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-789
COMMONWEALTH
vs.
LAZARO TRIZAN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Appealing from an order of a Superior Court judge revoking
his probation and imposing a sentence, the probationer, Lazaro
Trizan, claims that a series of errors denied him due process of
law. We affirm.
Background. Following guilty pleas to several offenses on
November 16, 2011, a judge sentenced the probationer to State
prison for five to seven years and a concurrent ten years of
probation. General conditions of probation included the
following requirement: "You shall obey all local, state and
federal laws and all Court orders." Nearly ten years later, the
probationer's ex-girlfriend in Florida reported to the police
that she received over one hundred telephone calls on her work
telephone from the probationer between July 15-19, 2021. On
November 19, 2021, a notice of alleged probation violation issued from the Superior Court, indicating the following basis
for the violation: "NEW OFFENSE: 11/4/2021 Leon County
Sheriff's Office Offe[n]se Tracking Number 3703047692:
Aggravated Stalking, Harassing Communication." After a final
surrender hearing on March 18, 2022, a judge found the
probationer violated his probation and sentenced him to two to
five years in State prison.
At the hearing, the probationer raised only one issue that
is pertinent here. He unsuccessfully objected on reliable
hearsay grounds to a four-page exhibit entitled, "SUMMARY OF
OFFENSES AND PROBABLE CAUSE AFFIDAVIT" (the exhibit). The
exhibit consisted of an affidavit prepared by a police detective
from Florida and alleged facts constituting probable cause to
charge the probationer with "three counts of harassing phone
calls and one count of aggravated stalking." A county judge in
Florida signed the document and found "[p]robable cause
sufficient." On appeal, the probationer repeats his hearsay
argument and raises four new, additional claims. We discern no
error by the judge in overruling the probationer's objection to
the document on hearsay grounds, see Commonwealth v. Durling,
407 Mass. 108, 115 (1990), and we discern no error and no
"substantial risk of a miscarriage of justice" relative to the
additional claims raised for the first time on appeal.
Commonwealth v. Freeman, 352 Mass. 556, 564 (1967).
2 Discussion. 1. Reliable hearsay. There is no "per se
prohibition on the use of hearsay evidence at probation
revocation hearings." Durling, 407 Mass. at 115. See
Guidelines for Probation Violation Proceedings in the Superior
Court § 6(B). "Unsubstantiated and unreliable hearsay cannot,
consistent with due process, be the entire basis of a probation
revocation. When hearsay evidence is reliable, however, then it
can be the basis of a revocation." Durling, supra at 118. "The
probation department may meet its burden of proof to establish a
violation solely through the admission of hearsay with
substantial indicia of reliability." Commonwealth v. Hartfield,
474 Mass. 474, 482 (2016).
We agree with the judge's determination that the challenged
exhibit was reliable. The exhibit included an affidavit, signed
under the pains and penalties of perjury, by a detective who
outlined the steps he took during an investigation. That
affidavit provided the following information: the victim
identified herself and met with the detective; she reported that
on July 6, 2021, the probationer appeared at her residence in
Florida, followed her, and attempted to forcibly stop her car in
traffic; she provided details of more than one hundred
unsolicited telephone calls received from the probationer
between July 15-19, 2021; she was unable to conduct business on
her office telephone because of the calls; she provided
3 telephone logs to the detective; she recognized one of three
numbers that called as belonging to the probationer; telephone
records obtained by the detective linked the two other numbers
from the telephone logs to the probationer; the telephone
records of all three telephone numbers confirmed that calls were
made to the victim's telephone and were consistent with the
dates and times in the call log of the victim's telephone; the
detective spoke by telephone with the probationer; and the
probationer admitted in that recorded telephone call with the
detective that he made the calls. Given the personal knowledge,
direct observations, the level of factual detail, the consistent
and corroborated information, and the circumstances supporting
the veracity of the allegations, the challenged exhibit
demonstrated the requisite "substantial indicia of reliability."
Hartfield, 474 Mass. at 484.
2. New claims. For the first time, the probationer raises
four additional claims. These claims fail to identify an error,
let alone a substantial risk of a miscarriage of justice. See
Freeman, 352 Mass. at 564.
