Commonwealth v. Francis Arbolay.

• Court: Massachusetts Appeals Court
• Decided: July 8, 2026
• Docket: 25-P-0642
• Status: Unpublished

Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

25-P-642

COMMONWEALTH

vs.

FRANCIS ARBOLAY.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from an order of a Superior Court

judge (probation judge) revoking his probation and imposing a

sentence. He claims that the probation judge erred by failing

to award him the full amount of jail credit for time he served

pending the disposition of his probation case, pursuant to G. L.

c. 279, § 33A. The defendant also contends that his due process

rights were violated because he was not given sufficient notice

that he remained on probation during his incarceration for a

parole violation. Finally, the defendant argues that the

probation judge abused his discretion by continuing the

defendant's probation violation hearing sua sponte so the

probation department could obtain a police report. We affirm. Background. In September 2018, the defendant pleaded

guilty to voluntary manslaughter, armed assault with intent to

murder, assault and battery with a dangerous weapon causing

serious bodily injury, and assault with a dangerous weapon. A

Superior Court judge sentenced the defendant to serve five to

eight years in State prison on the manslaughter charge and

awarded him 966 days credit for time served. On the remaining

charges, the defendant was placed on two years of supervised

probation to begin from and after his committed sentence. He

signed an order of probation conditions (probation order) that

stated his probation period began upon his release from

incarceration.

On January 3, 2022, the defendant was paroled from his

prison sentence, and his probation began the same day. The

defendant again signed the probation order, both at the bottom

of the form and under a line stating that his two-year period of

probation was from January 3, 2022, to January 3, 2024. In

March or April of 2022, the defendant violated his parole by

testing positive for drugs, and he was reincarcerated.1

On December 30, 2022, while still incarcerated after his

parole was revoked, the defendant was arraigned in District

1 The record does not provide an exact date of his parole violation.

2 Court on two criminal charges based on allegations that he

solicited another inmate to help him carry out a plan to murder

his girlfriend upon his release. A District Court judge allowed

the Commonwealth's motion to seal and impound the police report

filed in support of the complaint. While awaiting trial on

these charges, the defendant was detained, initially pursuant to

G. L. c. 276, § 58A and later in lieu of $50,000 bail.

On November 2, 2023, the Superior Court probation

department issued a notice of alleged probation violation and

hearing to the defendant based on the new criminal charges. At

that time, the defendant had been held in custody for over ten

months on the new charges, which were still pending. About two

months remained before the January 3, 2024 termination date of

his probation. On November 13, 2024, after an initial probation

surrender hearing, a Superior Court judge ordered the defendant

detained pending his final surrender hearing.

On January 19, 2024, the probation judge held a hearing on

the alleged probation violations. A probation officer presented

the following evidence: (1) the defendant's order of probation,

(2) the defendant's board of probation record, (3) the notice of

violation, (4) the Superior Court indictments charging

solicitation to commit a crime and intimidation of a witness,

and (5) the Commonwealth's motion to seal and impound the police

3 report relating to the crimes alleged in the indictments. The

probation officer told the probation judge that the police

report itself was unavailable because of the order of

impoundment. The defendant argued that the evidence submitted

failed to prove by a preponderance of the evidence that he

violated his probation because the hearsay evidence was not

substantially reliable. After reviewing the evidence, the

probation judge ordered the Commonwealth, through the district

attorney's office or the police department, to produce a copy of

the impounded police report. He also sua sponte ordered the

hearing be continued to a further date to allow for production

of the report. The defendant objected to both orders.

On February 5, 2024, the probation violation hearing

resumed. The probation officer offered in evidence the

previously impounded police report, which the probation judge

accepted over the defendant's objection. The probation judge

then continued the matter for a further date at the defendant's

request. On March 28, 2024, the probation judge received

additional evidence from the probation department, including

grand jury transcripts and exhibits.

On March 29, 2024, the probation judge found the defendant

in violation of his probation. After hearing arguments from

both parties, he revoked the defendant's probation and imposed

4 concurrent State prison sentences of seven to nine years on the

charge of assault with intent to murder, three to five years for

assault and battery with a dangerous weapon causing serious

bodily injury, and two to three years for assault with a

dangerous weapon. The probation judge awarded the defendant

credit for the 137 days he had served from November 13, 2023, to

March 29, 2024.

