Commonwealth v. Preston P., a juvenileCommonwealth v. Preston P., a juvenile
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us
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.
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
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 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 probation violation alleging new charges
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 [
“2. Where the Commonwealth seeks revocation of pretrial probation in contemplation of dismissal, pursuant to [
“3. Do the evidentiary principles in Commonwealth v. Durling, [407] Mass. 108, 111 (1990)[,] apply to such a hearing?”
See
We answer the first question, “No.” Based on the incongruence between the language of
1. Terminology. A Juvenile Court judge may place a juvenile on pretrial probation based on the statutory authorization of
a. Pretrial probation. With the consent of the juvenile and the Commonwealth, a judge may place a juvenile on pretrial probation pursuant to
b. Pretrial conditions of release.
As with pretrial probation, a defendant must consent to the conditions of pretrial release, but by contrast to pretrial 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
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
2. Statutory landscape. a. Whether
“A person who has been released after a hearing pursuant to [SS] 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 [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
First,
Second, a juvenile who is found in violation of conditions of release pursuant to
Third, revocations under
Taken together, these three incongruences demonstrate that
b. Statutory guidance. Because the Legislature has not prescribed a method in
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 proceedings. See
The pretrial diversion statute identifies probable cause as the standard of proof for violations based on new criminal offenses. See
3. Procedural due process. The doctrine of procedural due process mandates that deprivations of life, liberty, or property be
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 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
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
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 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
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 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
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 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 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 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
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);
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
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
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 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
Conclusion. We answer the reported questions as follows:
1. ”
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.