Com. v. Juzba

• Decision Date: 19 March 1998
• Docket Number: No. 97-P-0850,97-P-0850
• Citation: 427 Mass. 1104,691 N.E.2d 604
• Parties: , 44 Mass.App.Ct. 457 COMMONWEALTH v. Kevin JUZBA.
• Court: Appeals Court of Massachusetts

Page 604

691 N.E.2d 604

427 Mass. 1104, 44 Mass.App.Ct. 457

COMMONWEALTH v. Kevin JUZBA.

No. 97-P-0850.

Appeals Court of Massachusetts Franklin.

Argued Jan. 6, 1998.

Decided March 19, 1998.

Further Appellate Review Denied April 24, 1998.

Richard J. Fallon, West Acton, for defendant.

Dianne M. Dillon, Assistant District Attorney, for the Commonwealth.

Before PORADA, KAPLAN and BECK, JJ.

KAPLAN, Justice.

The defendant, Kevin Juzba, was tried by jury and convicted in Superior Court, Franklin County, under an indictment in two counts charging, respectively, rape and assault and battery. As will appear, each sentence included a probationary period. The defendant was later accused of violating probation by reason of his commission of further similar crimes.

At an evidentiary hearing on the alleged violation, the defendant contended that the probationary period, particularly that in the sentence for the assault and battery, had elapsed when the supposed violation occurred. He argues further on appeal that the judge applied an improper standard in finding that the defendant had in fact committed the violation. We find the defendant's contentions are without merit and affirm the order revoking probation and imposing sentence.

1. Question of probationary period. On January 30, 1992, at the conclusion of jury trial on the counts of the indictment, the judge pronounced sentences which were recorded on the reverse side of the bill of indictment as follows:

"Sent. as follows: Ct. I [rape]: 5-7 yrs MCI Ced. Jct., 18 mos. to serve and bal. susp. w/3 yrs prob. Ct. II [assault and battery]: 3 yrs. prob. Spec. Cond. of prob.: 1. Psychiatric or psychological treat. as determined by prob., 2. substance abuse treat. as directed by prob., [and victim witness, legal counsel, and probation fees]."

And the sentences were recorded on the docket sheet thus:

"Defendant sentenced as follows: Count I: 5-7 years MCI Cedar Junction, 18 months to be served and the balance suspended for 3 years with probation with a Judicial recommendation that the sentence be served at Hampden County House of Correction; Count II: 3 years probation concurrent with Count I [and a list of the 'special conditions of probation']."

On the day of sentencing the defendant signed a "probation conditions" document informing him that he was placed on probation for three years and was to "report upon release" to the Franklin County Superior Court probation department.

The defendant was released on June 7, 1993, from the Middlesex house of correction after accomplishing the eighteen months of prescribed incarceration for the rape. In 1995 his probation supervision was transferred from Franklin to Hampden County. On March 8, 1996, a State trooper arrested the defendant and he was later charged with rape and indecent assault and battery on a person over the age of fourteen. These new charges were reported to the Hampden supervising probation department; a chief probation officer after preliminary hearing found probable cause to "violate" the defendant's probation ¹; and an evidentiary hearing on the revocation of probation was scheduled in Superior Court. See G.L. c. 279, § 3.

Set for April 3, 1996, the hearing was then continued to April 24, 1996, at the prosecutor's request, to enable her to obtain the transcript of the sentencing proceeding of January 30, 1992. On April 24 the judge gave the prosecutor an additional day to produce, failing which the hearing went forward on the basis of the written notations quoted above, without benefit of any discussion at the time of sentencing. The hearing judge saw no need for the transcript where, as he thought, the notations were clear enough. ²

Count 1: There is no problem here of the meaning of the notations of sentence or of the propriety of the sentence. On a (first) conviction of rape, a defendant "shall be punished by imprisonment in the state prison for not more than twenty years." G.L. c. 265, § 22(b ), as amended through St.1980, c. 459, § 6. The judge gave a "split sentence" pursuant to G.L. c. 279, § 1, as amended through St.1975, c. 347: "When a person convicted before a court is sentenced to imprisonment, the court may direct that the execution of the sentence, or any part thereof, be suspended and that he be placed on probation for such time and on such terms and conditions as it shall fix." A judge is not barred from placing a defendant on probation during the period of his incarceration. ³ Here, however, the notations are themselves quite clear that the trial judge had no such exotic idea and was doing the conventional thing, so that probation fell in upon the defendant's release, with the balance of his five to seven year sentence hanging over his head ("bal. susp. w/3 yrs prob."; "balance suspended for 3 years with probation"). ⁴ His new offenses were within the three years, and the hearing judge correctly imposed the balance of his rape sentence. See Commonwealth v. Holmgren, 421 Mass. 224, 228, 656 N.E.2d 577 (1995), stating that, "[w]hether it is a desirable rule or not, when probation is revoked, the original suspended sentence must be imposed," and noting that the Federal practice is otherwise.

Count 2: Under G.L. c. 265, § 13A, a person convicted of assault and battery "shall be punished by imprisonment for not more than two and one half years in a house of correction or by a fine of not more than five hundred dollars." The trial judge gave the defendant "straight probation" pursuant to G.L. c. 276, § 87, as amended by St.1974, c. 614: "The superior court ... may place on probation in the care of its probation officer any person before it charged with an offense or a crime for such time and upon such conditions as it deems proper, ... in any case after a finding or verdict of guilty." ⁵

The defendant, observing that the notations say "3 yrs prob." and again "3 years probation concurrent with Count 1" without express reference to release from imprisonment, tries to invoke the proposition of Royce, petitioner, 28 Mass.App.Ct. 397, 402, 551 N.E.2d 919 (1990), that when sentences on multiple convictions are "not expressly ordered to be served consecutively, they are ordinarily regarded as concurrent." See Henschel v. Commissioner of Correction, 368 Mass. 130, 133, 330 N.E.2d 480 (1975). This could suggest that the probation on count 2 should be considered to begin to run from the date of sentencing. But the Royce proposition by its terms yields to the trial judge's purpose or design in fashioning a sentence, as evidenced by its expression and context. The notations for count 2 are indeed laconic, but the implication that release from jail sets off probation on count 2 is there when we review, as we should, the entire sentencing scheme. See Delisle v. Commonwealth, 416 Mass. 359, 361, 622 N.E.2d 601 (1993); Wolcott, petitioner, 32 Mass.App.Ct. 473, 479, 591 N.E.2d 679 (1992). The probation period for count 2 was the same as that prescribed for count 1, and the docket sheet's phrase "concurrent with count 1" is more suggestive of a concurrency of the probation periods on both counts than it is of a concurrency of the probation period on count 2 and the period of imprisonment on count 1. General Laws c. 276, § 87, governing probation, allows the sentencing judge much leeway in ordering the length and conditions of the probationary period and surely did not impose limits on the judge's authority in this case of "straight probation" to fix the start of the period at the release point of another sentence of the same defendant. As...