Fay v. Com.

• Decision Date: 10 January 1980
• Citation: 399 N.E.2d 11,379 Mass. 498
• Parties: Claire M. FAY v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 11

399 N.E.2d 11

379 Mass. 498

Claire M. FAY v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Sept. 13, 1979.

Decided Jan. 10, 1980.

Richard H. Gens, West Newton, for plaintiff.

Ellen L. Janos, Asst. Atty. Gen., Boston (Steven A. Rusconi, Asst. Atty. Gen., with her), for the Commonwealth.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN, WILKINS and ABRAMS, JJ.

QUIRICO, Justice.

This is an appeal by the petitioner Claire M. Fay from an order of a single justice of this court ¹ affirming an adjudication by a judge of the Superior Court that (a) Fay was guilty of contempt of court, and (b) that she had violated the terms of probation previously imposed on her. Fay alleges that she was not afforded proper notice and an opportunity to be heard, that she was denied her right to counsel, that the judge should have recused himself on the contempt charge, and that the court did not comply with the requirements of Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), in revoking her probation. We hold that there was no error and affirm the action of the single justice.

Fay was the trustee of several trusts which owned and operated nursing homes in this Commonwealth. She was also a beneficiary of the trusts, and participated in the daily management of the nursing homes. On October 3, 1977, she pleaded guilty to three indictments charging her with larceny in connection with the operation of the nursing homes. On one indictment she was given a sentence of six months' imprisonment, and ordered to pay a fine of $600, costs of $9,000, and restitution of $18,826.35. On a second indictment she was ordered to pay a fine of $600 and restitution of $2,243.26, and on a third indictment, to pay a fine of $600 and restitution of $4,958.84. She was placed on probation for two years on the last two indictments. The fines were to paid by October 29, 1977, and restitution in the total amount of $26,028.45 was to be paid as directed by the probation officer. On December 1, 1977, the sentence of six months was revised to permit Fay to be released on December 22, 1977, and she was placed on probation as to the remainder of the sentence.

On February 22, 1978, pursuant to a request of the probation department, Fay appeared before a Superior Court judge regarding payment of the $1,800 in fines. The judge ordered her to submit by March 1, 1978, a schedule for payment of the restitution and costs. On the latter date she and her attorney ² met with the chief probation officer and paid the fines. The court again ordered her to submit, within one week, a schedule for payment of the restitution and costs. On March 10, 1978, Fay's attorney filed with the Superior Court probation office a letter containing a payment schedule of $2,000 a month, the first payment to be made on July 20, 1978. The letter added the condition that the "payment schedule is, of course, predicated on Mrs. Fay receiving monies from those parties who in turn owe her monetary obligations." At that time legal title to the nursing homes was in one Louis Almeida, with Fay holding a mortgage thereon.

On September 1, 1978, again at the request of the probation department, a hearing was held by a Superior Court judge regarding Fay's failure to make payments. The judge ordered Fay to appear with counsel on September 15, 1978, and to submit a financial statement so that the court might determine her ability to pay the restitution and costs. At the September 15 hearing, Fay submitted a financial statement showing her only asset to be a very small amount of cash on hand and showing a small weekly income. An assistant attorney general also appeared at this hearing, and represented to the court that she was prepared to prove that the petitioner had actual control over substantial amounts of money. The judge stated that he did not accept as true the financial statement which had been filed by Fay, and set October 31, 1978, as the date for a hearing on whether Fay was in contempt of court for filing a false financial statement and whether the court should revoke her probation for failure to comply with the condition that she make restitution. On October 18, 1978, the probation department sent Fay a letter formally notifying her of the October 31 hearing and setting forth three alleged violations of her probation. ³

At the October 31 hearing, Fay's attorney requested leave to withdraw because Fay had dismissed him. Fay indicated to the court that she intended to represent herself, and signed a form waiving her right to be represented by counsel. The court heard extensive evidence regarding Fay's continued control of nursing home funds and receipt of a considerable sum of money for her personal use. At the conclusion of the hearing the judge found Fay guilty of contempt for filing the false financial statement, for which he imposed a sentence of five months to be served at the Plymouth County House of Correction, which sentence he suspended and placed her on probation for three years. He also found that she had violated the terms and conditions of her probation requiring her to make restitution, ⁴ whereupon he revoked the probation and imposed an indeterminate sentence to be served at the Massachusetts Correctional Institution at Framingham to be followed by probation for three years.

