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-118
COMMONWEALTH
vs.
JONATHAN M. ARCE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Jonathan M. Arce, appeals from orders
revoking his probation and denying his motions for
reconsideration issued by a judge in the drug court session of
the District Court.1 The defendant argues that the judge
impermissibly considered the nature of the probation violations
because they amounted to uncharged conduct, and that the judge
1See Deputy Chief Counsel for the Pub. Defender Div. of the Comm. for Pub. Counsel Servs. v. Acting First Justice of the Lowell Div. of the Dist. Court Dep't, 477 Mass. 178, 179-181 (2017) (describing drug court model and its "underlying philosophy that drug court defendants must exhibit an unconditional commitment to engage in and comply with a rigorous substance abuse treatment program"). should have recused himself from presiding at the probation
violation hearing. We affirm.
Background. On August 5, 2024, the defendant pleaded
guilty on complaints for possession of a class B substance,
G. L. c. 94C, § 34, and resisting arrest, G. L. c. 268, § 32B.2
The judge placed the defendant on probation for two years with
conditions including that he obey all laws, notify his probation
officer of any change of address within forty-eight hours,
undergo substance abuse treatment, enter and complete the drug
court program, and enter and complete a program at a residential
drug treatment facility.
Shortly thereafter, a notice of probation violation issued
alleging that on August 9, 2024, the defendant had been
discharged from the drug treatment facility; failed to make his
whereabouts known to his probation officer from August 9 to 13,
2024; and admitted using fentanyl, cocaine, and
tetrahydrocannabinol (THC) on August 14, 2024.
The same judge who had presided at the plea hearing held a
probation violation hearing on October 29, 2024. The defendant
waived his right to a hearing and admitted that he had violated
his probation. The judge found the defendant in violation of
2 The District Court maintained two separate dockets for the complaints. For purposes of appeal, however, the matters have been consolidated by this court.
2 probation for failing to attend or complete the program at the
residential drug treatment facility; failing to make his
whereabouts known to his probation officer from August 9 to 13,
2024; and using fentanyl, cocaine, and THC on August 14. On the
issue of disposition, the probation officer asked that the judge
revoke probation and sentence the defendant to eighteen months
in the house of correction. The probation officer informed the
judge that the defendant had "essentially ordered drugs" for
residents in the drug treatment facility, putting them at grave
risk, and a prosecutor echoed those concerns.3 In response,
defense counsel argued that the defendant "is not in denial
about what [he] did. He's very remorseful. He
understands . . . how it could have affected . . . a lot of
other innocent people." Counsel informed the judge that the
defendant "was not charged in relation to what happened at the
[drug treatment facility]," and asked the judge to sentence the
defendant to nine months in the house of correction. The judge
revoked the defendant's probation and imposed an eighteen-month
3 The prosecutor also argued that the judge should consider that the defendant's actions caused continued harm to the reputation of the drug court program. The judge explicitly stated that he did not consider the reputation of the drug court program or his own reputation.
3 sentence on the complaint charging resisting arrest and a
concurrent one-year sentence on the possession charge.
About six weeks later, the defendant filed motions for
reconsideration of the sentence, or in the alternative for
recusal of the judge, both of which the judge denied. The
defendant then filed motions to be permitted to file late
notices of appeal, which the judge allowed. The defendant
appeals.
Discussion. 1. Consideration of nature of probation
violation in sentencing. The defendant argues that in
sentencing him after revoking his probation, the judge
impermissibly considered "uncharged conduct," i.e., the
statement of the probation officer that the defendant had been
discharged from the residential drug treatment facility because
"he essentially ordered drugs" for the people in that facility.
The defendant also argues that the judge violated his due
process rights. We are not persuaded.
