STATE v. Harry W. BROWN.
No. 2014-194-C.A.
Supreme Court of Rhode Island.
July 15, 2016.
must be made after the charge is given; if no such post-charge objection is made, a pre-charge objection cannot preserve the claim of error.4
Because of my conclusion that the text of Rule 30 mandates that a litigant object to the jury charge after it is given, I cannot join the majority opinion in this case. In Davis, 131 A.3d at 691, this Court concluded that “we would be elevating form over substance if we were to hold that [the] defendant failed to adequately preserve the issue of the trial justice‘s denial of a request for a limiting instruction.” The majority invokes a similar rationale in this case. I appreciate the concerns of my colleagues, but, in my opinion, there is no place for this sympathy. When an attorney goes to sidebar after the trial justice instructs the jury and states “[n]o exception” to the charge, particularly when that lawyer has never before articulated an objection on the record, the issue is closed.
The conclusion that defendant failed to preserve this issue because he failed to object after the charge was given may well represent the elevation of form over substance, but it is important to consider precisely why that is necessary. In my opinion, the text of Rule 30 mandates that objections to the jury charge must be made after the charge is given in order to be properly preserved. It is the text of the rule that commands the triumph of form over substance, and we fail to fulfill our roles as judges when we cease to enforce clear rules whenever we deem the result unpalatable. After all, the drawbacks of a bright-line rule often go hand in hand with its virtues. Furthermore, a hard-and-fast rule provides clear guidance to the bench and bar.
To the extent that Davis represented the first step in a judicial departure from the language of Rule 30, this case is a leap into the unknown world of judicial fiat. It is a journey upon which I decline to embark. Unless and until Rule 30 is amended, it should be enforced as written. Consequently, I respectfully
Lauren S. Zurier, Department of Attorney General, for State.
Kara J. Maguire, Office of the Public Defender, for Defendant.
Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, ROBINSON, and INDEGLIA, JJ.
OPINION
Justice GOLDBERG, for the Court.
The defendant, Harry W. Brown, is before the Supreme Court on appeal from an adjudication by a justice of the Superior Court declaring him to be in violation of the terms and conditions of probation. The defendant applied for a transfer of his probation supervision from the State of Rhode Island to the Commonwealth of Pennsylvania pursuant to the Interstate Compact for Adult Offender Supervision (ICAOS or Compact),
Facts and Travel
In 1996, defendant entered a plea of nolo contendere to all counts of a twenty-seven-count indictment that charged him with first-degree child molestation sexual assault, second-degree child molestation sexual
The defendant was released from the ACI on parole on November 16, 2005. Pennsylvania began supervising his parole two days later. In December 2008, defendant signed a document entitled “Special Conditions of Parole” prepared by the Commonwealth of Pennsylvania Board of Probation and Parole; defendant agreed to abide by the following special condition of parole:
“I shall refrain from using any computer and/or device to create any social networking profile or to access any social networking service or chat room (including but not limited to MySpace.com, Facebook, Match.com, Yahoo Messenger/Yahoo 360, AOL/AOL Instant Messenger, and any online dating service) in my own name or any other name for any reason unless expressly authorized by the District Parole Supervisor.”
On October 20, 2011, presumably at the conclusion of his parole term, defendant signed a document entitled “Rhode Island Department of Corrections Adult Probation and Parole Conditions of Supervised Probation” (Rhode Island Conditions of Supervised Probation) in which he acknowledged, “I must obey the * * * [c]onditions [set forth in the document] throughout the term of my [p]robation.”2 He also acknowledged that: “Failure to follow each and every one of the [c]onditions of [p]robation could result in further [c]ourt action. If I violate my [p]robation, the [c]ourt could impose the sentence allowable by law.”
The defendant applied for transfer of his probation supervision from Rhode Island to Pennsylvania pursuant to the Compact. The transfer application, which is dated October 15, 2011 and was signed by defendant on January 4, 2012, provided, in pertinent part, that:
“I, HARRY W. BROWN, am applying for transfer of my parole/probation/other supervision from RHODE ISLAND (sending state) to PENNSYLVANIA (receiving state). I understand that this transfer of supervision will be subject to the rules of the Interstate Commission for Adult Offender Supervision.
