Com. v. Holmgren

• Decision Date: 03 November 1995
• Citation: 421 Mass. 224,656 N.E.2d 577
• Parties: COMMONWEALTH v. Carl M. HOLMGREN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 577

656 N.E.2d 577

421 Mass. 224

COMMONWEALTH v. Carl M. HOLMGREN.

Supreme Judicial Court of Massachusetts,

Worcester.

Argued Sept. 13, 1995.

Decided Nov. 3, 1995.

Brendan P. Murray, Southbridge, for the defendant.

Sandra L. Hautanen, Assistant District Attorney, for the Commonwealth.

Before LIACOS, C.J., and WILKINS, LYNCH and O'CONNOR, JJ.

WILKINS, Justice.

On September 27, 1990, the defendant was found guilty of operating a motor vehicle while under the influence of liquor, second offense. The judge imposed an eighteen-month sentence to a house of correction, which he suspended until September 22, 1992. One condition of probation was that the defendant obey State laws. In April, 1992, the defendant was charged with new motor vehicle offenses, including operating a motor vehicle while under the influence of liquor, third offense. In May, 1992, a notice of surrender for alleged violations of the conditions of his probation was served on the defendant. No action was taken on the probation surrender matter until after the defendant's trial on the new charges.

On December 28, 1992, a jury found the defendant not guilty of the new charges. The probation revocation hearing was held about two weeks later. Relying on the not guilty findings, the defendant moved that the probation revocation proceeding be dismissed or, alternatively, that no evidence concerning the April, 1992, incidents be admitted at the revocation hearing. The judge denied both motions and, based on a preponderance of the evidence, found that the defendant had committed a subsequent offense of operating while under the influence of alcohol. The judge, believing that he had no alternative, imposed the entire eighteen-month sentence to the house of correction that had been imposed but suspended in September, 1990. The judge stayed execution of the sentence pending appeal. We transferred the appeal to this court on our own motion.

The defendant argues that, based on the Fifth and Fourteenth Amendments to the Constitution of the United States and arts. 11 and 12 of the Massachusetts Declaration of Rights, the Commonwealth was collaterally estopped at the revocation hearing from relying on evidence of his alleged subsequent violations of law. His point is that, because the jury found him not guilty of the subsequent charges, the Commonwealth was barred from thereafter relying on evidence concerning those charges to revoke his probation. The defendant also challenges the judge's ruling that he lacked authority to impose anything less than the entire original sentence. We reject both arguments and affirm the order imposing the original eighteen-month sentence.

1. Principles of collateral estoppel do not bar the Commonwealth from revoking probation based on evidence of a violation of law of which a probationer has been found not guilty. The reason for this result lies in the difference in the burden of proof in the two proceedings. In a criminal case, of course, the Commonwealth must prove the elements of each crime charged beyond a reasonable doubt. In a probation revocation hearing the Commonwealth bears a lesser burden. Although the burden of proof in a revocation of probation proceeding has been variously described, it is proof by a preponderance of the evidence, the standard that the judge applied in this case. See Commonwealth v. Maggio, 414 Mass. 193, 198, 605 N.E.2d 1247 (1993) (violation of condition of probation must be found "at least to a reasonable degree of certainty"); United States v. Czajak, 909 F.2d 20, 22, 24 (1st Cir.1990) (proof beyond reasonable doubt not required; court must be "reasonably satisfied" of violation of condition of probation). See also United States v. Gallo, 20 F.3d 7, 14 (1st Cir.1994) ("it is enough if the proof, reasonably viewed, satisfies the court that a violation occurred"); Brown, petitioner, 395 Mass. 1006, 1007, 480 N.E.2d 301 (1985) (trial judge applied preponderance of evidence standard).

Because of the differences in the burden of proof, the concept of collateral estoppel in a double jeopardy sense, expressed in Ashe v. Swenson, 397 U.S. 436, 445, 90 S.Ct. 1189, 1195, 25 L.Ed.2d 469 (1970), has no application here. See Dowling v. United States, 493 U.S. 342, 349, 110 S.Ct. 668, 672, 107 L.Ed.2d 708 (1990) ("an acquittal in a criminal case does not preclude the Government from relitigating an issue when it is presented in a subsequent action governed by a lower standard of proof"); United States v. One Assortment of 89 Firearms, 465 U.S. 354, 362, 104 S.Ct. 1099, 1104-05, 79 L.Ed.2d 361 (1984) (same); One Lot Emerald Cut Stones & One Ring v. United States, 409 U.S. 232, 235, 93 S.Ct. 489, 492, 34 L.Ed.2d 438 (1972) (per curiam) (same). The majority view in this country is that collateral estoppel principles do not bar a probation revocation hearing based on an offense of which the defendant has been acquitted after a criminal trial. See, e.g., Avery v. State, 616 P.2d 872, 873-874 (Alaska 1980); State v. Jameson, 112 Ariz. 315, 318, 541 P.2d 912 (1975); In re Coughlin, 16 Cal.3d 52, 57-58, 127 Cal.Rptr. 337, 545 P.2d 249 (1976); Russ v. State, 313 So.2d 758, 760 (Fla.), cert. denied, 423 U.S. 924, 96 S.Ct. 267, 46 L.Ed.2d 250 (1975); Johnson v. State, 240 Ga. 526, 527-528, 242 S.E.2d 53, cert. denied, 439 U.S. 881, 99 S.Ct. 221, 58 L.Ed.2d 194 (1978); Gibson v. State, 328 Md. 687, 695-697, 616 A.2d 877 (1992); Turner v. State, 784 S.W.2d 342, 344 (Mo.Ct.App.1990); Bouyer v State, 655 S.W.2d 355, 356 (Tex.Ct.App.1983). In jurisdictions once taking the contrary position, the continued vitality of the cases so holding has been placed in doubt. See People v. Grayson, 58 Ill.2d 260, 319 N.E.2d 43 (1974), cert. denied, 421 U.S. 994, 95 S.Ct. 2001, 44 L.Ed.2d 484 (1975), questioned in In re Nau, 153 Ill.2d 406, 428, 180 Ill.Dec. 240, 607 N.E.2d 134 (1992); Commonwealth v. Brown, 503 Pa. 514, 469 A.2d 1371 (1983), limited in Lyness v. State Bd. of Medicine, 127 Pa.Commw. 225, 239, 561 A.2d 362 (1989), and in Hawkins v. Pennsylvania Bd. of Probation & Parole, ...