Commonwealth v. Bynoe

• Decision Date: 26 February 2014
• Docket Number: No. 12–P–319.,12–P–319.
• Parties: COMMONWEALTH v. Keith BYNOE.
• Court: Appeals Court of Massachusetts

85 Mass.App.Ct. 13

4 N.E.3d 1272

COMMONWEALTH

v.Keith BYNOE.

No. 12–P–319.

Appeals Court of Massachusetts, Suffolk.

Argued Feb. 7, 2013.

Decided Feb. 26, 2014.

Michael B. Roitman, Boston, for the defendant.

Sarah H. Montgomery, Assistant District Attorney (Julie S. Higgins, Assistant District Attorney, with her) for the Commonwealth.

Present: WOLOHOJIAN, HANLON, & AGNES, JJ.

AGNES, J.

The defendant, Keith Bynoe, appeals from the revocation of his probation and imposition of a sentence of imprisonment to State prison. The principal issue he raises on appeal concerns the time within which a probationer must complete a treatment program, ordered as a condition of probation, when a date for completion is not otherwise specified. For the reasons that follow, we hold that in such a case the treatment program must be completed within a reasonably prompt period of time as determined initially by the probation department. As a result, we affirm.

Background. The defendant pleaded guilty in Superior Court in 2010 to five charges including kidnapping, assault by means of a dangerous weapon, negligent operation of a motor vehicle, assault and battery, and malicious destruction of property. The judge sentenced him to a State prison term of two years to two years and one day on the assault charge, to a concurrent three month house of correction incarceration on the negligent operation charge (deemed served), and to concurrent terms of probation for five years on the remaining charges, to be served from and after his release from incarceration. The defendant's terms of probation commenced in August, 2010, when he was released from State prison. Approximately four months later, on January 4, 2011, the defendant appeared before a magistrate in the Superior Court in response to a “Notice of Surrender and Hearing(s) For Alleged Violation(s) of Probation” (notice of violation). In open court and in the defendant's presence, the probation officer informed the magistrate that the defendant was in violation of the conditions of his probation because he had failed to report to probation every fourteen days, to pay the required probation service fee, and to enroll in a batterer's program. The probation officer added that “[i]f Mr. Bynoe gets himself back in line, we'll withdraw the surrender.” The probation officer informed the magistrate that the defendant was scheduled to begin a batterer's program the following Thursday, and for that reason, the probation officer requested that the hearing be continued for sixty days until March 8, 2011. The magistrate agreed.

In February, 2011, the District Court issued a complaint and an arrest warrant charging the defendant with assault and battery by means of a dangerous weapon. On March 8, 2011, the defendant appeared, with counsel, in the Superior Court for the continuation of the probation hearing. The probation officer informed the magistrate that the defendant remained in violation of his probation for the same reasons that were brought to the magistrate's attention on January 4, 2011. The defendant was then held on the District Court warrant, and a $5,000 cash bail was imposed in the Superior Court probation case. The previous notice of violation was amended to include two additional violations: a positive urine screen for marijuana and the new District Court criminal charge. After several continuances, a final probation revocation hearing took place over several days in July, 2011. In the meantime, the defendant was arraigned on the District Court complaint and held on a high cash bail. A jury trial on that matter was scheduled for September 20, 2011.

At the probation revocation hearing in July, the defendant's probation officer testified that on May 10, 2011, he mailed and faxed copies of the amended notice of violation,the defendant's prior criminal record, the police report in the new case pending in the District Court, and the terms and conditions of the defendant's probation to the defendant's current attorney. He also testified that the condition of probation relating to a treatment program established at sentencing in 2009 was that the defendant “[e]nter and [c]omplete certified batterer['s] intervention.” He added that he gave the defendant a list of certified batterer's programs throughout the State and that the defendant “was instructed to get enrolled [i]n one of those programs.” Only after the defendant failed to respond did the probation department issue the notice of violation that was the subject of the initial hearing on January 4, 2011.¹ At the close of the hearing, defense counsel acknowledged that the defendant did not complete the batterer's program and argued that the failure was due to the demands of his work schedule.