“I understand that my supervision in another state may be different than the
supervision I would be subject to in this state. I agree to accept any differences that may exist because I believe that transferring my supervision to PENNSYLVANIA (receiving state) will improve my chances for making a good adjustment in the community. I ask that the authorities to whom this application is made recognize this fact and grant my request for transfer of supervision. “In support of my application for transfer, I make the following statements:
“* * *
“2. I will comply with the terms and conditions of my supervision that have been placed on me, or that will be placed on me by RHODE ISLAND (sending state) and PENNSYLVANIA (receiving state).
“3. I understand that if I do not comply with all the terms and conditions that the sending state or the receiving state, or both, placed on me, that it will be considered a violation and I may be returned to the sending state.”
Pennsylvania accepted the transfer request.
Meanwhile, defendant violated Pennsylvania‘s condition relating to the use of social-networking sites. On December 1, 2011, Pennsylvania sent Rhode Island a “Compact Action Request,” indicating that Pennsylvania authorities “allowed [defendant] to have limited access to the [I]nternet. He took advantage of this privilege [by] utilizing a cell phone to access online dating sites.” Through the Compact Action Request, one of the Pennsylvania parole agents assigned to defendant‘s case requested “that [Rhode Island] propose a special condition [on defendant] to not utilize or have access to the [I]nternet at any time.” Rhode Island gave the following reply: “Per [C]ompact [R]ule 4.103, the receiving state can impose any conditions appropriate to offenders placed under supervision in the receiving state. Therefore, if [Pennsylvania] wishes to impose a condition of no [I]nternet access, it has the authority to do so.”3
Pennsylvania thereafter imposed several additional conditions. On July 31, 2012, defendant signed two documents in which he agreed to comply with the following pertinent additional conditions:
“You must not possess, view, listen to[,] or read any sexually explicit material, including any articles, literature, books, magazines, photographs, e-mails, websites, digital images, animated photographs or images, tapes, videos, or any content that may be or is broadcast by radio, television[,] or computer (including by satellite). Sexually explicit, for the purpose of this condition and all other conditions, is defined as actual or simulated depiction of the following: (1) sexual intercourse, including genital-genital, oral-genital, anal-genital, hand-genital[,] or oral-anal intercourse; (2) be[ ]stiality; (3) masturbation; (4) sadistic or masochistic abuse; (5) exhibition of the genitals or pubic area of any person; and (6) nudity.
* * *
“You must not form an intimate or romantic/sexual relationship with any person who has full or partial physical custody, including visitation rights, of anyone under the age of 18 years old without the prior written approval of
probation/parole supervision staff and[,] if applicable, in agreement with your treatment provider.”
We shall refer to these two conditions—together with the special condition regarding use of the Internet to access social-networking sites to which defendant agreed in December 2008 and with which he was obligated to comply—as the Pennsylvania conditions.
Pennsylvania parole agent Tracy Starzynski was assigned to defendant‘s case in November 2013. Starzynski met with defendant and reviewed the Pennsylvania conditions with him. The defendant stated that he understood the conditions and acknowledged that he knew that he was subject to them before his meeting with Starzynski. Notwithstanding this acknowledgment, defendant knowingly violated the Pennsylvania conditions.
On January 11, 2014, Starzynski and other Pennsylvania parole agents searched defendant‘s residence and cell phone. In defendant‘s bedroom, parole agents found at least one pornographic DVD under his nightstand, as well as a stack of photographs depicting nude or partially clad women in his closet. The defendant admitted to parole agents that he used these materials to masturbate. In addition, on top of the stack of photographs that was discovered in his closet, parole agents found a photograph of a fully-clothed school-aged girl. The defendant admitted to parole agents that the girl in the photograph was the child of a woman with whom he recently had a yearlong dating relationship. Finally, a search of defendant‘s phone revealed that he once again had been using dating and social-networking sites. The profile names used by defendant this time were different from the earlier occasion when parole agents discovered his unauthorized use of social-networking sites.
