Com. v. Ruiz

• Decision Date: 31 March 2009
• Docket Number: SJC-10272.
• Citation: 903 N.E.2d 201,453 Mass. 474
• Parties: COMMONWEALTH v. Julio RUIZ.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

903 N.E.2d 201

453 Mass. 474

COMMONWEALTH v. Julio RUIZ.

SJC-10272.

Supreme Judicial Court of Massachusetts, Worcester.

Argued December 4, 2008.

Decided March 31, 2009.

John J. Barter, Boston, for the defendant.

Patricia Flannery, Assistant District Attorney, for the Commonwealth.

Sharon N. Chaitin-Pollak, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae, submitted a brief.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, & BOTSFORD, JJ.

MARSHALL, C.J.

The defendant was sentenced, on seven separate offenses, after his guilty pleas were accepted. One sentence imposed a term of incarceration; the other six imposed a term of probation, to run "from and after" the incarcerated sentence. At issue in this appeal is whether a defendant's probation may be revoked based on noncriminal acts proscribed by the terms of probation (in this case, contact with the victim) for another offense where the noncriminal act occurred while the defendant was still incarcerated for the first offense. The Appeals Court concluded that a judge may revoke a "from and after" probationary term based on a violation of its conditions prior to the commencement of the term of probation and affirmed the decision of a judge in the Superior Court who had done so in this case. Commonwealth v. Ruiz, 71 Mass. App.Ct. 578, 579, 582-585, 884 N.E.2d 539 (2008). On the defendant's application for further appellate review, we conclude that, while a judge may have that authority, in this case the defendant did not receive adequate notice that the condition of probation prohibiting contact with the victim was in effect during the period of his incarceration. We reverse the decision of the Superior Court judge.

1. Background. The material facts are not in dispute. The defendant attacked, on two separate occasions, a woman with whom he had been in a relationship and who was the mother of his daughter. On March 8, 2004, a grand jury returned seven indictments charging the defendant in connection with his attacks.¹ The defendant pleaded guilty on September 7, 2004. The judge, accepting the disposition agreed to by both parties,² sentenced the defendant to a term of from five to five and one-half years in State prison on the indictment charging rape and to a three-year term of probation on the six other indictments "from and after" the sentence for rape. Because the circumstances surrounding the wording and the issuing of the probationary sentence are significant, we describe them in some detail.

At the plea hearing, the defendant's term of probation was orally described, three separate times, as commencing "from and after" or "on and after" his term of incarceration. Thus, in explaining the agreed-on disposition to the judge, the assistant district attorney stated that she was recommending "a three year probation ... to be served from and after his incarceration." During the plea colloquy, the judge asked the defendant whether he understood "that if the Court accepts the agreed recommendation, that if you are placed on probation on and after the sentence that would be imposed, that if you do violate those terms and conditions of probation that you can be brought in for a violation of probation" (emphasis added). The defendant responded affirmatively. Finally, the clerk, in announcing the sentence, described it as "a period of three years probation to commence from and after" the sentence on the rape conviction. The clerk then recited certain of the conditions of probation, which included "no contact with the victim," and asked the defendant whether he recognized the probation officer, who was present in the court, with whom he should be in contact, "[d]uring the three year period" of probation.

The defendant signed a probation agreement form that included preprinted and handwritten terms.³ The form states, "You have been placed on probation for the period 3 yrs from & after," the italicized words having been written by hand. In preprinted language, the form also states, "If you fail to comply with any of the following conditions of probation now placed on you by this court, you may be ordered to appear again in court, after due notice, and the court may change the conditions, extend the period of probation or impose sentence." Under a heading "Conditions of Probation," the form sets forth twelve preprinted conditions, most notably, "You shall not have any direct or indirect contact with the victim(s) nor reside in the same house or apartment with the victim(s) unless approved by the court." The form includes several handwritten "special conditions of probation," including "no contact [with] victim," and "[r]eport to probation immediately upon release."

