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16-P-1413 Appeals Court
COMMONWEALTH vs. JAMES M. BOWEN.
No. 16-P-1413.
Norfolk. October 4, 2017. - February 23, 2018.
Present: Green, Hanlon, & Neyman, JJ.
Due Process of Law, Probation revocation, Hearing. Practice, Criminal, Revocation of probation, Probation, Stipulation, Waiver, Assistance of counsel, Sentence, Waiver. Waiver.
Indictments found and returned in the Superior Court Department on September 2, 1999.
A proceeding for revocation of probation was heard by Thomas A. Connors, J.; a motion to reconsider was considered by Douglas Wilkins, J.; and a motion for a new hearing was heard by Connors, J.
Stacey Gross Marmor for the defendant. Tracey A. Cusick, Assistant District Attorney, for the Commonwealth.
NEYMAN, J. In Commonwealth v. Sayyid, 86 Mass. App. Ct.
479 (2014), this court held that a defendant's agreement to
waive a probation violation hearing must be knowing and
voluntary. Id. at 480, 489. Here, we are asked to determine 2
whether a defendant's stipulation during a probation violation
hearing to two alleged violations constituted a breach of due
process within the meaning of Sayyid. We hold that the
stipulation did not fall within the ambit of Sayyid, and we
discern no due process violation. Accordingly, we affirm.
Background. 1. Convictions and alleged probation
violations. In 2001, the defendant pleaded guilty in Superior
Court to six counts of aggravated rape. He was sentenced to
concurrent terms of eight to ten years in State prison on the
first five counts, and a twelve-year sentence of probation to be
served from and after the State prison sentences on the sixth
count.1 The defendant was released from custody in September,
2010, and began serving the twelve-year probation sentence.
In June, 2013, the defendant was issued a "Notice of
Surrender and hearing(s) for alleged violation(s) of Probation"
(notice of probation violation). He stipulated that he had
violated the probation conditions, and his probation was
1 The defendant has filed multiple motions for a new trial claiming, inter alia, that his guilty plea was not voluntary, was the product of coercion, and was the result of ineffective assistance of counsel. The defendant's first motion for a new trial was allowed; however, on appeal this court vacated the order and remanded the matter for further findings after an evidentiary hearing. Commonwealth v. Bowen, 63 Mass. App. Ct. 579 (2005). After a hearing on remand, the motion for a new trial was denied, and a panel of this court affirmed the denial. Commonwealth v. Bowen, 71 Mass. App. Ct. 1110 (2008). The defendant's second motion for new trial was denied without a hearing, and a panel of this court affirmed the denial. Commonwealth v. Bowen, 83 Mass. App. Ct. 1130 (2013). 3
extended for an additional year with modified conditions. In
October, 2013, the defendant was issued another notice of
probation violation. Following a probation violation hearing in
December, 2013, the defendant was again found to have violated
the probation conditions, but he was still not incarcerated.
Instead, his probation was further extended to 2030 with added
conditions. On April 16, 2014, a third notice of probation
violation was issued and served upon the defendant while he was
at the Superior Court for a matter relating to his probation.