Based on the evidence discovered during this search, defendant was charged with violating the Pennsylvania conditions. On January 14, 2014, defendant executed a form entitled “Waiver of Probable Cause Hearing and Admission Form” (waiver form), in which he proceeded to waive his right to counsel and his right to a probable-cause hearing in Pennsylvania; he also admitted that he violated the Pennsylvania conditions. The waiver form provided, in pertinent part, that:
“I have been advised of my right to a probable[-]cause hearing and counsel representation at that hearing. With full knowledge and understanding of my right to counsel and a probable[-]cause hearing, I hereby waive those rights. I waive these rights of my own free will, without promise, threat[,] or coercion.
* * *
“On the 14[th] day of January two thousand and [fourteen], I[,] Harry Brown[,] do knowingly, intelligently, and voluntarily admit that I was in violation of the terms and conditions of my probation or parole. The specific violation(s) that I committed was/were [Rhode Island] Condition[] # 8[,] * * * [Pennsylvania] Condition # 7 ([counts] 1, 2, 3)[.] I knowingly, voluntarily[,] and willingly admit to the violation(s) listed above.”
The Pennsylvania Board of Probation and Parole then notified Rhode Island that it found probable cause to believe that defendant had violated the Pennsylvania conditions; defendant was returned to this state.
The state filed a notice of probation violation under
The hearing justice adjudged defendant to be a probation violator. He offered two grounds for his decision. First, at the state‘s urging, the hearing justice determined that ICAOS Rules, Rule 4.103-1 (Rule 4.103-1) (2016) mandated that he treat the violations to which defendant admitted as a violation of his Rhode Island probation. Additionally, the trial justice went on to conclude that, irrespective of Rule 4.103-1‘s application, defendant‘s conduct in Pennsylvania amounted to a failure to keep the peace and remain of good behavior. With respect to this ground of decision, the hearing justice emphasized that “the actions that the [s]tate presented are sufficiently related to defendant‘s prior sexual misconduct that * * * it is of serious concern to the [c]ourt as to * * * defendant‘s ability to modify his sexual behavior so as not to be [a] danger to others, particularly children.” He also noted that defendant “promised to abide by certain conditions and he didn‘t keep that promise.”
The hearing justice executed eight years of the twenty-five years remaining on defendant‘s suspended sentence. The hearing justice considered the “number of serious charges” of which defendant stands convicted—twenty-seven counts of “criminal sexual behavior with his minor nieces when they visited him at his home and when he visited them in their home.” He further found that “the acts which form the basis of a violation * * * are particularly disturbing to the [c]ourt as they involve sexual behavior which he knew was a violation of the [Pennsylvania conditions].” The hearing justice explained that, “rather than conform his behavior to norms of proper sexual behavior, [defendant] once again has played out his sexual fantasies in a manner that causes the [c]ourt concern that he has not yet learned appropriate sexual conduct.” The hearing justice found that “defendant presents a danger to the safety and well-being of the community.” Additionally, the hearing justice imposed two new conditions of probation for the remainder of his suspended sentence: (1) that he refrain “from being in the presence of or communicating with persons under the age of [eighteen]“; and (2) that he be “prohibited from the use of computers.” The defendant objected that eight years of imprisonment was excessive; he did not, however, raise any objection to the new probation conditions. The defendant timely appealed.
Analysis
Scope of Rule 4.103-1
“[W]e review questions of statutory interpretation de novo.” State v. Hazard, 68 A.3d 479, 485 (R.I. 2013) (quoting Campbell v. State, 56 A.3d 448, 454 (R.I. 2012)). In this case, we must interpret a rule promulgated by the Interstate Commission on Adult Offender Supervision (Commission). Under the Compact, these rules “have the force and effect of statutory law and shall be binding in the compacting states.”
The ICAOS is a “congressionally authorized agreement among states governing the transfer of supervision of adult offenders,” M.F. v. New York Executive Department Division of Parole, 640 F.3d 491, 492 (2d Cir. 2011), and, as such, “has the force of federal law,” id. at 494. See also id. at 495 n. 5. It has been enacted in all fifty states, the District of Columbia, Puerto Rico, and the United States Virgin Islands. See Goe v. Commissioner of Probation, 473 Mass. 815, 46 N.E.3d 997, 1002 (2016); see also ICAOS Bench Book for Judges and Court Personnel (Bench Book) § 2.7 at 40-41 (2016), available at http://www.interstatecompact.org/LinkClick.aspx?fileticket=LI8cilipSOM%3d&tabid=358&portalid=0∣=4264. This Court has never before had occasion to interpret either the Compact or one of the rules promulgated by the Commission.
