Commonwealth v. Jose A. Roman.

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-302

COMMONWEALTH

vs.

JOSE A. ROMAN.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from a District Court judge's order

revoking his probation. The judge ruled that the defendant

violated his probation by (1) committing new criminal offenses,

operation of a motor vehicle with a suspended license and

negligent operation of a motor vehicle, and (2) testing positive

for cocaine and failing, nine times, to appear for scheduled

drug testing. On appeal, the defendant claims that (1) the

judge erroneously relied on unreliable hearsay, (2) there was

insufficient evidence to find him in violation of the terms of

his probation, and (3) his due process rights were violated.

After reconsideration, we conclude that the evidence was

sufficient to support the violations based on the drug testing

and the new offense of operating with a suspended license.

However, because we cannot say with certainty that the judge would have revoked the defendant's probation absent the

violation for negligent operation, we remand for redetermination

and resentencing under Commonwealth v. King, 96 Mass. App. Ct.

703, 710-713 (2019). See Commonwealth v. Durling, 407 Mass.

108, 111 (1990).

Background. We recite the facts as presented at the

surrender hearing, reserving certain facts for later discussion.

After being convicted of drug-related offenses, the defendant

was placed on probation subject to conditions, including that he

(1) submit to random drug testing, (2) remain drug-free, and (3)

obey the law. He was alleged to have violated those conditions

by failing to comply with the drug testing requirements and

committing three motor vehicle offenses.

At the hearing on the probation violation, the defendant’s

probation officer testified that the defendant missed nine

random drug screens, offering the "results" of the drug tests to

prove these missed appointments, and that the defendant tested

positive for cocaine on October 21, 2021. The defendant's

counsel conceded the positive drug test and no-show

appointments.1

1 The defendant's counsel expressly stated that, "with regard to the screens, I concede the positive cocaine and concede the no- shows as well."

2 The Commonwealth also introduced an incident report (the

report) written by the police officer who responded to the scene

of the defendant's accident. According to the report, at

approximately 2:40 A.M. the officer arrived at the scene of a

single vehicle crash and found the defendant "sitting in the

median with leg and facial injuries"; the officer noted that

"only the driver's side and front airbags had deployed." The

defendant maintained that he was not the driver of the vehicle

but refused to provide the driver's name. The police searched

the area and found no one else.

The judge ruled that the Commonwealth had shown by a

preponderance of the evidence that the defendant violated the

terms of his probation. The judge confirmed in his finding of a

probation violation that, other than as specifically excluded,

the "exhibits meet the substantial reliability test."

Discussion. "The Commonwealth must prove a violation of

probation by a preponderance of the evidence." Commonwealth v.

Bukin, 467 Mass. 516, 520 (2014). "A determination whether a

violation of probation has occurred lies within the discretion

of the hearing judge." Id. at 519-520. Although "standard

evidentiary rules do not apply to probation revocation

hearings," a finding of a probation violation must be based on

reliable evidence. Durling, 407 Mass. at 117. "A judge may

rely on hearsay evidence at a probation violation hearing where

3 the evidence has substantial indicia of reliability."

Commonwealth v. Ogarro, 95 Mass. App. Ct. 662, 668 (2019). We

review for abuse of discretion. See Commonwealth v. Jarrett,

491 Mass. 437, 445 (2023), citing L.L. v. Commonwealth, 470

Mass. 169, 185 n.27 (2014).

1. Reliability of evidence. In assessing whether the

hearsay evidence is reliable, a hearing judge may consider:

"(1) whether the evidence is based on personal knowledge or direct observation; (2) whether the evidence, if based on direct observation, was recorded close in time to the events in question; (3) the level of factual detail; (4) whether the statements are internally consistent; (5) whether the evidence is corroborated by information from other sources; (6) whether the declarant was disinterested when the statements were made; and (7) whether the statements were made under circumstances that support their veracity."

Commonwealth v. Hartfield, 474 Mass. 474, 484 (2016). "There is

no requirement that hearsay satisfy all the above criteria to be

trustworthy and reliable." Commonwealth v. Patton, 458 Mass.

