Com. v. Sawicki

• Decision Date: 29 December 1975
• Parties: COMMONWEALTH v. Philip A. SAWICKI.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 740

339 N.E.2d 740

369 Mass. 377

COMMONWEALTH

v. Philip A. SAWICKI.

Supreme Judicial Court of Massachusetts, Hampden.

Argued Nov. 3, 1975.

Decided Dec. 29, 1975.

Daniel E. O'Malley, Asst. Dist. Atty., for the Commonwealth.

Leonard R. Skvirsky, Springfield, for defendant.

Before TAURO, C.J., and QUIRICO, BRAUCHER, HENNESSEY and KAPLAN, JJ.

KAPLAN, Justice.

The case is here on report and presents a question about the power of a judge of the Superior Court to extent or revoke probation by an order entered after the original probationary term has expired.

On September 5, 1973, Philip A. Sawicki was convicted in the Superior Court, Hampden County, of assault and battery (G.L. c. 265, § 13A), and sentenced to a prison term of one year, sentence suspended, probation for one year. Conditions of probation were the usual (see present Rule 56 of the Superior Court (1974)).

In the proceedings to revoke probation (further described below) the judge found that Sawicki had committed three violations during the term. ¹ First, in October, 1973, about a month after sentence, he attacked a police officer who had been summoned to investigate a barroom disturbance. For this offense he was convicted in Palmer District Court of assault and battery on a police officer (G.L. c. 265, § 13D); he took his appeal to the Superior Court but retrial had not yet taken place at the time of the court hearing on revocation of probation. Second, Sawicki made false statements in writing: completing a form on two visits to his probation officer after his October arrest, he answered 'No' to the question whether he had been 'arrested or involved in any difficulty since your last report.' Because there is no system for automatic notification of the probation authorities when a probationer is charged with or convicted of crime, Sawicki's false reports served to keep his probation officer in ignorance of the October incident. Third, after July 17, 1974, Sawicki failed to report to a probation office. He had given notice in December, 1973, of a change of residence to New Hampshire and the probation authorities had arranged to transfer supervision to a probation office there. But when, in July, 1974, Sawicki moved back to Massachusetts, he ceased reporting to either office. This, too, failed to come to the attention of the Massachusetts authorities, possibly because the probation officer originally assigned had left in February for a temporary job in Washington.

The stated term of probation ended on September 4, 1974. In November Sawicki reported to the probation office and sought a termination of his probation; on November 15, 1974, a report with recommendation was presented by an assistant chief probation officer to a judge of the Superior Court. The report stated: 'All indications are that this man was an unsuccessful probationer and should have been violated (sic). However, due to the failure on our part to bring this case to the attention of the court prior to his expiration date, we are forced to ask that his probation be terminated.' The judge, however, did not accept the position that termination of probation was obligatory, and ordered the necessary steps to be taken to determine whether Sawicki should be surrendered for violation of probation. Normal administrative procedures were followed, and revocation hearings before the judge commenced on January 17, 1975. On March 13, 1975, the judge, finding violations as indicated above, entered an order extending the period of probation for two years from September 4, 1974. As the question of the court's 'jurisdiction' was a novel one, the judge reported the following question to the Appeals Court: Did this court have jurisdiction, on March 13, 1975, . . . to extend the term of or to revoke the defendant's probation on the basis of violations of conditions of his probation which occurred during the term of probation, in view of the fact that the defendant's term of probation had expired on September 4, 1974 and in view of the fact that he had not been brought before the court by his probation officer until over four months after that date? ' (Judge's footnote omitted.) Our court took the matter for direct review under G.L. c. 211A, § 10.

Although the Commonwealth in argument to the judge sided with Sawicki on the question of jurisdiction, it has since, 'upon further research and reflection,' come to agree with the judge, whose knowledgeable and thorough opinion accompanying his report of the question has lightened our task. We, too, agree with the judge that the court was not disabled by the expiration of the term from acting on the basis of in-term violations.