The ICAOS Rules direct a receiving state—such as Pennsylvania in this case—to “supervise an offender transferred under the * * * [C]ompact in a manner determined by the receiving state and consistent with the supervision of other similar offenders sentenced in the receiving state.” ICAOS Rules, Rule 4.101 at 40 (2016), available at http://www.interstatecompact.org/LinkClick.aspx?fileticket=qGvYF9N1mNU%3d&tabid=358&portalid=0∣=4284; see also ICAOS Advisory Op. No. 2-2005, at 6 (Mar. 4, 2005), available at http://www.interstatecompact.org/Portals/0/library/legal/advisoryopinions/AdvisoryOpinion_2-2005_FL.pdf (“The ICAOS rules require the receiving state to supervise out-of-state offenders under the same standards as it would supervise in-state offenders.“). To achieve compliance with this directive, receiving states are expressly authorized to “impose a special condition on an offender transferred under the * * * [C]ompact if that special condition would have been imposed on the offender if sentence had been imposed in the receiving state.” ICAOS Rules, Rule 4.103(a) at 42 (2016), available at http://www.interstatecompact.org/LinkClick.aspx?fileticket=qGvYF9N1mNU%3d&tabid=358&portalid=0∣=4264. Pennsylvania followed these rules in this case when it imposed the Pennsylvania conditions on defendant‘s supervision, and it is undisputed that Brown acknowledged Pennsylvania‘s authority to do so and agreed to comply with each of the Pennsylvania conditions.4
When, as in this case, an offender fails to comply with an additional condition imposed by the receiving state, Rule 4.103-1 is implicated. That rule provides that:
“For purposes of revocation or other punitive action against an offender, the probation or paroling authority of a sending state shall give the same effect to a violation of special conditions or requirement[s] imposed by a receiving state as if those conditions or requirement[s] had been imposed by the sending state. Failure of an offender to
comply with special conditions or additional requirements imposed by a receiving state shall form the basis of punitive action in the sending state notwithstanding the absence of such conditions or requirements in the original plan of supervision issued by the sending state. For purposes of this rule, the original plan of supervision shall include, but not be limited to, any court orders setting forth the terms and conditions of probation, any orders incorporating a plan of supervision by reference, or any orders or directives of the paroling or probation authority.” ICAOS Rules, Rule 4.103-1 at 43, available at http://www.interstatecompact.org/LinkClick.aspx?fileticket=qGvYF9N1mNU%3d&tabid=358&portalid=0∣=4264.
The state argues that Rule 4.103-1 compels a Rhode Island Superior Court hearing justice to enter an adjudication of probation violation whenever a Rhode Island offender who has been transferred under the Compact violates an additional condition of supervision imposed by a receiving state. We disagree that Rule 4.103-1 imposes such a duty—or, indeed, any duty—on a Superior Court hearing justice.
To be sure, Rule 4.103-1 undeniably imposes a duty on a sending-state entity: “the probation or paroling authority of a sending state.” Neither the Compact nor the ICAOS Rules define this entity, but it clearly does not encompass the courts of a sending state. The third sentence of Rule 4.103-1 draws a distinction between a “court” in the sending state and “the probation or paroling authority of a sending state,” thus recognizing that they are separate entities. Id. (“[T]he original plan of supervision shall include, but not be limited to, any court orders setting forth the terms and conditions of probation, any orders incorporating a plan of supervision by reference, or any orders or directives of the paroling or probation authority.” (emphasis added)).