With regard to the alleged probation violations, the judge dictated his findings and rulings on the record. He found that the Commonwealth had not sustained its burden of proving, by a preponderance of the evidence, the violation alleging a new criminal offense, but that the Commonwealth had sustained its burden on the remaining violations.² See Commonwealth v. Wilcox, 446 Mass. 61, 65–66, 841 N.E.2d 1240 (2006). The judge took the matter of sentencing under advisement, and held a hearing on the matter one week later, on August 4, 2011. The judge imposed a sentence of three to seven years in State prison on the kidnapping charge, deeming the sentence to have commenced on March 8, 2011, a two-year, concurrent sentence of incarceration in the house of correction on the assault and battery charge, and a “from and after” term of probation for three years on the malicious destruction of property charge, with the same terms of probation as previously imposed.

Discussion.³ 1. Preliminary probation detention hearing. Contrary to the defendant's argument, he was not entitled to a preliminary probation detention hearing on March 8, 2011, when he voluntarily appeared in the Superior Court and was taken into custody. “The purpose of the preliminary detention hearing is to protect the rights of the ... probationer who, being at liberty, is taken into custody for alleged violation of his ... probation conditions, and detained pending a final revocation hearing.” Fay v. Commonwealth, 379 Mass. 498, 504, 399 N.E.2d 11 (1980).⁴ An examination of the relevant docket entries indicates that on March 8, 2011, the Superior Court magistrate placed the defendant in custody on the warrant issued by the District Court.⁵ Thus, the alleged violation of probation was not the cause of the defendant's detention. ⁶ See Commonwealth v. Odoardi, 397 Mass. 28, 33 n. 5, 489 N.E.2d 674 (1986) ( “[W]here a probationer is in custody awaiting prosecution on other charges he is not entitled to a preliminary hearing prior to final revocation of his probation”).

2. Written notice of violation. Written notice of the alleged probation violation and disclosure in advance of the hearing of the basis for the violation are two of the essential requisites of due process in probation violation proceedings. See Commonwealth v. Durling, 407 Mass. 108, 113, 551 N.E.2d 1193 (1990); Commonwealth v. Kelsey, 464 Mass. 315, 320–322, 982 N.E.2d 1134 (2013). The defendant does not maintain that he did not have actual, timely written notice of the alleged violations and the evidence relied upon by the Commonwealth. See Commonwealth v. Brown, 23 Mass.App.Ct. 612, 616, 504 N.E.2d 668 (1987). Instead, he contends that his rights were violated because he was not served in hand with the notice of violation. See Rule 4(b) of the District Court Rules for Probation Violation Proceedings, Mass. Ann. Laws Court Rules, at 88 (LexisNexis 2013–2014) (“The Notice of Probation Violation and Hearing shall be served on the probationer in hand or by first-class mail, unless the court orders otherwise”). The record indicates that on March 8, 2011, the probation officer filed with the Superior Court an amended notice of violation that included all of the allegations that were considered at the defendant's final revocation hearing, and served a copy on the defendant's attorney. Thereafter, on May 10, 2011, the defendant's probation officer mailed discovery, including a copy of the amended notice of violation, to the defendant's new attorney. When, as in this case, a probationer is represented by counsel and probation violation proceedings have commenced, service of an amended notice of violation on the probationer's attorney satisfies the requirements of due process as well as the requirements of Rule 4(b) of the District Court Rules for Probation Violations Proceedings, supra.

3. Time to complete certified batterer's program. Due process entitles a probationer “to an opportunity to show not only that he did not violate the conditions [of probation], but also that there was a justifiable excuse for any violation or that revocation is not the appropriate disposition.” Black v. Romano, 471 U.S. 606, 612, 105 S.Ct. 2254, 85 L.Ed.2d 636 (1985). In the present case, at the January 4, 2011, hearing before the Superior Court magistrate, the defendant was informed that he was in violation of his probation for failing to enroll in a certified batterer's program. This hearing took place approximately four months after his release from State prison. The defendant's probation officer also informed him at the hearing that he would be given sixty days to bring himself into compliance with this condition. According to the probation officer, the defendant was set to begin a batterer's program during the following week. The defendant was not taken into custody on the District Court warrant until March 8, 2011, two months after the initial probation surrender hearing. Thus, six months passed following the defendant's release from prison and his meeting with his probation officer during which time the defendant failed to enroll in and attend a certified batterer's program.

The premises of defendant's argument are correct. A...