In the spring of 2005, the defendant, while incarcerated, wrote letters to the victim. The victim brought the letters to the attention of the Superior Court probation department, and on May 18, 2005, the probation department issued a notice of probation surrender for "failure to comply with the no contact order imposed by the Court." The defendant moved to dismiss on grounds that his conduct was not criminal, that the sentencing judge did not intend the condition of probation prohibiting contact with the victim to take effect until his probationary term commenced, and that "it offends due process to revoke probation that, at the time of the conduct at issue, the defendant does not know or have reason to know is in effect." After a hearing, a judge in the Superior Court, who was not the sentencing judge, denied the defendant's motion, and a probation surrender hearing commenced on September 16, 2005.

At the probation surrender hearing, the Commonwealth and the defendant stipulated to the following: the defendant admitted he was the author of the letters received by the victim. Although the victim had obtained a protective order against the defendant that was in effect at the time he was sentenced, see G.L. c. 209A, the order had lapsed in March, 2005, and the victim had not sought to renew it at that time. After the victim received the letters from the defendant, she obtained, on May 31, 2005, another protective order against the defendant, who remained incarcerated. Thus, at the time that the defendant wrote the letters to the victim, no protective order was in effect prohibiting him from contacting her.

The judge found that the defendant had violated the terms of his probation. Having earlier reviewed the letters later introduced in evidence,⁴ the judge also found that one of the letters addressed to the victim had a "not so subtle threatening tone to it." He sentenced the defendant to a term of incarceration of from one year to one year and a day, revoking the defendant's probation on the defendant's conviction of assault and battery with a dangerous weapon. The defendant's appeal followed.⁵

2. Discussion. The defendant does not suggest that the specific conditions of his probation, including that he refrain from contact with the victim, were ambiguous in any respect, or that he did not understand that contact with the victim could result in a revocation of his probation with the attendant consequences. His claim is more focused, specifically that he was not given fair warning or clear notice that his probation or any condition of his probation, including the condition that prohibited him from contacting the victim, were in effect while he was incarcerated, at a time when no protective order was in effect. For this reason, he argues, revocation of his probation, which the Commonwealth acknowledges is based solely on the defendant's contacting the victim in writing, violated his rights to due process guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and arts. 10, 12, and 24 of the Massachusetts Declaration of Rights.⁶

Because it is dispositive of the case, we first address the due process claim. The principles of due process apply to probation revocation proceedings. See McHoul v. Commonwealth, 365 Mass. 465, 469, 312 N.E.2d 539 (1974), citing Gagnon v. Scarpelli, 411 U.S. 778, 781-782, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); United States v. Gallo, 20 F.3d 7, 11 (1st Cir.1994). Among other things, due process "requires that a person be given a `reasonable opportunity to know what the order prohibited, so that he might act accordingly.'" Commonwealth v. Delaney, 425 Mass. 587, 592, 682 N.E.2d 611 (1997), cert. denied, 522 U.S. 1058, 118 S.Ct. 714, 139 L.Ed.2d 655 (1998), quoting Commonwealth v. Butler, 40 Mass.App.Ct. 906, 907, 661 N.E.2d 666 (1996). Thus, a statute may not be enforced "when individuals of normal intelligence must guess at the statute's meaning and may differ as to its application, thus denying them fair notice of the proscribed conduct." Commonwealth v. Disler, 451 Mass. 216, 223, 884 N.E.2d 500 (2008), citing Commonwealth v. Freiberg, 405 Mass. 282, 288-289, 540 N.E.2d 1289, cert. denied, 493 U.S. 940, 110 S.Ct. 338, 107 L.Ed.2d 327 (1989), and cases cited. The "constitutional rule against vague laws applies as equally to probation conditions as it does to legislative enactments." Commonwealth v. Power, 420 Mass. 410, 421, 650 N.E.2d 87 (1995), cert. denied, 516 U.S. 1042, 116 S.Ct. 697, 133 L.Ed.2d 655 (1996). Due process therefore requires that a defendant sentenced to probation receive fair warning of conduct that may result in the revocation of probation. See Commonwealth v. Kendrick, 446 Mass. 72, 75, 841 N.E.2d 1235 (2006); United States v. Gallo, supra. In other words, a condition of probation must provide "reasonable guidance" as to the conduct prohibited so that people of "common intelligence" will understand its meaning. Commonwealth v. Kendrick, supra, quoting Commonwealth v. Orlando, 371 Mass. 732, 734, 359 N.E.2d 310 (1977). See United States v. Cabot, 325 F.3d 384, 385 (2d Cir.2003), citing Grayned v. Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972) (...