On May 2, 2024, the defendant pleaded guilty to the pending

criminal charges. The plea judge sentenced him to serve a term

of four to five years in State prison for soliciting to commit a

crime and a term of five to seven years in State prison for

intimidation of a witness. She ordered the sentences to be

served concurrently with each other and with the sentences

imposed by the probation judge. The plea judge awarded the

defendant 318 days credit for time served while the criminal

charges were pending.

Discussion. 1. Sentencing credit. Under G. L. c. 279,

§ 33A, a defendant who is held in custody pending the

disposition of a criminal case is entitled to have that time

credited. "Criminal defendants have a right to have their

sentences reduced by the amount of time they spend in custody

awaiting a trial . . . . However, time spent in custody

awaiting trial for one crime generally may not be credited

5 against a sentence for an unrelated crime." Commonwealth v.

Milton, 427 Mass. 18, 23-24 (1998). "A defendant in custody

awaiting trial on multiple unrelated cases is entitled to apply

the jail credit to only one case; however, a judge has

discretion to award jail credit to multiple cases upon a timely

request." Commonwealth v. Pearson, 95 Mass. App. Ct. 724, 727

(2019).

The defendant argues that he was deprived erroneously of

318 days of credit for the time he was held in custody following

his District Court arraignment on the criminal charges that

triggered his violation of probation and the date the probation

department issued the notice of violation. He claims that

because the 318 days credit was applied to his shorter sentence

on the new criminal case, it was effectively "dead time," from

which he received no benefit. We disagree.

The defendant received credit for his time served, which

went either toward his new criminal sentence or his probation

violation sentence. From his District Court arraignment on

December 30, 2022, until his sentencing on the new charges on

May 2, 2024, the defendant was held a total of 490 days. Adding

the 137 days credit on the probation violation sentence to the

318 days credit on the new criminal sentence, the defendant

received a total of 455 days credit for time served on both

6 cases. Although there is a thirty-five-day difference between

the credit granted by the judges and the total time the

defendant was held on these cases, the defendant was not

entitled to jail credit on the criminal charges once he began

serving his sentence on the probation violation case. See G. L.

c. 279, § 33A; Pearson, 95 Mass. App. Ct. at 726 (defendant

entitled to credit for time awaiting trial unless serving

committed sentence for unrelated offenses). The 318 days credit

on the new criminal sentence would only be "dead time" if it

were not credited against any sentence. See Milton, 427 Mass.

at 21 n.4. We thus discern no error in the probation judge's

allocation of jail credit. See Pearson, 95 Mass. App. Ct. at

727.

2. Notice of probation status. "The principles of due

process apply to probation revocation proceedings."

Commonwealth v. Ruiz, 453 Mass. 474, 478 (2009). Due process

requirements include that defendants be given fair notice as to

"when their actions or omissions will constitute a violation of

their probation." Id. at 479. The defendant contends that his

due process rights were violated when his probation continued

unabated during his incarceration for his parole violation.

Again, we disagree.

7 The defendant's probation order plainly stated his two-

year period of probation was from "1/3/2022 -- 1/3/2024." He

signed the probation order directly under the notation stating

the applicable dates. The probation order also stated that the

defendant was required to "obey all local, state, and federal

laws." Therefore, the defendant was given clear notice of

"when" his alleged criminal conduct would constitute a violation

of his probation. Nothing in the probation order suggests that

probation would be stayed for an unrelated period of

incarceration, such as for a parole violation. To the contrary,

reading such a stay into the probation order would violate due

process protections that mandate "only a judge has the authority

to modify or alter the terms of a defendant's probation."

Commonwealth v. Lally, 55 Mass. App. Ct. 601, 603 (2002).

3. Sua sponte continuance of probation hearing.

"[S]ubsequent convictions or guilty pleas render moot an

appellate claim that a judge erred in determining that a

probationer had violated the conditions of his probation by

committing a new offense." Commonwealth v. Pena, 462 Mass. 183,

187 (2012). The defendant asserts that the hearing judge abused

his discretion by continuing the hearing, sua sponte and over

the defendant's objection, so that the probation officer could

obtain the police report underlying the new criminal charges.

8 We need not address the substance of this argument, however,

because the defendant's subsequent guilty plea to the charges in

question renders his claim of error moot.

Order revoking probation and imposing sentence affirmed.

By the Court (Grant, Walsh & Brennan, JJ.2),

Clerk

Entered: July 8, 2026.

2 The panelists are listed in order of seniority.