

Court Standing Order 1–17(VIII)(e), (f) (2017). As stated, the

only direct recourse for a violation of pretrial probation is

return to the trial calendar. See Tim T., 437 Mass. at 596.

Although the stigma and collateral consequences associated with

a delinquency adjudication are detrimental to the juvenile, many

of those consequences attached when the initial charges were

is adjudicated delinquent on a felony charge, and a school
believes that the presence of that juvenile in the school would
have a "substantial detrimental effect on the general welfare of
the school," the school may expel the juvenile. See G. L.
c. 71, § 37H 1/2. Any juvenile who is "adjudicated a youthful
offender [for] an offense that would be punishable by
imprisonment in the [S]tate prison if committed by an adult"
must submit a deoxyribonucleic acid sample to the probation
service. G. L. c. 22E, § 3.
 19

brought, and only increase to a limited degree upon the

revocation of pretrial probation. Therefore, revocation

implicates a lesser private interest in the pretrial context

than in the postdisposition context.

b. Erroneous deprivation. We next examine "the risk of an

erroneous deprivation of [these private interests] through the

procedures used, and the probable value, if any, of additional

or substitute procedural safeguards." See Noe, 480 Mass.

at 203, quoting Mathews, 424 U.S. at 334-335. In the context of

postdisposition probation revocation, a probationer has no

remaining procedural safeguards after the revocation process.

If a judge revokes postdisposition probation, the judge may

sentence the probationer immediately. See Juvenile Court

Standing Order 1–17(VIII)(e), (f).

This risk stands in sharp contrast to the pretrial

probation revocation setting. As discussed supra, the

resumption of a prosecution can have detrimental effects on the

juvenile, apart from any potential later finding of delinquency.

The most significant interests at stake for the juvenile,

however, are the avoidance of a delinquency finding and the

possible incarceration that could follow. Those interests are

protected by the full array of trial rights, even if a judge

revokes pretrial probation. Therefore, the risk of erroneous

deprivation is much lower in the pretrial probation context, and
 20

the probable value of additional safeguards is reduced.

c. Government interests. The government's interests in

the pretrial probation context are quite similar to those in the

postdisposition probation revocation context. In both contexts,

the government has an interest in achieving an "efficient and

economic administration of its affairs" (citation omitted).

Querubin, 440 Mass. at 117. See Durling, 407 Mass. at 116

("Commonwealth has an interest in expeditiously dealing with

[probation violations]"). The application of the Durling

procedures could frustrate this interest by delaying revocation

proceedings. See Commonwealth v. Pena, 462 Mass. 183, 185 & n.3

(2012) (thirteen months between initial violation notice and

revocation hearing); Durling, supra at 110 (five months between

violation notice and revocation hearing).

The government may have an even greater temporal interest

in the pretrial context because a lengthy revocation process

could lead to the Commonwealth prosecuting "a stale case, with

all the difficulties that plague such a delayed trial --

disintegrating evidence, fading memories, inability to locate

crucial witnesses." See Commonwealth v. Powell, 453 Mass. 320,

327 (2009), quoting Tim T., 437 Mass. at 596. This concern does

not exist in the postdisposition probation context, where the

underlying charges already have been adjudicated.

In addition, the government has an interest in ensuring
 21

compliance with the lawful orders of its courts. See Paquette

v. Commonwealth, 440 Mass. 121, 129 (2003), cert. denied, 540

U.S. 1150 (2004). Application of the postdisposition

requirements could result in fewer revocations, which might

weaken incentives for compliance with pretrial conditions of

probation. On the other hand, the government also has an

interest in ensuring a "reliable, accurate evaluation of whether

the probationer indeed violated the conditions of his [or her]

probation." See Durling, 407 Mass. at 116. Overall, the

government interests in the pretrial probation context are

similar to those in the postdisposition probation context.

d. Balancing. The balance of the interests in the

pretrial probation context is quite different from those in the

postdisposition context. Avoiding incarceration, the foremost

private interest in each context, is only indirectly at stake in

the context of pretrial probation. The risk of erroneous

deprivation also is lower in the pretrial context, as the

juvenile retains all trial rights. As stated, the government

interest is similar in the two contexts. Therefore, balancing

all these interests, the full procedural requirements set forth

in Durling, 407 Mass. at 113, 118, are not required.