In sentencing a defendant after revocation of probation,
"[h]ow best to deal with the probationer is within the judge's
discretion." Commonwealth v. Eldred, 480 Mass. 90, 102-103
(2018), quoting Commonwealth v. Durling, 407 Mass. 108, 111
(1990). Rule 8(d) of the District/Municipal Court Rules for
Probation Violation Proceedings requires that the judge "shall
4 give such weight as [he] may deem appropriate" to factors
including "public safety" and "the nature of the probation
violation." See Commonwealth v. Zachairah Z., 494 Mass. 417,
424 n.2 (2024). The defendant stipulated that he had violated
the conditions of his probation, and thus there is no dispute
that he was discharged from the drug treatment facility and used
fentanyl, cocaine, and THC. After the probation officer and the
prosecutor argued that the defendant's conduct posed a danger to
other residents of the drug treatment facility, defense counsel
acknowledged that the defendant understood how his conduct could
have affected "other innocent people." In those circumstances,
the judge properly considered the nature of the defendant's
violation and the risk to public safety. See Commonwealth v.
King, 96 Mass. App. Ct. 703, 712 (2019) ("the judge was entitled
to consider the totality of the information placed before him in
considering the appropriate disposition").
2. Recusal. The defendant argues that the judge was
required to recuse himself from presiding at the probation
violation hearing. To begin with, we note that the defendant
did not request that the judge recuse himself until six weeks
after that hearing, and so the motion was untimely. If the
request was timely, we would review for an abuse of discretion
the judge's decision not to recuse himself. See Commonwealth v.
5 Rivera, 473 Mass. 1003, 1005 (2015). We would discern no such
abuse of discretion.
The defendant contends that the judge's comments at
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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-118
COMMONWEALTH
vs.
JONATHAN M. ARCE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Jonathan M. Arce, appeals from orders
revoking his probation and denying his motions for
reconsideration issued by a judge in the drug court session of
the District Court.1 The defendant argues that the judge
impermissibly considered the nature of the probation violations
because they amounted to uncharged conduct, and that the judge
1See Deputy Chief Counsel for the Pub. Defender Div. of the Comm. for Pub. Counsel Servs. v. Acting First Justice of the Lowell Div. of the Dist. Court Dep't, 477 Mass. 178, 179-181 (2017) (describing drug court model and its "underlying philosophy that drug court defendants must exhibit an unconditional commitment to engage in and comply with a rigorous substance abuse treatment program"). should have recused himself from presiding at the probation
violation hearing. We affirm.
Background. On August 5, 2024, the defendant pleaded
guilty on complaints for possession of a class B substance,
G. L. c. 94C, § 34, and resisting arrest, G. L. c. 268, § 32B.2
The judge placed the defendant on probation for two years with
conditions including that he obey all laws, notify his probation
officer of any change of address within forty-eight hours,
undergo substance abuse treatment, enter and complete the drug
court program, and enter and complete a program at a residential
drug treatment facility.
Shortly thereafter, a notice of probation violation issued
alleging that on August 9, 2024, the defendant had been
discharged from the drug treatment facility; failed to make his
whereabouts known to his probation officer from August 9 to 13,
2024; and admitted using fentanyl, cocaine, and
tetrahydrocannabinol (THC) on August 14, 2024.
The same judge who had presided at the plea hearing held a
probation violation hearing on October 29, 2024. The defendant
waived his right to a hearing and admitted that he had violated
his probation. The judge found the defendant in violation of
2 The District Court maintained two separate dockets for the complaints. For purposes of appeal, however, the matters have been consolidated by this court.
2 probation for failing to attend or complete the program at the
residential drug treatment facility; failing to make his
whereabouts known to his probation officer from August 9 to 13,
2024; and using fentanyl, cocaine, and THC on August 14. On the
issue of disposition, the probation officer asked that the judge
revoke probation and sentence the defendant to eighteen months
in the house of correction. The probation officer informed the
judge that the defendant had "essentially ordered drugs" for
residents in the drug treatment facility, putting them at grave
risk, and a prosecutor echoed those concerns.3 In response,
defense counsel argued that the defendant "is not in denial
about what [he] did. He's very remorseful. He
understands . . . how it could have affected . . . a lot of
other innocent people." Counsel informed the judge that the
defendant "was not charged in relation to what happened at the
[drug treatment facility]," and asked the judge to sentence the
defendant to nine months in the house of correction. The judge
revoked the defendant's probation and imposed an eighteen-month
3 The prosecutor also argued that the judge should consider that the defendant's actions caused continued harm to the reputation of the drug court program. The judge explicitly stated that he did not consider the reputation of the drug court program or his own reputation.