1. Notice and opportunity to be heard. "Technical accuracy of pleading has not traditionally been required in contempt cases, but the alleged contemnor should be advised of the charges and have a reasonable opportunity to meet them by way of defense or explanation. Woodbury v. Commonwealth, 295 Mass. 316, 323, 3 N.E.2d 779 (1936)." Katz v. Commonwealth, --- Mass. ---, --- ^A, 399 N.E.2d 1055, --- (holding that tenant's motion to hold landlord in criminal contempt, together with judge's order to show cause constitute sufficient notice). Sussman v. Commonwealth, --- Mass. ---, --- ^B, 374 N.E.2d 1195 (1978). School Comm. of New Bedford v. Dlouhy, 360 Mass. 109, 117, 271 N.E.2d 655 (1971); Garabedian v. Commonwealth, 336 Mass. 119, 124-125, 142 N.E.2d 777 (1957); Dolan v. Commonwealth, 304 Mass. 325, 337, 23 N.E.2d 904 (1939).

In the present case, the judge told Fay in open court at the September 15 hearing that the October 31 hearing would be for the purposes of determining (a) whether her probation should be revoked because of her failure to pay restitution and costs, and (b) whether she should be adjudged in contempt for filing a false financial statement with the court. The written notice of October 18, while containing two vague charges, contained a third very specific charge. Any vagueness of the first two charges was immaterial surplusage in view of the third very specific charge that Fay had failed to pay restitution and court costs as required by the conditions of her probation, especially in light of the precise notice given by the judge to Fay in open court on September 15, 1978, of the purpose for the hearing to be held on October 31, 1978. Kartman v. Parratt, 535 F.2d 450, 453-454 (8th Cir. 1976). These two notifications, taken together, adequately conveyed to Fay the nature of the charges against her. In re O'Leary, 325 Mass. 179, 182, 89 N.E.2d 769 (1950); Martineau v. Perrin, 601 F.2d 1201, 1205 (1st Cir. 1979); ⁵ United States v. Evers, 534 F.2d 1186, 1188 (5th Cir.), cert. denied, 429 U.S. 1024, 97 S.Ct. 644, 50 L.Ed.2d 626 (1976).

The gist of the testimony at the final hearing was that Fay had wilfully attempted to transfer funds to put them out of the reach of the Commonwealth, that she had appropriated nursing home funds for her own use, and that she had received mortgage payments. Fay defended by attempting to prove that Almeida (and not she) had actual control of the funds, and that she had not received any mortgage payments from Almeida. In addition to presenting her own witnesses, Fay extensively cross-examined those of the Commonwealth. We have reviewed the record of the lengthy hearing in the Superior Court and conclude that she was given an adequate opportunity to present her defense.

2. Preliminary hearing on probation revocation. The United States Supreme Court has required a preliminary hearing in cases where parole might be revoked. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). It later extended the requirement to probation revocation cases. Gagnon, supra. In support of this extension, the Court held that revocation of probation was constitutionally indistinguishable from revocation of parole "where sentence has been imposed previously," Id., 411 U.S. at 782 n.3, 93 S.Ct. at 1759 n.3, and noted that Morrissey requires a preliminary hearing for the defendant at the time of his arrest and detention for violation of parole or probation. Id. at 782, 93 S.Ct. 1756. The purpose of the preliminary hearing is to protect the rights of the parolee or probationer who, being at liberty, is taken into custody for alleged violation of his parole or probation conditions, and detained pending a final revocation hearing. United States v. Sciuto, 531 F.2d 842, 846 (7th Cir. 1976); United States v. Strada, 503 F.2d 1081, 1084 (8th Cir. 1974). Cf. Stefanik v. State Bd. of Parole, 372 Mass. 726, 730-731, 363 N.E.2d 1099 (1977). After Fay was released from custody on December 22, 1977, as the result of the revision of her sentence, she remained at liberty on probation continuously until the completion of the hearing on the merits of the issues whether she was guilty of contempt and whether she had violated the conditions of her probation. She was not arrested or otherwise taken into custody pending that hearing. Therefore, having suffered no detention or loss of liberty for the contempt or the violation of her probation until after the adjudication that she was guilty thereof, she was not entitled to a preliminary hearing.

3. Written findings. Fay alleges that the judge failed to comply with the...