445 Mass. 446 | Mass. | 2005
We are called on to decide whether the Superior Court has jurisdiction to revoke probation and impose sanctions for behavior occurring after the date on which a defendant’s probation was scheduled to terminate when the defendant was on notice that revocation proceedings had begun but had been continued at his request.
The essential facts are contained in a Superior Court judge’s memorandum of decision and are not disputed.
In the interim, on February 21 and February 26, 2003, the defendant telephoned the complainant in the underlying indictments and threatened her. A criminal complaint issued against him for these offenses on February 27, 2003. As a result, the prerevocation hearing was rescheduled for March 18. On that date, a dangerousness hearing on the new charges, see G. L. c. 276, § 58A, was held in the District Court. The defendant was found to be dangerous and held without bail. After the hearing, he was served with an amended notice of violation that included the new charges.
A probation surrender hearing was scheduled for May 6, 2003, and, on that date, the defendant “did not challenge” the violations contained in the surrender notice, including the subsequent arrest. He did request that any sentence imposed not
The defendant moved for reconsideration on the ground that the judge erred in fashioning a sentence that considered conduct occurring after his probationary term. The judge agreed with the defendant and allowed the motion for reconsideration, noting in her memorandum and order that she would not have imposed a State prison sentence if the only infractions had been the so-called “technical” violations contained in the original notice of surrender. The Commonwealth then moved for reconsideration on the ground that the defendant remained on probation when he committed the new offenses.
The judge vacated her initial order of reconsideration and the sentence imposed remained in effect. She denied the defendant’s second motion for reconsideration. The defendant appealed and we granted the Commonwealth’s application for direct appellate review. We conclude that, on these facts, the judge could not sanction the defendant for violations committed after his scheduled termination of probation on February 15, 2003.
Both parties are in agreement that the probationer may not be penalized through probation revocation proceedings for offenses occurring after probation has ended.
The case is governed by Commonwealth v. Sawicki, 369 Mass. 377 (1975). There, a judge in the Superior Court reported the question whether the Superior Court had jurisdiction after the expiration of a defendant’s term of probation to enter an order extending the term of that probation based on the defendant’s violations of conditions of probation that occurred dining the term. We answered the question affirmatively, and noted that although there is “power in the court [to act] beyond the probationary period ... we of course confine the power to action in respect to violations committed during the period.” Id. at 384. Thus, in the Sawicki case, although we concluded that the judge retained jurisdiction to act beyond the term of probation and could extend that term, we stated that the acts that constituted the basis for that extension must have been violations of probation committed within the scope of the probationary term in question. Id.
Similarly, in the present case, a court retains the authority to act beyond the original period of probation, but it may not penalize the defendant for violations committed beyond that period. We add, as we did in the Sawicki case, that the judge must “decide the question of extension or revocation of probation within a reasonable time.” Id. at 384-385. But see Commonwealth v. Odoardi, 397 Mass. 28, 35-37 (1986) (probation revoked twenty-two months after indictments on new charges, seven months after date of convictions, and nearly six months after date probation due to expire; delay not shown to be unreasonable where record did not indicate either that Commonwealth failed to act diligently or that defendant was prejudiced); Commonwealth v. Collins, 31 Mass. App. Ct. 679, 681-684 (1991) (although probation revocation proceeding was commenced more than five years after commission of offenses on which revocation was based and almost four years after defendant’s probation would have expired, delay was not unreasonable and did not constitute due process violation).
The Commonwealth contends that the Superior Court was
Because we cannot determine on the record presented what action the judge would have taken had she found the defendant
So ordered.
Where necessary, the facts in the judge’s memorandum of decision are supplemented with uncontested evidence appearing in the record.
The defendant also received concurrent one-year sentences to a house of correction on two convictions of violating abuse prevention orders and two convictions of assault and battery. In addition, he pleaded guilty to breaking and entering with the intent to commit a misdemeanor and was ordered to serve six months of probation concurrent with the three-year probation.
The scheduled probation expiration date is less than five and one-half years after the date of sentencing. That is explained by the fact that the sentence of two and one-half years was imposed concurrently with a sentence the defendant was then serving on a “District Court case” with “credit [for] 168 days.”
The defendant may of course be prosecuted for the new offenses by means of a new complaint.
Along with its claim of “waiver,” the Commonwealth asserts that the defendant should be “estopped” from arguing that his probation ended at the expiration of the original term. In essence, the Commonwealth contends that by means of his request for a continuance of the February 12, 2003, hearing to a date that would be beyond the expiration of his original probationary term, the defendant implicitly consented to the extension of his probation pending the outcome of the revocation proceedings. We see no such waiver or consent on this record, particularly given the proposition that a waiver of constitutional rights must be express and cannot be implied. See, e.g., Ciummei v. Commonwealth, 378 Mass. 504, 509 (1979) (where defendant waives right to jury trial, colloquy required to make “clear record” of defendant’s waiver and to ensure that waiver was made “voluntarily and intelligently”). A waiver of constitutional rights and a consent to the extension of probation do not lurk in a mere request for a continuance.