(1) First, the probationer contends that the exhibit "did
not provide an adequate basis for an independent determination
of criminality." Based on the detailed factual summary in the
affidavit, the judge was "capable of making an independent
finding, at least to a reasonable degree of certainty, that the
4 defendant had violated a condition . . . of his probation" by
committing crimes in another jurisdiction. Commonwealth v.
Maggio, 414 Mass. 193, 198 (1993). See G. L. c. 233, § 70 ("The
courts shall take judicial notice of the law of the United
States or of any state, territory or dependency thereof or of a
foreign country whenever the same shall be material"); Fla.
Stat. § 365.16(1)(b)-(d) (1995) (prohibiting repeated telephone
calls); Fla. Stat. § 784.048(3) (2019) (prohibiting repeated
acts of following or communicating).
(2) The probationer also claims that he did not have "clear
notice" that the telephone calls risked violating Florida law.
The probationer was certainly aware that his conduct might
transgress the law because he had been charged with crimes and
was the subject of restraining orders under similar
circumstances in the past. Putting aside his prior interactions
with law enforcement and the courts, the probationer cannot rely
upon ignorance of the law in Florida, where he previously
resided before moving to Texas. See Haven v. Foster, 26 Mass.
112, 130 (1829) ("In all civil and criminal proceedings every
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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
22-P-789
COMMONWEALTH
vs.
LAZARO TRIZAN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Appealing from an order of a Superior Court judge revoking
his probation and imposing a sentence, the probationer, Lazaro
Trizan, claims that a series of errors denied him due process of
law. We affirm.
Background. Following guilty pleas to several offenses on
November 16, 2011, a judge sentenced the probationer to State
prison for five to seven years and a concurrent ten years of
probation. General conditions of probation included the
following requirement: "You shall obey all local, state and
federal laws and all Court orders." Nearly ten years later, the
probationer's ex-girlfriend in Florida reported to the police
that she received over one hundred telephone calls on her work
telephone from the probationer between July 15-19, 2021. On
November 19, 2021, a notice of alleged probation violation issued from the Superior Court, indicating the following basis
for the violation: "NEW OFFENSE: 11/4/2021 Leon County
Sheriff's Office Offe[n]se Tracking Number 3703047692:
Aggravated Stalking, Harassing Communication." After a final
surrender hearing on March 18, 2022, a judge found the
probationer violated his probation and sentenced him to two to
five years in State prison.
At the hearing, the probationer raised only one issue that
is pertinent here. He unsuccessfully objected on reliable
hearsay grounds to a four-page exhibit entitled, "SUMMARY OF
OFFENSES AND PROBABLE CAUSE AFFIDAVIT" (the exhibit). The
exhibit consisted of an affidavit prepared by a police detective
from Florida and alleged facts constituting probable cause to
charge the probationer with "three counts of harassing phone
calls and one count of aggravated stalking." A county judge in
Florida signed the document and found "[p]robable cause
sufficient." On appeal, the probationer repeats his hearsay
argument and raises four new, additional claims. We discern no
error by the judge in overruling the probationer's objection to
the document on hearsay grounds, see Commonwealth v. Durling,
407 Mass. 108, 115 (1990), and we discern no error and no
"substantial risk of a miscarriage of justice" relative to the
additional claims raised for the first time on appeal.
Commonwealth v. Freeman, 352 Mass. 556, 564 (1967).
