Com. v. Faulkner

• Decision Date: 15 July 1994
• Citation: 638 N.E.2d 1,418 Mass. 352
• Parties: COMMONWEALTH v. Craig FAULKNER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1

638 N.E.2d 1

418 Mass. 352

COMMONWEALTH v. Craig FAULKNER.

Supreme Judicial Court of Massachusetts Norfolk.

Argued March 9, 1994.

Decided July 15, 1994.

Jane Larmon White, Committee for Public Counsel Services, Boston, for defendant.

Joseph J. Brodigan, Asst. Dist. Atty., for Com.

Before LIACOS, C.J., and ABRAMS, NOLAN, O'CONNOR and GREANEY, JJ. LIACOS, Chief Justice.

The defendant appeals from an order of a judge in the District Court Department revoking probation that the defendant had been serving on various convictions and committing the defendant to serve the suspended part of the sentences for those convictions. On appeal, the defendant argues as grounds for reversal that imposition of the sentence for one of the convictions violated constitutional and common law prohibitions against double jeopardy, and that he was denied his right to the assistance of counsel at his probation revocation hearing. We reverse.

The relevant facts are largely undisputed. The defendant was convicted after a bench trial in the Quincy Division of the District Court Department on a complaint (no. 3679) on October 3, 1989, and sentenced to one year in a house of correction. ¹ The sentence was suspended and the defendant was placed on probation, originally scheduled for termination on October 6, 1992. Later, on November 28, 1989, the defendant was convicted after a bench trial, again in the Quincy District Court, on another complaint (no. 6779). He was sentenced to unsupervised probation until November 27, 1990, and was ordered to pay restitution.

The defendant's brushes with the law continued. On November 14, 1990, the defendant was convicted after a bench trial in the Quincy District Court on a third complaint (no. 8445), charging him with two offenses. For each offense, he was sentenced to two and one-half years in a house of correction, eighteen months to be served and the balance suspended. The sentences for these two offenses were to be served concurrently. For no. 8445, the defendant was to serve probation until April 28, 1994. On the same date, November 14, 1990, the defendant also was convicted on no. 8806. The defendant was sentenced to two and one-half years in a house of correction, eighteen months to be served and the balance suspended. For this offense, the defendant was to serve probation until April 28, 1994. The sentences for no. 8445 and no. 8806 were to be served concurrently.

The record reveals that the defendant's probation on no. 3679 was revoked on November 15, 1990, because of a violation of the terms of his probation (presumably, the violation was the conviction on no. 8445 and no. 8806). On November 27, 1990, as a result of violating his probation, the defendant was ordered to serve the one-year sentence on no. 3679 that had been suspended. The District Court judge ordered the one-year sentence on no. 3679 to be served concurrently with the sentence in no. 8445, for which the defendant stood committed to a house of correction for eighteen months.

At some point after November, 1990, the defendant was released from the house of correction. On June 24, 1992, the defendant appeared before a judge in the Quincy District Court for arraignment (no. 6593) on charges for offenses alleged to have occurred on the previous day. During that session, the clerk informed the judge that there were additional charges pending against the defendant (no. 5233 and no. 3550), for offenses alleged to have occurred in January, 1992. The defendant entered pleas of not guilty to all charges.

After arraignment on no. 6593, no. 5233, and no. 3550, the prosecutor, the defense attorney and the judge discussed the matter of bail for the defendant. During that discussion, it was brought to the judge's attention that there was a violation of a probation warrant (surrender notice) outstanding against the defendant, dated February 21, 1992. A hearing had been scheduled for March 3, 1992, but the defendant did not appear in court on that date. The defense attorney had been informed of the outstanding revocation of probation matter when she arrived at court for the defendant's arraignment on June 24, 1992, but not before. She was further informed that the probation officer in charge of the defendant's case intended to request that the judge hear the matter on that day.