The statutes, with reflection in the prevailing practice, indicate that termination of probation, or rather of the court's power over the probationer, is not automatic when the stated period of probation has run even when no steps leading to revocation of probation have been previously taken. ² On the contrary, final action, in the form of an order signalling the end of the court's supervision of the probationer, is required to terminate probation, and this may occur after the close of the probation period originally set. It appears to follow that--within limits to be described--the order actually entered may take due account of infractions that occurred during the period of probation and for which the probationer has not previously been called to account.

In the following passage from G.L. c. 279, § 3, as appearing in St.1972, c. 251, the 'final disposition of the case' bespeaks an order of the court in the sense mentioned: 'At any time before final disposition of the case of a person placed under probation supervision or in the custody or care of a probation officer, the probation officer may arrest him without a warrant and take him before the court, or the court may issue a warrant for his arrest. When taken before the court, it may, if he has not been sentenced, sentence him or make any other lawful disposition of the case, and if he has been sentenced, it may continue or revoke the suspension of the execution of his sentence. . . .' Similarly, under G.L. c. 279, § 1, as amended by St.1938, c. 354, a situation is dealt with that envisages action by the court after the stated probation is over to determine whether the probationer has complied with the conditions of probation. '. . . When a person . . . is sentenced to pay a fine, and to stand committed until it is paid, the court may direct that the execution of the sentence by suspended for such time as it shall fix, and in its discretion that he be placed on probation on condition that he pay the fine within such time. . . . If during or at the end of said period the probation officer shall report that the fine is in whole or in part unpaid, and in his opinion the person is unwilling or unable to pay it, the court may either extend said period, place the case on file or revoke the suspension of the execution of the sentence. . . .' As the probation officer need not report until the end of the period set by the judge for payment of the fine (which is the stated period of probation), the statute is to be read as empowering the court to act after the probation period has ended.

We should make mention also of decisions of this court over the years, against a background of statutes substantially similar to those currently effective, which, without deciding our precise question, do look to an order of the court as the terminal point of the court's oversight of the probationer. See Commonwealth v. Brandano, 359 Mass. 332, 336, 269 N.E.2d 84, 87 (1971) '(a) defendant placed on probation is under the court's supervision pending further order or final judgment'); King v. Commonwealth, 246 Mass. 57, 60, 140 N.E. 253, 254 (1923) ('if (the probationer) satisfies the court that he has responded to probation, and that there is no longer occasion to keep him under supervision, the judge may decide to then dismiss the case'). See also Marks v. Wentworth 199 Mass. 44, 46, 85 N.E. 81 (1908); Commonwealth v. McGovern, 183 Mass. 238, 240, 66 N.E. 805 (1903).

Rule 57 of the Superior Court (1974) (with slight change continuing former Rule 99) is instructive as to the practice: 'The term of probation, unless otherwise prescribed, shall be until the regular sitting for or including criminal business within the county appointed to begin next after the expiration of the following periods after the day on which the defendant is placed on probation namely:--in cases under G.L. Chapter 273, five years and eleven months; and in other cases, eleven months. At the end of the term of probation, the probation officer shall make a written report to the court of the result of probation, which shall be filed in the case, and, if the court shall order, the probation officer shall bring the defendant before the court for an extension of probation or for other disposition.' ³ The first sentence of the rule, which applies when no fixed period of probation has been prescribed, is quite properly aimed at assuring that a criminal sitting will be in progress at the end of the term of probation and looks to a prompt court determination of a probationer's status. We are informed that in fact judges pronouncing the original sentences usually set a fixed period of probation, and, although the reports are commonly submitted to the court during the sitting in which the termination date of probation falls, they are often not available to or seen by the judge until after that date. A like situation may arise because of administrative lag in preparing reports or because, in any county in which criminal sessions are not continuous, reports may be filed when the court is not sitting. Ordinarily the recommendation of the probation office is favorable, an order of discharge from probation is entered, and no difficulty arises. When the recommendation is unfavorable, it has been the sound practice of probation...