Commonwealth v. Preston P.

Decision Date07 January 2020
Docket NumberSJC-12706
Parties COMMONWEALTH v. PRESTON P., a juvenile.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Benjamin L. Falkner, Andover, for the juvenile.

Timothy Ferriter, Assistant District Attorney, for the Commonwealth.

Nina L. Pomponio for the probation service.

Michelle Menken, for youth advocacy division of the Committee for Public Counsel Services & another, amici curiae, submitted a brief.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

GAZIANO, J.

A Juvenile Court judge may place a juvenile on pretrial probation with the consent of the juvenile and the Commonwealth. See Commonwealth v. Tim T., 437 Mass. 592, 596-597, 773 N.E.2d 968 (2002). As part of pretrial probation, the juvenile agrees to abide by certain conditions for a specified period of time. See id. In exchange, the case is removed from the trial calendar. See id. at 596, 773 N.E.2d 968. If the juvenile successfully completes the probationary period, the charges are dismissed. See id. at 597, 773 N.E.2d 968. This practice is distinct from pretrial conditions of release, which may be supervised by the probation service, but do not lead to dismissal or removal from the trial calendar. See Jake J. v. Commonwealth, 433 Mass. 70, 71, 74-75, 740 N.E.2d 188 (2000) ; G. L. c. 276, § 87. In this case, we are asked to determine the standard of proof and procedural requirements necessary for the revocation of pretrial probation in the Juvenile Court.

We conclude that, for a revocation based on a new criminal offense, the Commonwealth must prove that there is probable cause to believe that the juvenile committed the offense. Probable cause may be established at a nonevidentiary hearing based on the application for a complaint. For a revocation based on any violation other than a new criminal offense, the Commonwealth must prove by a preponderance of the evidence, at an evidentiary hearing, that the juvenile violated the condition. For any revocation of a juvenile's pretrial probation, due process requires written notice of the claimed violation, the opportunity to be heard, and a judicial finding that the juvenile committed the violation. The other evidentiary principles that govern postdisposition probation revocation hearings, see Commonwealth v. Durling, 407 Mass. 108, 113, 118, 551 N.E.2d 1193 (1990), do not apply.1

Background. The juvenile was charged with assault and battery by means of a dangerous weapon for allegedly "whipping" a remote control at another juvenile. With the consent of the juvenile and the Commonwealth, a Juvenile Court judge subsequently placed the juvenile on pretrial probation in anticipation of the case being dismissed after a specified probationary period.2 The pretrial probation agreement included the condition that the juvenile obey all local, State, and Federal laws. Before the probationary period ended, the probation service served the juvenile with a notice of pretrial probation violation alleging new charges for tagging and defacing property.3 At a hearing on the Commonwealth's motion to revoke pretrial probation, the judge found probable cause that the juvenile had committed the offense of tagging. Based on this finding, the judge revoked the juvenile's pretrial probation and put the case back on the trial calendar.

The juvenile filed a motion to reconsider the revocation; he argued that the judge's application of the probable cause standard violated the juvenile's due process rights. The juvenile maintained that a violation must be proved by a preponderance of the evidence, and that the hearing must comply with the evidentiary requirements of Durling, 407 Mass. at 113, 118, 551 N.E.2d 1193. The judge heard argument on these questions of law in a series of nonevidentiary hearings. He then allowed the motion to reconsider, set a date for a revocation hearing, and stayed the matter pending the resolution of three questions that he reported to the Appeals Court. We transferred the case to this court on our own motion.

Discussion. The judge reported the following questions:

"1. Where a juvenile has been placed on pretrial probation under [ G. L. c. 276, § 87,] and Commonwealth v. Tim T., 437 Mass. 592, 773 N.E.2d 968 (2002) [,] in contemplation of the Commonwealth's dismissal of the case upon the juvenile's successful completion, does [ G. L. c. 276, § 58B,] govern the revocation of said pretrial probation?
"2. Where the Commonwealth seeks revocation of pretrial probation in contemplation of dismissal, pursuant to [ G. L. c. 276, § 87,] and Commonwealth v. Tim T., 437 Mass. 592, 773 N.E.2d 968 (2002), must a violation of any condition be proven by a preponderance of the evidence?
"3. Do the evidentiary principles in Commonwealth v. Durling, [407] Mass. 108, 111, 551 N.E.2d 1193 (1990) [,] apply to such a hearing?"

See Mass. R. Crim. P. 34, as amended, 442 Mass. 1501 (2004).