119, 133 (2010).

Because the defendant conceded the positive drug test and

no-show appointments for testing, we review to determine whether

the admission of such evidence was error, and if so, whether it

caused a substantial risk of miscarriage of justice. See

Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). There was no

error. The judge's finding that drug test results and no-show

appointments for testing were reliable was reasonably based on

4 (1) the high level of factual detail in the drug test results,

(2) the documents having been recorded close in time to the date

of the drug tests, and (3) corroboration by the probation

officer's personal experiences with and direct observations of

the defendant. See Commonwealth v. Eldred, 480 Mass. 90, 92-93

(2018) (judge reasonably determined probation officer's

testimony about positive drug test, as well as drug test results

themselves, constituted sufficiently reliable evidence). These

same factors support the judge's conclusion that the majority of

the police report, which was factually detailed, recorded close

in time to the crash, and based on the officer's observations,

was reliable.

2. Sufficiency of evidence. On appeal, we assess "whether

the record discloses sufficient reliable evidence to warrant the

findings by the judge that [the probationer] had violated the

specified conditions of his probation." Commonwealth v. Morse,

50 Mass. App. Ct. 582, 594 (2000). "In a probation revocation

hearing, the issue to be determined is not guilt beyond a

reasonable doubt but, rather, whether the probationer more

likely than not violated the conditions of his probation."

Commonwealth v. Kelsey, 464 Mass. 315, 324 (2013).

(a). Drug-testing violations. Here, the evidence was

sufficient to prove, by a preponderance of the evidence, that

the defendant violated his conditions of probation. The judge

5 reasonably relied on the drug test results, no-show

appointments, and probation officer's testimony in coming to

this conclusion. The probation officer's testimony corroborated

evidence of the defendant's positive drug test result and no-

show appointments. See Jarrett, 491 Mass. at 445 (officer's

testimony as to defendant's drug-related offense sufficient to

find defendant in violation of drug-free terms of probation). A

finding that the no-shows were willful was reasonably supported

by the officer's testimony that she "always" contacted the

defendant after each no-show and the Averhealth document showing

the dates on which the defendant failed to appear for scheduled

testing. See Rass Corp. v. Travelers Cos., 90 Mass. App. Ct.

643, 657 (2016).

(b). Motor vehicle offenses. Operating a motor vehicle

with a suspended license requires proof of three elements: (1)

operating a motor vehicle, (2) with a suspended license, (3)

with notice of the suspension. Commonwealth v. Royal, 89 Mass.

App. Ct. 168, 170 (2016). "Proof of operation of a motor

vehicle may 'rest entirely on circumstantial evidence.'"

Commonwealth v. Petersen, 67 Mass. App. Ct. 49, 52 (2006),

quoting Commonwealth v. Cromwell, 56 Mass. App. Ct. 436, 438

(2002). Here, the first element was met. The defendant,

injured on his face and legs, was alone at the scene of a single

vehicle accident in which only the driver's side airbags had

6 deployed, and there was no sign of another person. It did not

take a "leap of conjecture" to infer that the defendant was

operating the vehicle at the time of the crash. Commonwealth v.

Beltrandi, 89 Mass. App. Ct. 196, 202 (2016). See Commonwealth

v. Hilton, 398 Mass. 63, 67 (1986) ("A web of convincing proof

can be made up of inferences that are probable, not necessary"

[quotation omitted]); Cromwell, supra at 440. As to the second

element, we see no reason to disturb the judge's conclusion that

the police officer's report was substantially reliable. In the

report, the officer noted that the defendant's license was

suspended. Finally, the judge reasonably could have inferred

from the defendant's statements to the trooper that he knew his

license was suspended and, to avoid arrest, claimed that his

friend was driving. See Commonwealth v. Vick, 454 Mass. 418,

424 (2009), quoting Commonwealth v. Robles, 423 Mass. 62, 71

(1996) ("False statements to police may be considered as

consciousness of guilt if there is other evidence tending to

prove the falsity of the statements").