3 sentence on the complaint charging resisting arrest and a
concurrent one-year sentence on the possession charge.
About six weeks later, the defendant filed motions for
reconsideration of the sentence, or in the alternative for
recusal of the judge, both of which the judge denied. The
defendant then filed motions to be permitted to file late
notices of appeal, which the judge allowed. The defendant
appeals.
Discussion. 1. Consideration of nature of probation
violation in sentencing. The defendant argues that in
sentencing him after revoking his probation, the judge
impermissibly considered "uncharged conduct," i.e., the
statement of the probation officer that the defendant had been
discharged from the residential drug treatment facility because
"he essentially ordered drugs" for the people in that facility.
The defendant also argues that the judge violated his due
process rights. We are not persuaded.
In sentencing a defendant after revocation of probation,
"[h]ow best to deal with the probationer is within the judge's
discretion." Commonwealth v. Eldred, 480 Mass. 90, 102-103
(2018), quoting Commonwealth v. Durling, 407 Mass. 108, 111
(1990). Rule 8(d) of the District/Municipal Court Rules for
Probation Violation Proceedings requires that the judge "shall
4 give such weight as [he] may deem appropriate" to factors
including "public safety" and "the nature of the probation
violation." See Commonwealth v. Zachairah Z., 494 Mass. 417,
424 n.2 (2024). The defendant stipulated that he had violated
the conditions of his probation, and thus there is no dispute
that he was discharged from the drug treatment facility and used
fentanyl, cocaine, and THC. After the probation officer and the
prosecutor argued that the defendant's conduct posed a danger to
other residents of the drug treatment facility, defense counsel
acknowledged that the defendant understood how his conduct could
have affected "other innocent people." In those circumstances,
the judge properly considered the nature of the defendant's
violation and the risk to public safety. See Commonwealth v.
King, 96 Mass. App. Ct. 703, 712 (2019) ("the judge was entitled
to consider the totality of the information placed before him in
considering the appropriate disposition").
2. Recusal. The defendant argues that the judge was
required to recuse himself from presiding at the probation
violation hearing. To begin with, we note that the defendant
did not request that the judge recuse himself until six weeks
after that hearing, and so the motion was untimely. If the
request was timely, we would review for an abuse of discretion
the judge's decision not to recuse himself. See Commonwealth v.
5 Rivera, 473 Mass. 1003, 1005 (2015). We would discern no such
abuse of discretion.
The defendant contends that the judge's comments at
sentencing revealed "bias" against him. After defense counsel
argued that the defendant was remorseful and had not been
charged with any offense as a result of his conduct at the drug
treatment facility, the judge told the defendant,
"My concern has to do with those people who were at the program who were simply trying to get healthy and the potential ramifications as a result of . . . the actions that you chose to take and how that could have impacted them.
"And when I think about all of that, it's very scary to me, to be perfectly honest with you. There are other fathers, mothers, wives, husbands who have loved ones who are in those programs who are hoping that they get to see their loved one come back healthier than when they went in. And to the extent that you put that in jeopardy that day, that's what truly concerns me."
We are not persuaded by the defendant's claim that those
comments exhibited the judge's "bias against [the defendant],
distinguishing him from other . . . Drug Court defendants."
While a judge "must be ever vigilant to make certain that his
personal and private beliefs do not interfere with his judicial
role," Commonwealth v. Mills, 436 Mass. 387, 401 (2002), a judge
may "freely place on record his sentencing philosophy and
particularized sentencing rationale," Commonwealth v. White, 48
Mass. App. Ct. 658, 664 (2000). The judge's concern for the
6 welfare of other residents of the drug treatment facility did
not amount to bias against the defendant.
Orders dated October 29, 2024, revoking probation and December 11, 2024, denying motions for reconsideration, affirmed.
By the Court (Grant, Walsh & Brennan, JJ.4),
Clerk
Entered: May 5, 2026.
4 The panelists are listed in order of seniority.