As the defendant was not present when his case was called, a
warrant issued for his arrest.2
On May 29, 2014, the defendant was arrested in Florida as a
fugitive from justice. At the time of his arrest he was neither
wearing a global positioning system (GPS) monitoring device nor
had permission to leave the Commonwealth, as the terms of his
probation required. In June, 2014, a fourth notice of probation
2 After serving the defendant with the notice in Superior Court, the defendant's probation officer observed the defendant leave the court before his case was called. She followed him outside, shouted his name, and continued to shout for him to stop, but the defendant quickened his pace and ignored her. The probation officer informed a Superior Court judge of the defendant's flight, and a warrant for his arrest was issued. The probation officer then informed a State police sergeant of the warrant. The sergeant drove to the defendant's residence and observed the defendant leave the residence and enter a motor vehicle parked in the driveway. The sergeant called to the defendant by name and informed him of the warrant for his arrest. The defendant ignored her orders to stop, drove past her, and fled at a high rate of speed. The sergeant was not able to stop the defendant. 4
violation issued, alleging eleven separate violations of
probation conditions.3
2. Final probation violation hearing. A Superior Court
judge (sentencing judge) held a two-day probation violation
hearing in January, 2015. At the outset of the hearing, the
sentencing judge held a sidebar discussion with the probation
officer4 and defense attorney to ascertain whether the matter was
"resolvable." The probation officer stated that the guidelines
called for a sentence of twelve to eighteen years in State
prison. Defense counsel stated that at a prior appearance, a
different Superior Court judge had suggested that a sentence of
five to six years would be appropriate. Defense counsel also
stated that the defendant would stipulate to having left the
Commonwealth and removing the GPS monitoring device from his
3 The June, 2014 notice alleged that the defendant had committed the following probation violations: leaving the Commonwealth without permission; failure to report to probation; failure to attend and complete a drug and alcohol program; failure to attend Alcoholics Anonymous meetings; failure to maintain the GPS monitoring requirement; failure to register as a sex offender; failure to comply with a sex offender evaluation and treatment; failure to pay the probation supervision fee; "failure to make extraordinary efforts to secure employment"; failure to provide cellular telephone numbers; and failure to abide by all laws and court orders. 4 An assistant district attorney assisted the probation department at the probation violation hearing. 5
leg,5 but that the other technical violations of probation were
at issue. The sentencing judge replied, inter alia, that "the
[d]efendant apparently wants to dispute all or many of the
violations alleged." The sentencing judge further stated:
"[W]hat [the prior judge] proposed as a potential [sentence] did
make some sense. But if that's, that's a nonstarter, then you
know, he's got a right to try the case." Defense counsel
responded that the defendant was looking "for something less
than five to six." In response, the sentencing judge stated as
follows:
"That's fine. Why don't you talk to him, I mean, I understand, he wants to dispute many or all of the charges and that's fine. We'll hear it and, you know, I'll hear it and determine if there's a[] preponderance of the evidence and if it's made, then what the appropriate disposition is."
Following a brief recess, the evidentiary portion of the
hearing commenced.6 The probation department called several
witnesses who testified to the defendant's violations of
5 Defense counsel stated, in relevant part, "[The defendant] left the state. . . [t]here's no question about it and he admits that, he stipulates that, he took the, he slid the GPS monitoring system off his leg." Defense counsel further sought to mitigate the seriousness of the violation by advising the sentencing judge that the defendant "panicked" due to various factors, including "[h]is father dying, [he] almost [got] divorced," that "[h]e has two autistic sons[,] and he just had a lot of stuff going on." 6 The Commonwealth ultimately withdrew three of the alleged probation violations: failure to register as a sex offender, failure to pay the probation supervision fee, and failure to abide by all laws and court orders. 6
multiple probation conditions. The evidence included testimony
from the State police trooper, assigned to the violent fugitive
apprehension section, who apprehended the defendant in Florida,
and the Canton police detective who flew to Florida to
effectuate the defendant's return to Massachusetts.
The defendant testified at the hearing and contested some
of the probation violation allegations. He did not dispute that
he had left the Commonwealth and removed the GPS monitoring
device. Indeed, he admitted that he had "yanked" the GPS
monitoring device from his body and "threw it out the window" of
his motor vehicle after leaving his residence, and that he had
traveled to Florida. However, defense counsel attempted to
minimize those violations by pointing to the defendant's
desperation, based on his past lengthy incarceration and fear of
returning to jail, and citing to a defense witness's testimony
regarding the animosity displayed by the surrendering probation
officer toward the defendant.
Following the hearing, the sentencing judge determined that
the Commonwealth had sustained its burden of proving by a
preponderance of the evidence that the defendant left the
Commonwealth without permission, failed to maintain the GPS
monitoring device, failed to follow through with the sex
offender evaluation and treatment, failed to provide cellular
telephone information, and failed to report to probation. The 7
sentencing judge concluded that the Commonwealth did not prove
violations regarding the failure to attend Alcoholics Anonymous
meetings, to complete a drug and alcohol program, and to use
extraordinary efforts to find employment. The sentencing judge
imposed a sentence of five to nine years in State prison.