A finding of negligent operation requires proof that the

defendant (1) operated a motor vehicle (2) upon a public way (3)

negligently so that the lives or safety of the public might be

endangered. Commonwealth v. Ross, 92 Mass. App. Ct. 377, 379

(2017). Negligent operation "only requires proof that the

defendant's conduct might have endangered the safety of the

7 public, not that it in fact did," Commonwealth v. Ferreira, 70

Mass. App. Ct. 32, 35 (2007), but requires more than the "mere

occurrence of an accident." Osborne v. Hemingway Transp., Inc.,

28 Mass. App. Ct. 944, 945 (1990). Although the evidence

permitted a finding of operation, and the crash occurred on a

public way, we are not persuaded that the third element was met.

The evidence established only that the defendant, driving

without a license, crashed his car. While both the operating

while suspended and the accident are relevant to the assessment

of negligent operation, see Commonwealth v. Campbell, 394 Mass.

77, 83 n.5 (1985); Commonwealth v. Cohen, 27 Mass. App. Ct.

1210, 1211 (1989), we find no precedent establishing that they

are sufficient to show it. See Commonwealth v. Zagwyn, 482

Mass. 1020, 1022 (2019); Aucella v. Commonwealth, 406 Mass. 415,

418-419 (1990).

Because the record does not reveal that the trial judge

would have imposed the same sentence had he found only two of

the three violations, we are constrained to remand for

resentencing consistent with our decision.

3. Due process claim. We review the defendant's due

process challenge "to determine whether the error, if any, was

'harmless beyond a reasonable doubt.'" Commonwealth v. Kelsey,

464 Mass. 315, 319 (2013), quoting Commonwealth v. Bacigalupo,

455 Mass. 485, 495 (2009). "Due process requires a judge to

8 issue a written statement supporting a probation revocation to

help insure accurate factfinding with respect to any alleged

violation and provide[] an adequate basis for review to

determine if the decision rests on permissible grounds supported

by the evidence" (quotation omitted). Ogarro, 95 Mass. App. Ct.

at 667. This "is not an inflexible or invariably mandatory

requirement . . . The judge's statement is sufficient if it

provides the probationer with reasons for the decision, adequate

for the probationer to obtain a meaningful review." Id.

(quotation omitted).

Although it would have been preferable for the judge to

mark the relevant boxes on the probation violation finding and

disposition form, we are satisfied that the defendant's due

process rights were not violated. The judge thoughtfully

assessed the proffered hearsay evidence in the report and in

screenshots offered by the Commonwealth, reasonably excluding

some of it, and noted on the form that the remaining exhibits

"meet the substantial reliability test." See Fay v.

Commonwealth, 379 Mass. 498, 504-505 (1980) (judge's transcribed

review of evidence satisfied due process requirements).

Corroborated by the hearing record, the judge's written finding

was sufficient to indicate the specific reasons he found the

hearsay evidence sufficiently reliable. See Commonwealth v.

Bain, 93 Mass. App. Ct. 724, 726, 727 (2018) (judge's findings

9 complied with due process where judge left line blank meant "to

be filled in by the judge with the specific evidence relied on

to support the violation finding"). See also Morse, 50 Mass.

App. Ct. at 592 (judge adequately provided reasoning for

probation revocation by making written finding that plainly

derived from reliable and sufficient evidence). Taken together,

these steps satisfied due process requirements and provided for

an adequate basis for the defendant to receive meaningful

review.

On the order revoking probation and imposing sentence, so

much of the order that finds violations based on the drug

testing and operating with a suspended license is affirmed, and

the remaining finding of violation is reversed. The sentence is

vacated and the case is remanded to the District Court for

resentencing consistent with this memorandum and order.

So ordered.

By the Court (Blake, Hershfang & D’Angelo, JJ.2),

Clerk

Entered: June 9, 2023.

2 The panelists are listed in order of seniority.