The juvenile, however, retains certain procedural due

process rights. "An essential principle of due process is that

a deprivation of life, liberty, or property 'be preceded by
 22

notice and opportunity for hearing appropriate to the nature of

the case.'" Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532,

542 (1985), quoting Mullane v. Central Hanover Bank & Trust Co.,

339 U.S. 306, 313 (1950). Given the juvenile's substantial

interest in maintaining the benefit of the pretrial probation

agreement, the juvenile must receive written notice of the

alleged violations and an opportunity to contest those

allegations. The type of hearing and the standard of proof,

however, depend on the type of violation.

We derived the probable cause standard of proof for

violations based on new criminal offenses from G. L. c. 119,

§ 54A, as discussed supra. Probable cause generally can be

established based on the "four corners" of the application for a

complaint, without an evidentiary hearing. See Newton N., 478

Mass. at 751, quoting Humberto H., 466 Mass. at 565 (motion to

dismiss for lack of probable cause is based on "four corners of

the complaint application"). See also Commonwealth v. Orbin O.,

478 Mass. 759, 762 (2018). To determine whether probable cause

and nonevidentiary hearings comply with due process here, we

compare the revocation of pretrial probation with predisposition

proceedings that utilize those procedures. Probable cause is

the standard of proof constitutionally required for arrests,

Gerstein v. Pugh, 420 U.S. 103, 111 (1975), and delinquency

complaints, Humberto H., supra at 565-566. Nonevidentiary
 23

proceedings, without the right to confrontation, are

constitutionally sufficient in bail hearings, Querubin, 440

Mass. at 118; motions to dismiss for lack of probable cause,

Humberto H., supra at 565; and motions for continuances prior to

dangerousness hearings, Commonwealth v. Lester L., 445 Mass.

250, 251 (2005).

Based on the balancing test set forth in Mathews, 424 U.S.

at 334-335, those predisposition proceedings require at least as

much procedural protection as does a proceeding for the

revocation of pretrial probation. Arrests, delinquency

complaints, and motions for continuances of dangerousness

hearings all can lead to immediate incarceration. See Gerstein,

420 U.S. at 111 (arrest); G. L. c. 276, § 58 (delinquency

complaint can result in juvenile being held on bail); G. L.

c. 276, § 58A (4) (continuance of dangerousness hearing).

Pretrial probation involves a lesser private interest because it

cannot result directly in immediate incarceration. See

Rodriguez, 441 Mass. at 1003, citing Tim T., 437 Mass. at 596.

Some of those predisposition proceedings also involve greater

government interests than are present in the pretrial probation

context. For example, continuances of dangerousness hearings

involve the government's interest in preventing dangerous

persons from committing acts of violence. See G. L. c. 276,

§ 58A (4). But the common thread in all these contexts is that
 24

trial rights remain intact, providing a safeguard against more

serious erroneous deprivations. We therefore conclude that the

revocation of a juvenile's pretrial probation, without an

evidentiary hearing, based on probable cause that a new criminal

offense was committed, complies with due process.

The issuance of a complaint, of course, does not allow the

Commonwealth unilaterally to revoke a juvenile's pretrial

probation. The imposition of pretrial probation is a court

order that can be revoked only by the judge who is considering

the revocation. Cf. Commonwealth v. MacDonald, 50 Mass. App.

Ct. 220, 223 n.8 (2000), S.C., 435 Mass. 1005 (2001) (noting

that probation term negotiated by parties as part of plea

agreement is "independently enforceable as an order of the

court").9 In order to revoke pretrial probation based on a new

offense, the judge must make an independent finding of probable

cause.10

9 We note as well that the Commonwealth clearly is not
required to bring a motion to revoke pretrial probation whenever
a new delinquency complaint is issued. The Commonwealth can use
its executive discretion to allow pretrial probation to
continue, notwithstanding the new complaint.