2 Discussion. 1. Reliable hearsay. There is no "per se
prohibition on the use of hearsay evidence at probation
revocation hearings." Durling, 407 Mass. at 115. See
Guidelines for Probation Violation Proceedings in the Superior
Court § 6(B). "Unsubstantiated and unreliable hearsay cannot,
consistent with due process, be the entire basis of a probation
revocation. When hearsay evidence is reliable, however, then it
can be the basis of a revocation." Durling, supra at 118. "The
probation department may meet its burden of proof to establish a
violation solely through the admission of hearsay with
substantial indicia of reliability." Commonwealth v. Hartfield,
474 Mass. 474, 482 (2016).
We agree with the judge's determination that the challenged
exhibit was reliable. The exhibit included an affidavit, signed
under the pains and penalties of perjury, by a detective who
outlined the steps he took during an investigation. That
affidavit provided the following information: the victim
identified herself and met with the detective; she reported that
on July 6, 2021, the probationer appeared at her residence in
Florida, followed her, and attempted to forcibly stop her car in
traffic; she provided details of more than one hundred
unsolicited telephone calls received from the probationer
between July 15-19, 2021; she was unable to conduct business on
her office telephone because of the calls; she provided
3 telephone logs to the detective; she recognized one of three
numbers that called as belonging to the probationer; telephone
records obtained by the detective linked the two other numbers
from the telephone logs to the probationer; the telephone
records of all three telephone numbers confirmed that calls were
made to the victim's telephone and were consistent with the
dates and times in the call log of the victim's telephone; the
detective spoke by telephone with the probationer; and the
probationer admitted in that recorded telephone call with the
detective that he made the calls. Given the personal knowledge,
direct observations, the level of factual detail, the consistent
and corroborated information, and the circumstances supporting
the veracity of the allegations, the challenged exhibit
demonstrated the requisite "substantial indicia of reliability."
Hartfield, 474 Mass. at 484.
2. New claims. For the first time, the probationer raises
four additional claims. These claims fail to identify an error,
let alone a substantial risk of a miscarriage of justice. See
Freeman, 352 Mass. at 564.
(1) First, the probationer contends that the exhibit "did
not provide an adequate basis for an independent determination
of criminality." Based on the detailed factual summary in the
affidavit, the judge was "capable of making an independent
finding, at least to a reasonable degree of certainty, that the
4 defendant had violated a condition . . . of his probation" by
committing crimes in another jurisdiction. Commonwealth v.
Maggio, 414 Mass. 193, 198 (1993). See G. L. c. 233, § 70 ("The
courts shall take judicial notice of the law of the United
States or of any state, territory or dependency thereof or of a
foreign country whenever the same shall be material"); Fla.
Stat. § 365.16(1)(b)-(d) (1995) (prohibiting repeated telephone
calls); Fla. Stat. § 784.048(3) (2019) (prohibiting repeated
acts of following or communicating).
(2) The probationer also claims that he did not have "clear
notice" that the telephone calls risked violating Florida law.
The probationer was certainly aware that his conduct might
transgress the law because he had been charged with crimes and
was the subject of restraining orders under similar
circumstances in the past. Putting aside his prior interactions
with law enforcement and the courts, the probationer cannot rely
upon ignorance of the law in Florida, where he previously
resided before moving to Texas. See Haven v. Foster, 26 Mass.
112, 130 (1829) ("In all civil and criminal proceedings every
man is presumed to know the law of the land . . .").
(3) The probationer additionally claims that he did not
have "fair notice of the charges against him," but he took a
different position at the probation revocation hearing, where
defense counsel acknowledged that notice was not an issue. "The
5 [probationer's] contrary position in the trial court bars [his]
claim on appeal." Rabinowitz v. Schenkman, 103 Mass. App. Ct.
538, 541 (2023). See Commonwealth v. Ng, 489 Mass. 242, 255-256
(2022). The record also does not support the probationer's
current contention that the judge based her decision on the
probationer's "past history" and effectively denied him an
opportunity to be heard.
(4) Finally, the probationer contends that the judge erred
by finding the probationer in violation of his probation after
his probation term expired. "There can be no violation of
probation unless committed during the probationary period, but
it is settled in the Commonwealth that in suitable circumstances
probation may be revoked after that period. However, it must
occur within a 'reasonable' time." Commonwealth v. Baillargeon,
28 Mass. App. Ct. 16, 20 (1989). The record discloses the
following timeline: following the incidents in Florida detailed
in the affidavit in the exhibit, the probationer moved to Texas;
process issued from Florida on November 4, 2021; the ten-year
probation term ended on November 16, 2021; notice of the
probation violation issued on November 19, 2021; the initial
probation surrender hearing occurred on January 12, 2022; and
following one continuance the court rescheduled the final
probation surrender hearing to March 2022 "due to [the] State of
Emergency surrounding the Covid-19 virus." This timeline of
6 revocation is not unreasonable, especially given the multiple
jurisdictions, COVID-19 pandemic, and lack of prejudice to the
probationer.
Order revoking probation and imposing sentence affirmed.
By the Court (Green, C.J., Hand & Hodgens, JJ. 1),
Assistant Clerk
Entered: March 15, 2024.
1 The panelists are listed in order of seniority.