Therefore, we interpret Rule 4.103-1 as mandating that the probation or paroling authority of a sending state undertake “revocation or other punitive action” against an offender for violating a condition imposed by the receiving state, irrespective of whether the condition was imposed by the sending state in the first instance.5 Failure to comply with the conditions imposed in the receiving state clearly forms the basis of punitive action in the sending state. The rule does not mandate, however, that a Superior Court hearing justice mechanically hold that a violation of a condition imposed by the receiving state constitutes a violation of defendant‘s probation in the sending state.6
On appeal, the court first held that the offender voluntarily modified his probation when he filled out the transfer application and accepted the Colorado conditions:
“[I]n this case, [the offender] asked to have his probation transferred to Colorado. Colorado conditioned its acceptance on his agreement to the Colorado conditions. We view this as a voluntary modification
of his probation. [The offender] signed an Interstate Compact application under which he agreed to abide by both Florida‘s and Colorado‘s conditions of probation. There can be no doubt that [the offender] was fully aware of the conditions of his probation added by Colorado and had the opportunity to object to those conditions. If [the offender] did not wish to abide by
“Revocation or Punitive Action by the Sending State-Special Conditions
“For purposes of revocation or other punitive action, a sending state is required to give the same effect to the violation of a special condition imposed by the receiving state as if the condition had been imposed by the sending state. Furthermore, the violation of a special condition imposed by the receiving state can be the basis of punitive action even though it was not part of the original plan of supervision established by the sending state. Special conditions may be imposed by the receiving state at the time of acceptance of supervision or during the term of supervision, [s]ee Rule 4.103. Thus by way of example, if at the time of acceptance, a receiving state imposed a condition of drug treatment and the offender violated that condition, the sending state would be required to give effect to that violation even though the special condition was not a part of the original plan of supervision.
“PRACTICE NOTE: A sending state must give effect to the violation of a special condition or other requirement imposed by the receiving state even if the condition or requirement was not contained in the original plan of supervision.” Bench Book § 4.5 at 98 (emphases added).
Significantly, the focus of Rule 4.103-1, however, is not directed at the sending state generally, but at a particular entity of the sending state: namely, the probation or paroling authority of the sending state. Nothing in the Compact or the ICAOS Rules suggests that this entity is synonymous with the sending state; if that were so, the reference to “the probation or paroling authority” would be entirely superfluous. Cf. State v. Clark, 974 A.2d 558, 571-72 (R.I. 2009) (“[T]he Legislature is presumed to have intended each word or provision of a statute to express a significant meaning, and the [C]ourt will give effect to every word, clause, or sentence, whenever possible. * * * [N]o construction of a statute should be adopted that would demote any significant phrase or clause to mere surplusage.” (internal quotation marks omitted)). In any event, we are not concerned with any discrepancies between the Bench Book and Rule 4.103-1 because neither text purports to impose the duty to take punitive action on the courts of a sending state. Moreover, only the rule has the force of law, and the Bench Book may not be used to contradict the clear meaning of the ICAOS Rules. See ICAOS Advisory Op. No. 1-2008, at 2, 4-5 (Mar. 18, 2008) available at http://www.interstatecompact.org/Portals/0/library/legal/advisoryopinions/AdvisoryOpinion_1-2008_MA.pdf.
the Colorado conditions, he did not have to sign the Interstate Compact and could have remained in Florida.” Critelli, 962 So. 2d at 343.
The court then rejected the argument that “the only penalty for a violation of the Colorado conditions was to return him to Florida, not the revocation of his probation.” Id. After quoting Rule 4.103-1, the court held: “This rule clearly refutes [the offender]‘s argument. Further, [the offender] should not be able to accept the benefits of his transfer to Colorado, and then fail to carry out the required conditions.” Critelli, 962 So. 2d at 344.
We agree with the Critelli court‘s conclusion that Rule 4.103-1 foreclosed the offender‘s argument that retaking by the sending state was the only consequence of violation of the receiving state‘s additional conditions. However, Critelli relies upon the notion that the language of the transfer application in that case represented the offender‘s “voluntary modification of * * * probation.” Critelli, 962 So. 2d at 343. The transfer application executed by defendant in this case leads us to a different conclusion. We are of the opinion that this transfer application did not constitute a modification of defendant‘s probation; indeed, the application does not indicate that a violation of an additional condition imposed by Pennsylvania would automatically lead to an adjudication of probation violation in Rhode Island. See supra note 4. We also note that Critelli does not speak to what entity Rule 4.103-1 tasks with taking punitive action in the sending state—the probation or paroling authority. We deem the precise scope of Rule 4.103-1 to be critical to the issue with which we are confronted.