10In a revocation hearing based on a new delinquency
complaint, the subject of debate will be whether the application
for the complaint establishes probable cause. This is the same
subject matter as a potential motion to dismiss the new
complaint for lack of probable cause. See Commonwealth v.
Humberto H., 466 Mass. 562, 564-565 (2013) (juvenile can bring
motion to dismiss complaint for lack of probable cause).
 25

The juvenile in this case argues that he was not given

sufficient notice that his pretrial probation could be

terminated based solely on a finding of probable cause. See

Commonwealth v. Ruiz, 453 Mass. 474, 479 (2009) (due process

"requires that a defendant sentenced to probation receive fair

warning of conduct that may result in the revocation of

probation"). Although we conclude that the judge's actions here

complied with due process, we recognize that warnings regarding

the standard of proof of a pretrial probation violation would be

helpful. Therefore, we urge that, when a judge places a

juvenile on pretrial probation, the judge warn the juvenile that

the pretrial probation can be terminated if a judge finds

probable cause to believe that the juvenile committed a new

criminal offense. Cf. Paquette, 440 Mass. at 126, quoting G. L.

c. 276, § 58 (juvenile "must be advised that . . . 'should [he

or she] be charged with a crime[,] . . . bail may be revoked'").

Noncriminal violations require different procedures. By

definition, there is no complaint or police report, so evidence

must be introduced to establish a violation. The balancing of

Despite the overlapping subject matter, the motion to dismiss is
a separate proceeding and a separate judicial determination. If
the Commonwealth establishes at a revocation hearing probable
cause that a violation occurred, the juvenile is not foreclosed
from later bringing a motion to dismiss under Humberto H.,
supra. If a subsequent motion to dismiss is successful,
pretrial probation need not be reinstated.
 26

the factors from Mathews, 424 U.S. at 334-335, also is

different. Violations of noncriminal terms of probation are

generally less harmful to society than criminal violations.

Compare Juvenile Court Standing Order 1–17(III) (requiring

probation service to issue notice of violation whenever juvenile

probationer is charged with new offense) with Juvenile Court

Standing Order 1–17(IV) (giving probation service discretion

whether to issue notice of violation for noncriminal conduct).

See Federal Sentencing Guidelines Manual § 7B1.1, 7B1.4 (updated

Nov. 2010) (shorter sentences for violations of noncriminal

conditions of probation); Brown v. Plata, 563 U.S. 493, 537

(2011) (implying that noncriminal violations are less harmful).

Therefore, the government interest in revocations based on

noncriminal violations is reduced, and procedural due process

requires greater protections. See Mathews, supra. We conclude

that proof by a preponderance of the evidence, a higher standard

than probable cause, is required. Compare Commonwealth v.

Brennan, 481 Mass. 146, 149 (2018) (probable cause is

established by "reasonably trustworthy information sufficient to

warrant a reasonable or prudent person in believing that the

defendant has committed the offense"), with Commonwealth v.

Bright, 463 Mass. 421, 434 & n.19 (2012) (preponderance means

"more likely than not"). Because of the diminished government

interest, and because an evidentiary hearing must be held, we
 27

also conclude that the juvenile must be given the opportunity to

introduce evidence to rebut allegations of noncriminal

violations. Although the juvenile's right to present rebuttal

evidence occasionally may require the revocation hearing to be

continued to the next court date, we anticipate that such delays

will not be protracted.

Conclusion. We answer the reported questions as follows:

1. "General Laws c. 276, § 58B, does not govern the

revocation of pretrial probation of a juvenile."

2. "To revoke a juvenile's pretrial probation based on a

new criminal offense, a judge must find probable cause that the

juvenile committed the offense. All other violations must be

proved by a preponderance of the evidence."

3. "For a revocation of a juvenile's pretrial probation,

due process requires notice of the alleged violations,

opportunity to be heard, and a judicial finding that a condition

was violated. The other evidentiary requirements in

Commonwealth v. Durling, 407 Mass. 108 (1990), do not apply to

juvenile pretrial probation revocation hearings."

The matter is remanded to the Juvenile Court for further

proceedings consistent with this opinion.

So ordered.