Rubera v. Com.

• Decision Date: 13 October 1976
• Citation: 371 Mass. 177,355 N.E.2d 800
• Parties: Kelley RUBERA v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 800

355 N.E.2d 800

371 Mass. 177

Kelley RUBERA

v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 6, 1976.

Decided Oct. 13, 1976.

William J. Leahy, Boston, for petitioner.

Robert V. Greco, Asst. Atty. Gen., for the Commonwealth.

Before HENNESSEY, C.J., and REARDON, QUIRICO and BRAUCHER, JJ.

QUIRICO, Justice.

This is a petition for a writ of error by which the petitioner seeks to vacate an order of a judge of a District Court revoking her probation and ordering that she serve a sentence previously imposed but suspended. The case was submitted to a single justice of this court for Suffolk County for decision on 'a complete statement of all material facts' signed and filed by the parties. After a hearing thereon the single justice caused a judgment to be entered as follows: 'No error having been found, the order of April 7, 1975, finding the petitioner in violation of probation be, and the same is hereby affirmed.' The case is now before us on the petitioner's appeal from that judgment. We affirm the judgment.

We summarize the pertinent agreed facts. On September 26, 1974, the petitioner was found guilty in the Third District Court of Eastern Middlesex (District Court) on a complaint charging her with uttering a forged instrument (complaint No. 2783), was sentenced to a house of correction for two months, and the sentence was suspended and she was placed on probation for one year. On December 31, 1974, she was arraigned in the District Court on complaints charging her with attempting to commitlarceny and being a disorderly person (complaints Nos. 5691--5692). On January 7, 1975, she was given a written notice of surrender for rhe alleged violation of her probation on complaint No. 2783, the alleged violation stated therein being her arrest on complaints Nos. 5691--5692. On March 13, 1975, a judge sitting in the District Court (first judge) (a) found the petitioner guilty on complaints Nos. 5691--5692 and continued the matter to April 7, 1975, for disposition, and (b) determined that there was probable cause to believe that the petitioner had violated her probation on complaint No. 2783 '(b)y attempting to steal a welfare check. Her probation case is for forgery of a welfare check.' We infer that the quoted words 'attempting to steal a welfare check' refer to the offense of attempted larceny charged in complaint No. 5691.

On April 7, 1975, a different judge sitting in the District Court (second judge) presided over the hearing of the following matters involving the petitioner: (a) the hearing on the revocation of her probation on complaint No. 2783, and (b) the imposition of sentences pursuant to her convictions on complaints Nos. 5691--5692. ¹ Before disposing of these matters the second judge was informed by a probation officer that the first judge had found the petitioner guilty on complaints Nos. 5691--5692 on March 13, 1975. We infer that the fact of those convictions was apparent on the records before the second judge since he was about to impose sentences on those complaints. After hearing the parties the second judge made a written finding that the petitioner had violated her probation on complaint No. 2783 'in the following respects: 'finding of guilty of attempted larceny . . .,'' and he thereupon revoked the probation and ordered the petitioner to serve the two-month sentence originally imposed on the complaint. He also imposed sentences of thirty days and ten days, respectively, on complaints Nos. 5691--5692, all three sentences to run concurrently. The petitioner thereupon appealed her convictions and sentences on complaints Nos. 5691--5692 to the Superior Court, and four days later she entered the present petition for a writ of error on the revocation of her probation on complaint No. 2783. On April 30, 1975, she was admitted to bail by the single justice pending disposition of this petition.

At all times material to this case, and specifically at the time of the revocation of the petitioner's probation, she was represented by counsel appointed pursuant to S.J.C. Rule 3:10, as amended 355 Mass. 803 (1969). Williams v. Commonwealth, 350 Mass. 732, 216 N.E.2d 779 (1966). Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967). See McHoul v. Commonwealth, 365 Mass. 465, 469, 312 N.E.2d 539 (1974).

The basic issue argued by both sides is whether convictions of the petitioner by the first judge on complaints Nos. 5691--5692, which she appealed to the Superior Court, are sufficient to form the basis for revocation by the second judge of her earlier probation on complaint No. 2783. There is a subsidiary issue whether the use of the appealed convictions for such a purpose is prohibited by 'standards for probation work' established by the Commissioner of Probation pursuant to G.L. c. 276, § 99, as amended through St.1972, c. 396, § 2. ² The petitioner contends that her appeal of the two convictions on complaints Nos. 5691--5692 wiped them out and that to use them in these circumstances as the basis for revoking her probation on complaint No. 2783 violates her constitutional right to a trial denovo by a jury. For the reasons discussed below, we do not agree with that contention.