Although defendant challenges the authority of the Commission to mandate that courts of a sending state automatically adjudge an offender to be a probation violator on the basis of a violation of a condition of supervision imposed by a receiving state, we need not address these contentions because the plain text of Rule 4.103-1 does not purport to exercise such authority.7 We hold that Rule 4.103-1 imposes upon the probation or paroling authority of the sending state the duty to undertake revocation or other punitive action against an offender for violation of a condition imposed by the receiving state, even where, as here, the additional condition was not one that was imposed by the sending state.8 However, this rule does not impose a corresponding duty on the Supe-
rior
Hearing Justice‘s Adjudication of Probation Violation
With the precise scope of Rule 4.103-1 in focus, we turn to the hearing justice‘s adjudication of probation violation. The sole focus of a probation violation hearing is to determine whether a defendant has failed to keep the peace and remain of good behavior or has otherwise violated the terms and conditions of his or her probation. State v. Gibson, 126 A.3d 427, 431 (R.I. 2015). The state bears the burden to “prove to the reasonable satisfaction of the [hearing] justice” that the terms and conditions of probation have been violated. Id. (quoting Hazard, 68 A.3d at 499). “We review a [hearing] justice‘s adjudication of probation violation deferentially, reversing only where the [hearing] justice ‘acted arbitrarily or capriciously in finding a violation.‘” Id. (quoting Hazard, 68 A.3d at 499). The defendant argues that the conduct that violated the Pennsylvania conditions was “perfectly non-criminal, normal conduct” that does not “even remotely approach[ ] a failure to be of good behavior.” We reject this argument.
There is no requirement that, for conduct to amount to a failure to keep the peace and remain of good behavior, it must be criminal in nature. See State v. Vieira, 883 A.2d 1146, 1148 (R.I. 2005) (“At a probation violation hearing, we faithfully have held that the state is not required to prove that a defendant has committed a crime; instead, the state must prove through reasonably satisfactory evidence that a defendant has failed to keep the peace or remain of good behavior.“); see also
In this case, the hearing justice set forth two grounds to support his conclusion that defendant failed to keep the peace and remain of good behavior. First, he noted
For starters, defendant voluntarily agreed to abide by the Pennsylvania conditions in exchange for the benefit of remaining in Pennsylvania, and he persistently failed to uphold his end of the bargain. In other words, defendant entered into a contract with Pennsylvania regarding the manner in which he would behave while residing in that state. In this respect, then, defendant‘s agreement with Pennsylvania is not unlike the contract he signed with the DOC. The defendant agreed in the Rhode Island Conditions of Supervised Probation to obey several conditions that were not imposed by the trial court, including to “[r]emain within the State of Rhode Island, except with the * * * prior approval of [the] Probation Officer where you are seeking permission to leave the State of Rhode Island.” If a defendant leaves the state in violation of the contract that he or she signed with the DOC, that conduct is relevant in a probation violation hearing. See, e.g., State v. Murray, 22 A.3d 385, 386-87 (R.I. 2011) (mem.) (the defendant adjudged to be a probation violator where he left the state without permission); see also State v. Roberts, 59 A.3d 693, 695-96 (R.I. 2013) (state filed a probation violation report against the defendant based, in part, on his departure from the state without permission; the defendant admitted the violation). Similarly, the hearing justice did not act arbitrarily or capriciously in treating defendant‘s breach of his contract with Pennsylvania as evidence that he failed to keep the peace and remain of good behavior.
Importantly, treating defendant‘s breach of the Pennsylvania conditions as evidence of failure to keep the peace and remain of good behavior is not tantamount to making the Pennsylvania conditions part of the terms and conditions of the probationary sentence imposed by the trial justice. The violation of the Pennsylvania conditions is not itself a violation of defendant‘s probation, but it is merely evidence of his failure to keep the peace and remain of good behavior. Cf. State v. Bellem, 56 A.3d 432, 435 (R.I. 2012) (affirming hearing justice‘s conclusion that “the defendant failed to keep the peace and be of good behavior when he violated [two] no-contact orders [of which the hearing justice took judicial notice] by calling” the complaining witness). We by no means imply that every violation of an additional condition imposed by a receiving state will amount to a failure to keep the peace and remain of good behavior. To the contrary, as we demonstrate in this opinion, each case will require an assessment of the particular conduct involved.
