Commonwealth v. PATTON

• Decision Date: 28 September 2010
• Docket Number: SJC-10625.
• Citation: 458 Mass. 119,934 N.E.2d 236
• Parties: COMMONWEALTH v. Frederick PATTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

458 Mass. 119

934 N.E.2d 236

COMMONWEALTH

v.Frederick PATTON.

SJC-10625.

Supreme Judicial Court of Massachusetts,Bristol.

Argued April 5, 2010.

Decided Sept. 28, 2010.

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Rebecca Rose, for the defendant.

Kristen L. Spooner, Assistant District Attorney (David J. Gold, Assistant District Attorney, with her), for the Commonwealth.

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

SPINA, J.

Frederick Patton, the probationer, was sentenced to a term of incarceration as a result of the revocation of his probation in the District Court. Represented by new counsel on appeal, he filed a motion under Mass. R.Crim. P. 30(b), as appearing in 435 Mass. 1501 (2001), alleging that trial counsel was ineffective for failing to file a notice of appeal, that the evidence at his revocation hearing was insufficient to support a finding that he violated the terms and conditions of his probation, and that in the circumstances his only avenue to obtain review is under rule 30. His motion was denied and he appeals. We transferred the case here on our own motion to consider whether a probationer is entitled to the effective assistance of counsel at a probation violation hearing, and if he is, to identify the appropriate procedure for presenting a claim of ineffective assistance of counsel.

We hold that a probationer is entitled to effective assistance of counsel at a probation violation hearing if his liberty is palpably at risk, or, alternatively, in all District Court cases. We further hold that a motion for a new trial under rule 30(b) is the proper means to raise a claim of ineffective assistance of counsel at such a hearing. Finally, we conclude that the evidence was sufficient to support the finding that the probationer violated the terms and conditions of his probation, and we affirm the denial of his rule 30(b) motion.

1. Background. On May 10, 2004, the probationer was convicted in the New Bedford Division of the District Court Department of assault by means of a dangerous weapon, aggravated assault and battery, and violation of an abuse prevention order. On the count alleging aggravated assault and battery he was sentenced to two years in the house of correction, four months to be served and the balance suspended, with probation until May 9, 2006. He received straight probation until May 9, 2006, on the other two counts. A condition of his probation was that he not violate any criminal law.

Following a hearing on June 16, 2005, based on circumstances not relevant to this appeal, he was found to be in violation of his probation by a second judge. Probation was revoked on the conviction of assault by means of a dangerous weapon, and a sentence of one year in the house of correction was imposed. Probation on the other two counts was extended until June 16, 2008. He was released after serving his sentence, and thereafter continued with his probation.

On May 9, 2007, the probationer received a notice of probation detention hearing alleging that he had violated the conditions of his probation by committing the crimes of indecent assault and battery on a child under fourteen, and threatening to commit a crime, on or about April 23, 2007, in the Dorchester section of Boston. Counsel was appointed to represent him. A probation violation hearing was held before a third judge. That hearing is the subject of this appeal.

The evidence at the hearing consisted primarily of written witness statements in police reports, and a videotaped Sexual Abuse Intervention Network (SAIN) ¹ interview with the four year old victim. ² The judge could have found the following facts. The child in question was four years old at the time of the incident. The child and her mother stayed at the home of the paternal grandmother over the weekend of April 21-23, 2007. The probationer is the grandmother's husband, but not the child's grandfather. During the early morning hours of April 23, the child climbed into her grandmother's bed, between the probationer and her grandmother. The probationer reached under her underwear and touched her “coo coo” (her vaginal area). He said he would beat her up if she told anyone. The child attempted to tell her parents immediately after the incident, but her father, who also lived in the house, told her it was late and to go back to bed. During the evening of April 23, the child complained to her mother that her private area hurt. She disclosed what the probationer had done to her. The child's mother observed a clear liquid on the child's vaginal area. The parents immediately notified police and sought immediate medical attention.

The probationer gave a statement to police on May 1, 2007, in which he denied touching the child, but he admitted that the child slept in the bed with him and his wife on the night in question. ³ He also said that he and the child got along very well and he could not say why she would accuse him of sexually assaulting her.