The defendant filed a motion to reconsider, asking that a
lower maximum on his sentence be imposed, consistent with the
five- to-six year sentence that a prior Superior Court judge had
purportedly suggested. The motion to reconsider was denied. In
January, 2016, the defendant filed a motion requesting a "new
probation revocation hearing" (motion for a new hearing),
contending that the sentencing judge failed to ascertain whether
the two factual stipulations made by the defendant were knowing
and voluntary. The sentencing judge denied the motion. This
appeal ensued.
Discussion. 1. Validity of stipulation to two alleged
violations. Citing Sayyid, the defendant contends that he is
entitled to a "new probation revocation hearing" because his
stipulation to the removal of the GPS monitoring device and
flight to Florida was not knowing and voluntary. In Sayyid, we
held that "a defendant's agreement to waive a probation
[violation] hearing -- such as by stipulating to violations --
must be knowing and voluntary and that such waiver can be
assessed under the totality of the circumstances." Id. at 489. 8
There, we determined that the defendant's stipulation to
multiple violations was not knowing and voluntary, where he was
mentally impaired and there was other evidence in the record of
his lack of understanding of the ramification of the
stipulation. Id. at 492. For the following reasons, we
conclude that Sayyid is inapplicable in the instant case.
Sayyid stands for the proposition that in a probation
violation proceeding, "a stipulation to probation violations
resulting in waiver of a hearing must be knowing and voluntary"
(emphasis supplied). Id. at 480. Here, the defendant did not
waive the hearing. To the contrary, the sentencing judge held a
two-day hearing at which the Commonwealth presented testimony
from five witnesses and entered nine exhibits into evidence.
Defense counsel cross-examined each witness and called two
witnesses to testify on the defendant's behalf.7 In addition,
the defendant testified, challenged the validity of various
allegations, and contended in closing argument that the
Commonwealth had not met its burden of proving certain
allegations. As the sentencing judge stated in denying the
motion for a new hearing, "[T]he defendant proceeded to the
7 At the hearing, the defendant's therapist testified that she diagnosed him as suffering from depression and "PTSD" -- posttraumatic stress disorder -- that presented in the form of fear of returning to jail. Her testimony was offered to explain why the defendant had removed his GPS monitoring device and fled to Florida. 9
contested revocation hearing as he had opted; [and] evidence
embodied in the two factual stipulations was presented to the
court during the course of the hearing, which he was free to
challenge, minimize, or contradict."
In short, unlike Sayyid, in which the defendant waived the
hearing itself -- i.e., the process that was due to him -- the
defendant here received all of the due process to which he was
entitled. See Commonwealth v. Durling, 407 Mass. 108, 111-114
(1990) (detailing the minimum requirements of due process at a
probation violation hearing). Where the defendant did not waive
the hearing, Sayyid is inapposite.8
Of further note, the defendant's argument ignores the
distinction between stipulating to waive a procedure that
carries with it certain constitutional protections (e.g.,
waiving a probation violation hearing, waiving trial by jury, or
waiving the right to counsel) and stipulating to a fact. See
Commonwealth v. Myers, 82 Mass. App. Ct. 172, 181-182 (2012).
8 At oral argument, the defendant contended that his claim of a due process violation falls squarely within the holding in Sayyid. However, he argued that, in the alternative, an expansion of Sayyid would be warranted. We decline the defendant's invitation, and we note that our ruling in Sayyid does not preclude a judge from accepting a factual stipulation at a probation violation hearing without first conducting a colloquy or inquiry into whether the defendant agreed to the stipulation knowingly and voluntarily. To the contrary, as detailed supra, Sayyid applies only to stipulations "resulting in waiver of a [probation violation] hearing." Sayyid, 86 Mass. App. Ct. at 480. 10
The latter carries no constitutional implication. Sayyid, by
contrast, was concerned with the waiving of constitutional
protections without some safeguard.
2. Ineffective assistance of counsel. The defendant also
contends that defense counsel rendered ineffective assistance by
erroneously advising him that if he stipulated to removing the
GPS monitoring device and leaving the Commonwealth, the judge
would sentence him to not more than five to six years in State
prison. This claim is unpersuasive.