The judge informed the defense attorney and the prosecutor that he would hear the revocation of the probation matter forthwith. The defense attorney requested that the judge continue the matter, asserting that the defendant had not received notice of the March 3, 1992, hearing and, thus, he was not in default. ² Furthermore, she argued, the defendant had the right to assistance of counsel at a probation revocation hearing, and if she did not have the opportunity to prepare adequately for the hearing, the defendant effectively would be denied that right. The defendant's probation officer stated that notice had been mailed to the defendant's last known address and that one of the conditions of the defendant's probation was that he must notify the probation officer of any change of address. The judge denied the request for a continuance and, over the defense attorney's repeated objections, proceeded with the probation revocation hearing.

Paul Willie, a probation officer of the Quincy District Court, testified that he was supervising the defendant's probation on no. 8806, no. 8445, no. 3679, and no. 6779. Willie summarized the terms of the defendant's probation: he was to obey all local, State, and Federal laws and court orders; he was to report to his probation officer at such times and places as required; he was to notify his probation officer of any change of address; and he was to abstain from alcohol and drug use and submit to random drug testing. Willie then testified to the alleged violations by the defendant of his probation: he failed to report to probation from February 12, 1992, to the time of trial; he failed to report for drug testing on February 21, 1992; and he was arrested in Hingham on January 28, 1992, on various charges. ³ Finally, Willie read the Hingham police report regarding the January 28 incidents. ⁴

The defendant's attorney again requested a continuance, arguing that the defendant had a right to representation by a prepared attorney. The judge responded that, by failing to appear at the originally scheduled hearing, the defendant "essentially gave up his right to be represented." The judge asked the defendant whether he had anything to present on his own behalf. The defendant's attorney, after conferring with the defendant, responded that the defendant would like to testify on his own behalf, but would not do so until after he had an opportunity to prepare with counsel. The defense attorney then made a closing argument, summarizing the explanations for the alleged violations that she might have been able to proffer if she had had the opportunity to prepare.

The judge concluded that the defendant had violated the terms of his probation and committed him to serve the balance of his outstanding sentences. A dialogue took place among the judge, the probation officer, the clerk, the prosecutor, and the defense attorney regarding which sentences were outstanding and how they should be served. It appears that the defendant himself attempted to explain to the judge that he had already served one year for no. 3679, and as a result he should not be required to serve more time for that conviction. However, the judge ordered him to serve one year for 3679, and one year for no. 8806 and no. 8445 concurrently, from and after the year for no. 3679. ⁵

The defendant requested a stay of the sentences pending appeal, which the judge denied. We transferred the case from the Appeals Court on our own motion. ⁶ We now reverse.

The Commonwealth concedes that the imposition of a one-year sentence on number 3679 was error, and we agree. We conclude that the defendant's double jeopardy rights were violated, and we do not discuss that issue further. ⁷ Thus, the defendant's appeal poses only two questions that we must answer. The first is whether the defendant has the right to the assistance of an attorney at a probation revocation hearing. The second is whether, in the circumstances of this case, a probation officer's assertion that he mailed a surrender notice to the defendant's last known address demonstrates adequate notice to the defendant which would justify denying the defendant's request for a continuance of the probation hearing.

The defendant argues that he has a right to assistance of counsel at his probation revocation hearing, and that his right effectively was denied because the judge did not allow his attorney time to prepare. The Commonwealth contends that we should analyze this issue as a claim of ineffective assistance of counsel, see Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974), not as a claim of the denial of the right to counsel. We decline to treat this case as a claim of ineffective assistance of counsel, because the facts of this case clearly indicate that the defendant was denied the right to counsel. "Counsel for a defendant must be afforded 'a reasonable opportunity to prepare and to present the defence.' " Commonwealth v. Cavanaugh, 371 Mass. 46, 50, 353 N.E.2d 732 (1976), quoting Lindsey v. Commonwealth, 331 Mass, 1, 2, 116 N.E.2d 691 (1954). "The discretion of the trial judge cannot be exercised in such a way as to impair the ... right to have counsel who has had reasonable opportunity to prepare a defense." Commonwealth v. Cavanaugh, supra 371 Mass. at 51, 353 N.E.2d 732.

We turn to the question whether a defendant has the right to counsel at a probation revocation hearing. In Williams v. Commonwealth, 350 Mass. 732, 216 N.E.2d 779 (1966), this court held that a defendant has a right to the assistance of counsel at a probation revocation hearing when such revocation might result in his...