The main thrust of the defense was that the child had recanted. Evidence of recantation consisted of written statements from the child's mother and father, and live testimony of the probationer's private investigator, who had spoken to the child in the presence of the child's mother. The child reportedly told her father she lied about the incident because the probationer refused to give her ice cream. She reportedly told her mother and the private investigator she lied about the incident to put an end to her mother's persistent questioning concerning whether anyone had touched her. The judge did not find the evidence of recantation credible.

On October 11, 2007, the probationer was found to be in violation of his probation based on an indecent assault and battery on the child. His probation was revoked, and he was ordered to serve the balance of his sentence (twenty months) on the count alleging aggravated assault and battery. In addition, he received a concurrent sentence of two years in a house of correction on the count alleging violation of an abuse prevention order.

On January 3, 2008, the complaint alleging indecent assault and battery on a child under fourteen, the circumstances on which the probationer's violation of probation was based, was nolle prossed in the Dorchester Division of the Boston Municipal Court. As reasons for the nolle prosequi, the prosecutor stated that “the parents of the minor victim report that the minor victim has recanted.” He further stated, “The parents of the minor victim have also denied the Commonwealth access to the minor child. Without speaking with the minor child, the Commonwealth is unable to assess the viability of the case for prosecution and therefore cannot proceed to trial.”

On February 11, 2008, defense counsel filed a motion to reconsider the sentence imposed on the ground that “the basis of the Commonwealth's surrender has been vitiated” by the nolle prosequi. The motion was denied, after hearing, on February 29, 2008. On March 7, 2008, counsel filed a notice of appeal. The record was assembled and sent to the Appeals Court. In the meantime, new counsel was appointed by the Committee for Public Counsel Services to represent the probationer in his appeal. She filed her appearance on May 20, 2008. Appellate counsel filed a motion to dismiss the appeal as untimely. The Appeals Court allowed the motion and the appeal was dismissed “with prejudice,” on or before November 21, 2008.

On November 21, 2008, appellate counsel filed a motion for a new hearing pursuant to rule 30(b), on grounds that justice was not done. In particular, the probationer alleged that counsel was ineffective because he failed to file a timely notice of appeal, and failed to file a timely motion for reconsideration, ⁴ thereby leaving a rule 30(b) motion as the sole avenue to challenge the finding of a violation of probation and the revocation of his probation. ⁵ The motion for a new hearing further alleged that the evidence presented at the hearing was insufficient to find by a preponderance of the evidence that the probationer committed an indecent assault and battery on a child under fourteen. After hearing, the motion was denied ⁶ and the probationer timely appealed.

2. Assistance of counsel. The Commonwealth argues that this appeal is not properly before us. It contends that the only avenues to obtain review of a finding of a violation of probation and an order revoking probation are a timely appeal from the imposition of sentence or a timely motion to reconsider the order. ⁷ See Commonwealth v. Hernandez, 441 Mass. 1014, 1014-1015, 806 N.E.2d 931 (2004). The Commonwealth acknowledges, however, that we previously have not considered the issue in the context of a claim of ineffective assistance of counsel.

A criminal defendant is entitled, under the Sixth Amendment to the United States Constitution, to the effective assistance of counsel in a criminal case. McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). A claim of ineffective assistance of counsel is a well-established ground for a collateral attack on a decision in a criminal case. See Commonwealth v. Curtis, 417 Mass. 619, 624 n. 3, 632 N.E.2d 821 (1994). Such a claim is not a basis for a collateral attack on a civil judgment, where a litigant's sole recourse for his attorney's negligence is an action for malpractice. See Bell v. Eastman Kodak Co., 214 F.3d 798, 802 (7th Cir.2000). As a general rule, there is no right to the effective assistance of counsel in civil cases. See, e.g., Pokuta v. Trans World Airlines, Inc., 191 F.3d 834, 840 (7th Cir.1999), and cases cited. There are exceptions to the rule that we will discuss.

A probation violation proceeding is considered not to be a criminal prosecution because the probationer already has been convicted of a crime at a trial, and sentenced. See Gagnon v. Scarpelli, 411 U.S. 778, 781, 93 S.Ct....