To sustain a claim of ineffective assistance of counsel,
the defendant must show that the behavior of counsel fell below
that of an "ordinary fallible lawyer" and that such failing
"likely deprived the defendant of an otherwise available,
substantial ground of defence." Commonwealth v. Saferian, 366
Mass. 89, 96 (1974). See Commonwealth v. Millien, 474 Mass.
417, 432 (2016) (second prong of ineffective assistance test met
if there is substantial risk of miscarriage of justice arising
from counsel's failure).
The defendant did not raise the issue of ineffective
assistance of counsel, or cite to legal authority supporting
such an argument, in any posttrial motion.9 Instead, the
9 In his motion for a new hearing the defendant contended, in part, that he had stipulated to two of the alleged probation violations because his counsel had advised him that the judge would "cap" his sentence at five to six years in State prison. 11
defendant raises this claim here on appeal, relying on the
affidavits he had submitted in support of his motion for a new
hearing. Claims for ineffective assistance of counsel are
disfavored if they are raised for the first time on direct
appeal. Commonwealth v. Zinser, 446 Mass. 807, 811 (2006).
Such a claim "should only be brought on direct appeal when the
factual basis of the claim appears indisputably on the trial
record." Commonwealth v. Keon K., 70 Mass. App. Ct. 568, 573-
574 (2007). This is not such a case.
We conclude that defense counsel's strategy at the
probation violation hearing of explaining the reasons for the
defendant's departure from the Commonwealth and the GPS
violation was not an unreasonable decision. See Commonwealth v.
Rondeau, 378 Mass. 408, 413 (1979) (courts will not "second
guess" counsel's "arguably reasoned tactical or strategic
judgments," but will require that counsel's judgments be
"manifestly unreasonable" in order to find ineffective
assistance of counsel) (quotations omitted). This is
particularly so where the defendant did not argue below, or to
this court, that he had any viable defense to those alleged
violations. Such an argument would have been futile in view of
Thus, he argued, those stipulations "cannot be deemed to have been a knowing and intelligent waiver of his due process rights." He did not claim, however, that his counsel's conduct constituted ineffective assistance of counsel and did not cite legal authority relating thereto. 12
the overwhelming evidence introduced at the probation violation
hearing. Where the defendant offers no viable defense to the
probation violations, he cannot demonstrate that the factual
stipulations, even if prompted by reliance on allegedly
unreasonable assurances of a sentence capped at five to six
years in State prison, likely deprived him of an otherwise
available, substantial ground of defense.
The defendant's argument further ignores that, as discussed
supra, the sentencing judge conducted an extensive probation
violation hearing. Not only did the Commonwealth present strong
and unchallenged evidence proving the violations, but also
defense counsel tested the Commonwealth's witnesses and evidence
on cross-examination and presented evidence attempting to
mitigate the seriousness of the violations. The defendant also
testified and admitted to the very violations at issue. For all
of these reasons, the defendant's claim of ineffective
assistance is unavailing.
3. Reference to restraining orders in sentencing. The
defendant argues that the sentencing judge impermissibly
considered the existence of restraining orders in crafting the
five- to nine-year State prison sentence. As the defendant did
not raise this claim before the judge at sentencing, in his
motion for reconsideration, or in his motion for a new hearing,
our review is limited to whether any alleged error created a 13
substantial risk of a miscarriage of justice. See Commonwealth
v. Lender, 66 Mass. App. Ct. 303, 307 (2006).
The sentencing judge's observation regarding entries on the
defendant's board of probation record was not improper. See
ibid. Viewed in context, the brief reference to the restraining
orders was relevant to the sentencing judge's discretionary
decision whether to revoke or modify the conditions of probation
and did not serve as a basis for the sentence imposed. See
Commonwealth v. Herrera, 52 Mass. App. Ct. 294, 295 (2001). We
discern no error and are confident that the sentencing judge
relied solely on legally acceptable criteria in fashioning the
sentence imposed in this case. Compare Commonwealth v. Johnson,
27 Mass. App. Ct. 746, 751-752 (1989).
Conclusion. The order revoking probation and imposing the
sentence and the orders denying the motions for reconsideration
and for a new hearing are affirmed.
So ordered.