Additionally, defendant‘s failure to comply with the condition relating to the use of dating and social-networking sites was persistent, willful, and alarming behavior by a convicted child molester. Starzynski testified that, before the violations of the Pennsylvania conditions that were the genesis of his return to Rhode Island, it was discovered that defendant used dating sites in violation of the relevant Pennsylvania condition. When Starzynski subsequently was assigned to his case, she reviewed
Finally, contrary to another of the Pennsylvania conditions, defendant was in possession of a sizable stack of photographs of naked or scantily clad women in his bedroom closet. The defendant admitted that he used these photographs for masturbation. Significantly, sitting on the top of this stack was a photograph of a fully-clothed school-aged child. Given the numerous prior instances of first-degree child molestation for which defendant was on probation, the placement of a photograph of a minor child in a bedroom closet on top of the stack of images that defendant admittedly used for sexual gratification is highly suspicious and, indeed, disturbing behavior. Cf. State v. Pitts, 960 A.2d 240, 246 (R.I. 2008) (concluding that, even if the defendant‘s conduct—“masturbating in his van near a school“—did not constitute the criminal offense of disorderly conduct, “there was sufficient evidence for the hearing justice to conclude that he had violated his probation by failing to keep the peace and remain [of] good behavior” because “the fact that [the defendant] was engaged in a sexual act in a vehicle on a public highway, at a time when he was on probation for prior sex offenses, constituted a violation of the terms of his probation[;] [e]specially in light of this defendant‘s prior convictions for child sexual molestation, his masturbating in his van near a school undoubtedly does not meet the test of good behavior“).10
For these reasons, we are satisfied that the hearing justice did not act arbitrarily and capriciously in finding that defendant failed to keep the peace and remain of good behavior.
Evidence from Receiving State
Before turning to defendant‘s arguments concerning the hearing justice‘s execution of a portion of his previously imposed sentence, we briefly pause to address the manner in which a hearing justice should proceed in a Compact case. The parties dispute the effect to be given to the waiver form signed by defendant in Pennsylvania in accordance with ICAOS Rule 5.108 (Rule 5.108). See ICAOS Rules, Rule 5.108(b) at 66 (2016), available at http://www.interstatecompact.org/LinkClick.aspx?fileticket=qGvYF9N1mNU%3d&tabid=358&portalid=0∣=4264
We nonetheless remain mindful of the burden that would be imposed on receiving-state officials if their physical presence were required in the sending state in every instance in order to establish a prima facie case of probation violation. As the Commonwealth Court of Pennsylvania has explained,
“holding a hearing or requiring a waiver in the receiving state is to make the Compact workable by avoiding the expense of parole agents coming to the sending state to testify. Once a preliminary hearing is held finding probable cause or a parolee has signed a waiver admitting the violations, then under the Compact, a Case Closure Notice and Violation Report are sent to the sending state. The sending state may then use that evidence to support the violation and the parolee is free to offer any explanation, which the [sending state] may consider in deciding whether to revoke his parole or impose backtime.” Sanders v. Pennsylvania Board of Probation and Parole, 958 A.2d 582, 586 (Pa. Commw. Ct. 2008).
We agree with our learned colleagues, but note that, in the revocation-of-probation context, the relevant considerations are broader. Although a defendant in the probation violation context is not entitled to the full panoply of due process rights afforded to defendants in criminal proceedings, he or she is nonetheless entitled to “minimum due process protections: ‘notice of the hearing, notice of the claimed violation, the opportunity to be heard and present evidence [on the] defendant‘s behalf, and the right to confront and cross-examine the witnesses against [the] defendant.‘” State v. Bernard, 925 A.2d 936, 938 (R.I. 2007) (quoting State v. Vashey, 823 A.2d 1151, 1155 (R.I. 2003)). Of course, the right to confrontation is not absolute in a probation violation hearing; “hearsay may be admitted on issues central to determining whether a violation has been committed” so long as “the hearing justice first finds that there is good cause for denying confrontation and/or cross-examination.” Id. at 939 (quoting State v. DeRoche, 120 R.I. 523, 533, 389 A.2d 1229, 1234 (1978)). The critical assessment of whether the requisite good cause exists “is generally based on both ‘the reliability of proffered substitute evidence and the state‘s explanation of why confrontation was undesirable or impractical.‘” Id. (quoting State v. Casiano, 667 A.2d 1233, 1239 (R.I. 1995)).
