Commonwealth v. Pena, 462 Mass. 183

Pena pleaded guilty on April 24, 2006 to breaking and entering in daylight with intent to commit a felony, larceny over $250, possession of burglarious tools, and resisting arrest; probation through October 27, 2008 with conditions including reporting and paying a monthly supervision fee or performing community service.
On June 13, 2007, a Suffolk County grand jury indicted Pena on multiple new offenses including several B&Es, receiving stolen property, and larceny; the notice of surrender alleged nine new offenses plus failures to pay fees and to report in 2008.
A probation violation hearing began April 30, 2008; Pena had standby counsel after his requests for private counsel were denied; private counsel was not obtained despite continuances, and the hearing later resumed on July 29, 2008.
The judge found Pena violated probation based on the new offenses and his other violations, and revoked probation, sentencing him to prison terms on counts 2 and 3; count 4 was terminated from probation.
On May 4, 2010, Pena pleaded guilty to thirteen of the June 13, 2007 indictments; the appellate issue centered on whether the probation revocation appeal remained live given subsequent guilty pleas and whether Pena was denied effective counsel; the trial judge warned Pena about obtaining counsel and Pena ultimately proceeded with standby counsel.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the appeal is moot after Pena’s guilty pleas	Pena argues mootness should not bar review of due process/counsel issues	Commonwealth contends moot because underlying offenses were resolved	Not moot; right-to-counsel issues survive to sentencing-disposition analysis
Whether Pena was denied the right to counsel at the probation violation hearing	Pena contends denial of private counsel violated Sixth Amendment rights	Judge’s denial of continuance did not violate rights given counsel was available and standby counsel served	No violation; waiver by conduct effectively replaced appointed counsel
Whether Pena’s waiver of counsel was effective	Waiver not adequately established; leakage of rights due to coercive environment	Waiver by conduct due to Pena’s refusal of appointed counsel and failure to obtain private counsel	Waiver by conduct is effective; no undue coercion shown; waiver valid
Whether the denial of a continuance to secure private counsel violated due process	Continuance needed to obtain private counsel due to complexity of case	Judge acted to keep proceedings moving; last-chance warnings given	Judge did not abuse discretion; proceedings continued only upon Pena’s failure to obtain counsel; no due process violation

Commonwealth v. Lee, 394 Mass. 209 (1985) (waiver of counsel may be involuntary if no fair understanding of waiver)
Commonwealth v. Appleby, 389 Mass. 359 (1983) (waiver of counsel may be ineffective if not understood or intelligent)
Commonwealth v. Babb, 416 Mass. 732 (1994) (defendant’s refusal to proceed with appointed counsel without good cause constitutes abandonment)
Commonwealth v. Dunne, 394 Mass. 10 (1985) (right to counsel extended; indigent rights and counsel appointments in probation contexts)
Commonwealth v. Patton, 458 Mass. 119 (2010) (probationer entitled to effective counsel during probation violation proceedings when imprisonment may result)
Commonwealth v. Cavanaugh, 371 Mass. 46 (1976) (judge must balance need for time with fair administration of justice; no per se rule for continuances)