We answer the first question, "No." Based on the incongruence between the language of G. L. c. 276, § 58B, and pretrial probation, we conclude that the statute does not govern the revocation of a juvenile's pretrial probation. We answer the second question, "No," in part. For a violation based on a new criminal offense, a judicial finding of probable cause satisfies the requirements of due process. For a violation of any other condition, however, due process requires proof by a preponderance of the evidence. We also answer the third question, "No," in part. For revocation of a juvenile's pretrial probation, due process necessitates notice of the alleged violation, the opportunity to be heard, and a judicial finding that the violation occurred. Violations based on new criminal offenses may be established at a nonevidentiary hearing based on the application for a complaint, while other violations require an evidentiary hearing. The additional evidentiary principles from Durling, 407 Mass. at 113, 118, 551 N.E.2d 1193, are not requisites in the context of pretrial probation.

1. Terminology. A Juvenile Court judge may place a juvenile on pretrial probation based on the statutory authorization of G. L. c. 276, § 87.4 See Tim T., 437 Mass. at 596-597, 773 N.E.2d 968. General Laws c. 276, § 87, also establishes statutory authorization for pretrial conditions of release, Jake J., 433 Mass. at 71, 740 N.E.2d 188, which are distinct from pretrial probation. Notwithstanding this distinction, our jurisprudence at times has used the term "pretrial probation" in discussing pretrial conditions of release. See id. at 75, 740 N.E.2d 188 ("Juvenile Court judge had authority to place the juvenile on pretrial probation with conditions for his release on bail"). We take this opportunity to delineate the differences between the two.5

a. Pretrial probation. With the consent of the juvenile and the Commonwealth, a judge may place a juvenile on pretrial probation pursuant to G. L. c. 276, § 87. See Tim T., 437 Mass. at 597, 773 N.E.2d 968. A pretrial probation agreement specifies conditions with which the juvenile must comply for a specified period of time. See id. at 596-597, 773 N.E.2d 968. When a juvenile is placed on pretrial probation, the case is removed from the trial calendar. See id. at 596, 773 N.E.2d 968. If the juvenile successfully completes the probationary period, the charges are dismissed. See id. at 597, 773 N.E.2d 968. A judge may not order a juvenile detained based on a violation of pretrial probation, because "the only recourse [is] to return the case to the trial calendar." See Commonwealth v. Rodriguez, 441 Mass. 1002, 1003, 802 N.E.2d 1039 (2004), quoting Tim T., supra at 596, 773 N.E.2d 968. General Laws c. 276, § 87, does not provide a procedure for the revocation of pretrial probation. As we discuss, neither does any other statute.

b. Pretrial conditions of release. General Laws c. 276, § 87, also allows for a distinct type of supervision known as pretrial conditions of release. See Jake J., 433 Mass. at 71, 740 N.E.2d 188. The confusion between pretrial probation and pretrial conditions of release is understandable. Both occur prior to trial, and both involve supervision by the probation service. Nonetheless, they are distinct procedures that serve different functions.

As with pretrial probation, a defendant must consent to the conditions of pretrial release, but by contrast to pretrial probation, the Commonwealth's consent is not required. Compare Jake J., 433 Mass. at 71, 740 N.E.2d 188, with Tim T., 437 Mass. at 594, 597, 773 N.E.2d 968. Unlike pretrial probation, pretrial conditions of release do not remove the case from the trial calendar or lead to a future dismissal. Compare Tim T., supra at 596-597, 773 N.E.2d 968, with Jake J., supra. Further, and distinct from a violation of a condition of pretrial probation, a violation of pretrial conditions of release may lead to detention. Compare Tim T., supra at 596, 773 N.E.2d 968, with G. L. c. 276, § 58B (authorizing detention of up to ninety days). Finally, the adjudication of violations of pretrial conditions of release, but not pretrial probation, is governed by statute. See G. L. c. 276, § 58B, and discussion, infra.

While the terms at times have been used interchangeably in earlier jurisprudence, for clarity, we will not use the term "pretrial probation" to refer to pretrial conditions of release.

A Juvenile Court judge also may impose pretrial conditions of release without supervision by the probation service. See G. L. c. 276, § 58. Although we held in Commonwealth v. Dodge, 428 Mass. 860, 863-866, 705 N.E.2d 612 (1999), that judges did not have statutory or inherent authority to impose conditions of release under G. L. c. 276, § 58, the Legislature amended the statute in 2006 and 2014, thereby allowing for the imposition of certain conditions of release. See G. L. c. 276, § 58, as amended through St. 2006, c. 48, § 8 (juvenile "may be ordered to abide by specified restrictions on personal...

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