Com. v. Collins, 90-P-1348

• Decision Date: 19 December 1991
• Docket Number: No. 90-P-1348,90-P-1348
• Citation: 31 Mass.App.Ct. 679,583 N.E.2d 262
• Parties: COMMONWEALTH v. Vincent Francis COLLINS.
• Court: Appeals Court of Massachusetts

Page 262

583 N.E.2d 262

31 Mass.App.Ct. 679

COMMONWEALTH v. Vincent Francis COLLINS.

No. 90-P-1348.

Appeals Court of Massachusetts Hampden.

Argued June 7, 1991.

Decided Dec. 19, 1991.

Patricia A. O'Neill, Committee for Public Counsel Services, for defendant.

Elizabeth Dunphy Farris, Asst. Dist. Atty., for the Com.

Before ARMSTRONG, BROWN and GREENBERG, JJ.

BROWN, Justice.

On October 15, 1982, the defendant entered a plea of guilty to so much of an indictment for murder as charged manslaughter and was sentenced to M.C.I., Walpole, for the time he had already served (2,536 days) plus three and one-half years, which was suspended with probation imposed for three and one-half years. The supervision of the defendant's probation was thereafter transferred by the Hampden County Superior Court probation department to the State of Connecticut pursuant to G.L. c. 127, § 151A(2). ¹ In the normal course of events, the sentence would have expired on April 15, 1986. On July 25, 1984, however, while still under the supervision of the Connecticut authorities, the defendant pled guilty to five counts of robbery in the first degree and two counts of reckless endangerment in the first degree. He was sentenced to seventeen years in prison (later reduced to concurrent ten-, eight-, and one-year sentences) and committed to the Connecticut Correctional Institution in Somers, Connecticut. Upon notification of these subsequent offenses the Hampden County probation department obtained on February 15, 1985, a warrant for surrender for violation of probation. The basis for the warrant was the allegation that the conduct underlying the Connecticut convictions was itself a violation of the defendant's probation. Although Hampden County probation records indicated that the warrant was mailed on February 20, 1985, the warrant was never received by the Connecticut authorities. (Nor is there any indication that the warrant was returned to the Hampden County probation department.) A duplicate warrant was issued on September 7, 1988.

The defendant was released from incarceration in Connecticut on December 19, 1989, and was returned on March 21, 1990, to the custody of the Hampden County probation department pending hearing on his probation violation. The defendant thereafter filed a motion to dismiss the revocation proceedings, primarily on due process grounds. ² The motion was denied by a Superior Court judge, and the defendant was found to be in violation of his probation. In ruling on the motion the judge found that the mailing of the warrant by the Massachusetts authorities on February 20, 1985, created a presumption that it was received at the Connecticut facility and that the defendant suffered no prejudice from the administrative mix-up. This appeal ensued.

The defendant contends on appeal that the Commonwealth's delay in commencing probation revocation proceedings until more than five years after commission of the offenses upon which the revocation was based, and until almost four years after his probation would have expired, was unreasonable and a violation of his due process rights under the Fourteenth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. In the circumstances of this case, we hold that there was no violation of the defendant's constitutional rights.

Under Massachusetts law the court has the power to extend or revoke probation within a reasonable time after the expiration of the probationary period. Commonwealth v. Sawicki, 369 Mass. 377, 383-385, 339 N.E.2d 740 (1975). Commonwealth v. Odoardi, 397 Mass. 28, 35-36, 489 N.E.2d 674 (1986). Although the Commonwealth could have commenced revocation proceedings immediately after notice of the Connecticut convictions, see Rubera v. Commonwealth, 371 Mass. 177, 180-181, 355 N.E.2d 800 (1976), it was not compelled to do so. ³ What is reasonable is determined on a case-by-case basis. Commonwealth v. Sawicki, 369 Mass. at 385, 339 N.E.2d 740.

Because of the loss of liberty entailed, a person whose probation is subject to revocation (like the person whose parole is subject to revocation, see Morrissey v. Brewer, 408 U.S. 471, 488, 92 S.Ct. 2593, 2603, 33 L.Ed.2d 484 [1972] ) is protected by the due process clause of the Fourteenth Amendment and is entitled to a revocation hearing. Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 1759, 36 L.Ed.2d 656 (1973). Commonwealth v. Durling, 407 Mass. 108, 112, 551 N.E.2d 1193 (1990). Where a probationer who has been at liberty is taken into custody and detained pending a final revocation hearing, he is entitled to a preliminary hearing at the time of arrest and detention, because of the loss of liberty entailed. See Gagnon v. Scarpelli, 411 U.S. at 781-782, 93 S.Ct. at 1759-60. See also Fay v. Commonwealth, 379 Mass. 498, 504, 399 N.E.2d 11 (1980) (no right to preliminary hearing where probationer not taken into custody prior to final hearing); Commonwealth v. Odoardi, 397 Mass. at 33-34, 489 N.E.2d 674 (no right to a preliminary hearing where defendant incarcerated on conviction on other charges). The final revocation hearing must be held "within a reasonable time after the [probationer] is taken into custody." Morrissey v. Brewer, 408 U.S. at 488, 92 S.Ct. at 2604. See Gagnon v. Scarpelli, 411 U.S. at 782, 93 S.Ct. at 1759.

Here, the defendant was imprisoned on his Connecticut convictions from the time his probation expired on April 15, 1986, until his release approximately three months prior to his return to custody in Massachusetts in March, 1990, and the alleged violation of probation itself was based upon those convictions. During much of that time (until December, 1988), moreover, the defendant was pursuing an appeal of those convictions in the Connecticut courts.

In this circumstance, the defendant suffered no violation of his right to due process under the Fourteenth Amendment to the United States Constitution. See Moody v. Daggett, 429 U.S. 78, 86-89, 97 S.Ct. 274, 278-80, 50 L.Ed.2d 236 (1976) (no denial of due process where parole revocation hearing delayed until after defendant's release from imprisonment on the convictions on which parole revocation based, because defendant's loss of liberty was result of imprisonment on the later convictions, not of delay in parole proceeding); United States v. Williams, 787 F.2d 1182, 1183-1184 (7th Cir.1986) (Sixth Amendment right to speedy trial held not violated where Federal authorities delayed in executing warrant for violation, based on a 1982 State conviction, of probation [which would have expired in October, 1983] until after defendant's release from State imprisonment in December 1984); Wasylak v. Thornberg, 744 F.Supp. 387, 388 (D.N.H.1990). See also United States v. Sackinger, 704 F.2d 29, 30-32 (2d Cir.1983); United States v. Scott, 850 F.2d 316, 320 (7th Cir.1988). Cf. Carchman v. Nash, 473 U.S. 716, 729-734, 105 S.Ct. 3401, 3408-11, 87 L.Ed.2d 516 (1985) (art. III of Interstate Agreement on Detainers, which requires authorities in receiving State upon request to bring prisoner to trial within 180 days, does not apply to outstanding probation violation charge where charge is based on offense for which prisoner serving sentence in other State).

In the circumstances, the delay also did not exceed a reasonable time under Massachusetts requirements. The defendant points out that he made his whereabouts known to the probation officer and requested a speedy disposition, and he argues that a delay in revocation proceedings in such circumstances is inherently prejudicial because it "work[s] against the goal of rehabilitation of the offender by...