Commonwealth v. Jason W. Gentry.

• Court: Massachusetts Appeals Court
• Decided: October 11, 2023
• Docket: 22-P-0441
• Status: Unpublished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

22-P-441

COMMONWEALTH

vs.

JASON W. GENTRY.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from a Superior Court judge's order

finding him in violation of probation and revoking probation.

The defendant argues that (1) the judge erred in relying on

unreliable hearsay and insufficient evidence and (2) his

probation conditions were unconstitutionally vague. We affirm.

Background. The defendant pleaded guilty to eight 1 counts

of cruelty to animals (G. L. c. 272, § 77) and one count of

unlicensed operation of a kennel (G. L. c. 140, § 137A). On

August 29, 2018, he was sentenced to two and one-half years in

the house of correction, suspended for three years with

probation. Among the conditions of his probation were that he

1 The defendant initially pleaded guilty to twelve counts of animal cruelty but later withdrew his guilty pleas as to four counts. The Commonwealth filed nolle prosequis as to those four counts. was required to "notify the probation officer immediately of a

change of residence or employment," and he could not "have

possession, custody, control, own or reside with any animals"

except for four dogs, each identified by breed, named

"Sabooboo," "Roman," "Rex," and "Fade."

Based on the evidence presented at the final surrender

hearing on October 15, 2021, the judge could have found as

follows. The defendant notified probation that his primary

residence was at an address in Swampscott and that he stayed

"from time to time" at an address in Lynn. In June of 2021, his

probation officer learned from police reports that the defendant

often stayed at his girlfriend's home in Peabody. After reading

these reports, the probation officer had concerns that the

defendant was living at the Peabody address without having

notified probation. That month, the probation officer visited

the Peabody address "on four straight days at different times of

the day." On each occasion, the defendant's car was there.

During an interview on June 30, 2021, the probation officer

informed the defendant of the results of his investigation. The

defendant then admitted that he was living at three addresses:

the addresses in Swampscott and Lynn, as well as the address in

Peabody of which he had not previously notified probation. The

probation officer and the defendant went directly from the

probation office to each of the three addresses.

2 At the Swampscott address, which the defendant had notified

probation was his primary residence, the defendant brought the

probation officer to what he said was his bedroom. There was

very little clothing in the closet and no toiletries that would

be present if someone were living there. There were no dogs at

the Swampscott address.

At the Lynn address, there was a dog cage in the yard; in

the kitchen was another dog cage, containing a dog that appeared

to be one of the dogs with which the defendant's probation

conditions permitted him to reside. As the defendant escorted

the probation officer down a hallway, another resident opened a

door and the probation officer saw inside that room a cage

containing a "very unhappy, unpleasant pitbull" that was not one

of the dogs with which the defendant was permitted to reside.

The defendant's bedroom at that address contained an unmade bed

and shoes, clothing, and toiletries, corroborating his statement

that he stayed there.

At the Peabody address, on the back patio were two dogs

that the defendant said belonged to his girlfriend. The

defendant escorted the probation officer to a bedroom that the

defendant said was his, in which there was a dog crate

containing a dog that was "very aggressive and upset." The

defendant referred to it as a "police dog"; it was not the same

breed as any of the dogs with which the defendant's probation

3 conditions permitted him to reside. In the bedroom were

personal belongings including clothing and sneakers that

corroborated the defendant's statement that he lived there.

The judge concluded that the Commonwealth had "satisfied

its burden of proving more likely than not that there was both a

violation of the general condition" that the defendant notify

probation about changes in his residence and "of the special

condition that he not reside with any animals" except the four

specifically-permitted dogs. She found the defendant in

violation of the terms of his probation and revoked his

probation, sentencing him to eighteen months in the house of

correction on one count of animal cruelty. On the other counts,

she imposed a sentence, to run from and after the committed

term, of two and one-half years in the house of correction,

suspended for two years with two years of probation.

Discussion. We review to determine whether the judge

abused her discretion in finding, by a preponderance of the

evidence, that the defendant violated his probation conditions

and in revoking his probation. See Commonwealth v. Eldred, 480

Mass. 90, 101 (2018). The question is "whether the record

discloses sufficient reliable evidence to warrant the findings

by the judge." Commonwealth v. Jarrett, 491 Mass. 437, 440

(2023), quoting Commonwealth v. Morse, 50 Mass. App. Ct. 582,

594 (2000).

4 The defendant argues that the evidence was not sufficient

to show that he violated the terms of his probation, and that

the judge erred in relying on unreliable hearsay. The judge

heard uncontradicted testimony of the probation officer that,

until the probation officer confronted the defendant with the

results of the investigation, the defendant did not notify

probation that he was living at the Peabody address, and that at

both the Lynn and Peabody addresses the defendant was residing

with dogs not permitted by his probation conditions. That

provided sufficient nonhearsay evidence on which the judge could

base her finding that the defendant "more likely than not

violated the conditions of his probation." We defer to the

judge's assessment of the credibility of the probation officer's

testimony. See Commonwealth v. Tate, 490 Mass. 501, 505 (2022).

The defendant also argues that the terms of his probation

were unconstitutionally vague. Those conditions included that

he was required to notify probation of a change in his

"residence" and prohibited him from "resid[ing] with any

animals" other than the four dogs specified by name and breed.

Due process requires a probation condition to "provide

'reasonable guidance' as to the conduct prohibited so that

people of 'common intelligence' will understand its meaning"

(citation omitted). Commonwealth v. Ruiz, 453 Mass. 474, 479

(2009). The defendant's probation conditions did provide such

5 reasonable guidance, and he admitted to his probation officer

that he had a bedroom at an address of which he had not notified

probation.

Probation order dated October 15, 2021, affirmed.

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

Clerk

Entered: October 11, 2023.

2 The panelists are listed in order of seniority.