Before starting our discussion it is appropriate to emphasize three points which may help to focus more sharply on the basic issue involved. The first point is that the petitioner's probation on complaint No. 2783 was not revoked because of her arrest on complaints Nos. 5691--5692, but rather it was because of her convictions on those two complaints in the District Court. The second point is that, while the second judge heard no evidence whether the petitioner had committed the offenses charged in complaints Nos. 5691--5692, it is not contended that he did not know that the first judge had previously found her guilty on those complaints. In short, we do not understand the petitioner to base her claim of error in the revocation of her probation on the absence of formal evidence of her convictions on complaints Nos. 5691--5692. The third point is that the probation in this case was originally imposed by the same judge who had found the petitioner guilty, sentenced her, and then suspended the sentence. It therefore cannot be argued that the judge originally imposing the sentence did not have knowledge of the facts necessary to determine what the sentence should be.

1. Reliance on Appealed Convictions as Ground for Revocation of Probation. Any conduct by a person on probation which constitutes a violation of any of the conditions of his probation may form the basis for the revocation of that probation. Such conduct may involve the violation of criminal laws, but there is no prerequisite that the probationer be convicted thereof to permit the violation to be used as the basis for the revocation. United States v. Ambrose, 483 F.2d 742, 753--754 (6th Cir. 1973). United States v. Carrion, 457 F.2d 808, 809 (9th Cir. 1972). United States v. Markovich, 348 F.2d 238, 240 (2d Cir. 1965), and cases cited.

If the act alleged to be a violation of probation is made the subject of a criminal complaint, the commencement of the criminal prosecution does not preclude the revocation of the earlier probation nor does it require that the revocation proceeding be deferred until the completion of the new criminal proceeding. United States v. Chambers, 429 F.2d 410 (3d Cir. 1970). United States v. Markovich, supra, 348 F.2d at 240. State v. Barnett, 112 Ariz. 212, 214, 540 P.2d 684 (1975). People v. Smith, 105 Ill.App.2d 14, 17, 245 N.E.2d 13 (1969). Commonwealth v. Kates, 452 Pa. 102, 114--117, 117, 305 A.2d 701 (1973). Flint v. Howard, 110 R.I. 223, 235--236, 291 A.2d 625 (1972), cert. denied, 409 U.S. 1078, 93 S.Ct. 694, 34 L.Ed.2d 667 (1972).

Further, if the act relied on as a violation of an earlier probation results in a criminal conviction, the fact that the conviction is awaiting appellate review does not prevent it from forming the basis for the revocation of probation. Roberson v. Connecticut, 501 F.2d 305 (2d Cir. 1974). United States v. Garza, 484 F.2d 88, 89 (5th Cir. 1973). United States v. Carrion, 457 F.2d 808 (9th Cir. 1972). State v. Barnett, supra, 112 Ariz. at 214, 540 P.2d 684. In the Roberson case, supra, the court said, at 308: 'Essentially, appellant is contending that he has a federally protected right to suspension of the revocation order during the pendency of his appeal from the conviction that triggered the revocation. Clearly, he has no such right. All that is required for revocation of probation is that the court be satisfied that the probationer has abused the opportunity given him to avoid incarceration. . . . Here, the revocation proceeding was held up until the robbery charges were tried, a protection for the probationer not required under our cases. . . . But cf. ABA Project on Standards for Criminal Justice, Standards Relating to Probation § 5.3 at 63--64 (Approved Draft 1970) (suggesting that revocation proceeding should, as a matter of policy, be postponed until after disposition at the trial level of the new criminal charge). A criminal conviction after a trial at which the probationer was entitled to all the protections afforded a criminal defendant including formal rules of evidence, the right to assigned counsel if indigent, and the requirement that the state establish guilt beyond a reasonable doubt certainly affords a more than suficient basis for revocation of probation, even if that conviction is still awaiting appellate review.'

In Stone v. Shea, 113 N.H. 174, 304 A.2d 647 (1973), the New Hampshire Supreme Court had before it substantially the same issue now before us, involving the revocation of probation on the basis of a violation consisting of a District Court conviction appealed to the Superior Court for trial de novo. There the court said, at 175, 177, 304 A.2d at 648. 'The record . . . shows that on October 12, 1971, Stone was convicted...