These principles apply in Compact cases as well. For example, where a probable-cause hearing is held in the receiving state, see Rule 5.108(a) (“An offender subject to retaking for violation of conditions of supervision that may result in a revocation shall be afforded the opportunity for a probable[-]cause hearing before a neutral and detached hearing officer in or reasonably
The principles discussed in Bernard also apply in cases in which the offender waives the probable-cause hearing and admits to the violation. In cases where the validity of the waiver form is not challenged, the documentary evidence, including the violation reports and any other evidence compiled by the receiving state, is deemed sufficiently reliable, and a finding is made that requiring in-court testimony from the receiving-state actors is impractical or undesirable, the hearing justice is free to admit into evidence the record sent to this jurisdiction by the receiving state in accordance with the Compact. See Bernard, 925 A.2d at 939; cf. Sanders, 958 A.2d at 586 (“In this case, [the offender] signed the Waiver, which was entered into evidence without objection, listed the violations of the conditions of his parole, * * * and expressly stated: ‘I admit to violation of my release as stated above.’ * * * This admission alone constitutes substantial evidence for the [sending state] to make a finding that [the offender] violated his parole.“). In other circumstances, the hearing justice may decide that the offender is entitled to confront and cross-examine witnesses for a particular purpose. For example, where the offender raises a fact-based challenge to the validity of the waiver form, the hearing justice may deem witness testimony necessary on that discrete issue.13 If
Executed Sentence and Additional Conditions
The defendant also argues that the eight-year incarcerative term ordered by the hearing justice was excessive and that the additional conditions he imposed are unlawful. We first tackle his challenge to the excessiveness of the executed portion of defendant‘s suspended sentence. A trial justice is afforded substantial discretion in deciding whether “to execute all or a portion of a defendant‘s previously suspended sentence after a finding of probation violation.” Roberts, 59 A.3d at 697. In recognition of this discretion, we will disturb that decision only where an abuse of discretion has occurred. Id. We discern no abuse of discretion in this case.
In explaining his rationale for executing eight years, the hearing justice first examined the gravity of the offenses of which defendant stands convicted and then considered the degree of similarity between those offenses and the conduct that formed the basis of the adjudication of probation violation. In this respect, the hearing justice ably followed our case law. See State v. McKinnon-Conneally, 101 A.3d 875, 879 (R.I. 2014) (“When a hearing justice is deciding how much of a previously suspended sentence to execute, his or her primary focus should be on the nature of the first offense. * * * The circumstances of the second offense, however, may also be taken into account.“). The defendant complains that the hearing justice overstated the connection between his convictions and his conduct in Pennsylvania, but he overlooks the fact that he kept a photograph of a fully-clothed school-aged child on top of a stack of photographs that he admittedly used for purposes of masturbation—a highly troubling circumstance given defendant‘s prior convictions for child molestation. Finally, the hearing justice deemed defendant “a danger to the safety and well-being of the community.” In the circumstances of this case, we decline to second-guess this conclusion.
Additionally, although the eight-year incarcerative term ordered by the hearing justice was not insignificant, it represented only a fraction of the twenty-five years that remained on defendant‘s suspended sentence. See
ed
Finally, defendant challenges the hearing justice‘s imposition of two additional conditions of probation.15 Although
“the intention of the justice who originally imposed the suspended sentence[] is controlling and * * * the justice who finds a violation of probationary status and executes the sentence is bound by the initial determination[,]’ * * * a ‘trial justice at [a] violation hearing [does] not possess the statutory power to amend or decrease the sentence as originally imposed and [is] bound by the terms of that sentence.‘” Id. (quoting State v. Heath, 659 A.2d 116, 116, 117 (R.I. 1995)).
In State v. Taylor, 473 A.2d 290, 290 (R.I. 1984), the hearing justice executed the entirety of the defendant‘s two previously suspended sentences; in addition, he “imposed an additional five-year period of probation to commence upon [the defendant‘s] release.” We held that the hearing justice “plainly exceeded his statutory jurisdiction as explicitly defined in
So it is here. By its plain language,
Conclusion
For these reasons, we affirm in part and vacate in part. We affirm the hearing justice‘s adjudication of probation violation