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16-P-429                                                Appeals Court

                  COMMONWEALTH   vs.   HENRY JOHNSON.


                            No. 16-P-429.

       Bristol.       April 10, 2018. - September 14, 2018.

            Present:     Agnes, Massing, & Neyman, JJ.


Due Process of Law, Probation revocation, Hearing. Practice,
     Criminal, Probation, Revocation of probation, Stipulation,
     Waiver, Assistance of counsel. Waiver.



     Indictments found and returned in the Superior Court
Department on October 19, 2011.

     A proceeding for revocation of probation was heard by Renee
P. Dupuis, J., and a motion to withdraw a stipulation was also
heard by her.


     Xiomara M. Hernandez for the defendant.
     Tara L. Johnston, Assistant District Attorney, for the
Commonwealth.


    AGNES, J.     In Commonwealth v. Sayyid, 86 Mass. App. Ct.

479, 489 (2014), this court held that in order for an admission

to a violation of probation and a waiver of the right to a

revocation hearing to be valid, the record must demonstrate
                                                                    2


that, in the totality of the circumstances, the defendant's

decision was made knowingly and voluntarily.   The question

before us is whether the judge was correct in denying the

defendant's motion to withdraw his admission to violations of

his probation based on his claim that he was misinformed by his

attorney about the potential maximum sentence that the judge

would impose if the judge revoked his probation.    For the

reasons that follow, we agree with the judge that the

defendant's admission and his waiver of the right to a probation

violation hearing were made knowingly and voluntarily.

Accordingly, we affirm.

    Background.    1.   The defendant's guilty pleas.   On December

20, 2013, the defendant pleaded guilty to indictments charging

as follows:   one count of rape of a child, three counts of

indecent assault and battery on a child under the age of

fourteen, and one count of dissemination of obscene matter to a

minor.   He was sentenced to concurrent terms of from three years

to three years and one day in State prison on two of the counts

of indecent assault and battery, and two years of probation on

the remaining three counts, including the charge of rape of a

child, to be served upon release from State prison.     The terms

of the defendant's probation required that he wear a global

positioning system (GPS) monitoring device, attend and

successfully complete sex offender counselling, report to a
                                                                   3


probation officer, stay away from the victim, register as a sex

offender, and have no unsupervised contact with children under

the age of sixteen.

    Briefly, the facts underlying the charges to which the

defendant pleaded guilty are that in 2010, the victim, a child

under the age of fourteen, disclosed to her maternal grandmother

that on diverse dates when she was between the ages of five and

eight the defendant, her mother's then live-in boy friend,

sexually assaulted her.   Among other things, the victim

disclosed that the defendant put his fingers in her vagina and

forced her to put his penis in her mouth.

    2.   Final probation violation hearing.   Upon his release

from State prison on September 16, 2014, the defendant began his

two-year period of probation.   Because he wished to reside with

his mother in New Bedford, supervision of his probation was

transferred from Suffolk County to Bristol County.   A notice of

violation of probation and an arrest warrant issued on October

9, 2014, because the defendant had failed to report to his

probation officer, was not residing at the address he had

provided to the probation department and the Sex Offender

Registry Board, had failed to attend an outpatient sex offender

treatment program, and had removed his GPS monitoring bracelet.

Additionally, after the defendant was released from prison, the

victim saw him in the same store where she was shopping with her
                                                                    4


grandmother.   The victim informed her grandmother, who in turn

telephoned the police.    The defendant was brought in on the

arrest warrant on October 13, 2014, and appeared before the

Superior Court on October 15.

    A final probation violation hearing was scheduled for

January 5, 2015.    On that day, the parties were ready for the

hearing.   At the request of defense counsel, there was a sidebar

conference attended by the defendant's counsel, the prosecutor

who had represented the Commonwealth at the defendant's change

of plea, a probation officer, and the judge.    The defendant was

present in the court room, but did not hear the conference.

Defense counsel indicated that her client was prepared to accept

an additional one year of incarceration to resolve the case, but

stated, "I discussed with him a two to three in order to dispose

of it being more in line with the allegations . . . ."     The

Commonwealth sought an eight- to ten-year sentence.    The judge

informed the parties that she needed more information, and that

before making a decision she wanted an aid in sentencing

evaluation.    She further stated that the defendant's sentence

"could run the gamut from some period of incarceration to

reprobating again."    The sidebar concluded with defense counsel

informing the judge that the defendant was "prepared to

stipulate to the alleged facts, concede to sufficient facts to

find him in violation of probation."
                                                                     5


    After the sidebar conference, the judge informed the

defendant on the record that he was alleged to have violated the

terms and conditions of his probation.    She then informed the

defendant that he was entitled to have his attorney represent

him at an evidentiary hearing to determine whether he was in

violation of his probation.   The defendant said he understood.

He was then asked by the judge whether he wanted to waive his

right to an evidentiary hearing and to stipulate to the

probation violations.   The defendant responded in the

affirmative.   The defendant then verbally agreed with the facts

in support of each alleged probation violation and waived his

right to a probation violation hearing.    The defendant was not

asked to sign a written form acknowledging that he understood

the implications of stipulating to a probation violation and

waiving his right to a hearing.     Nor was the defendant informed

that no agreements had been reached about whether the judge

would revoke his probation and, if she did, what sentence would

be imposed.

    3.   Dispositional hearing.1    On February 13, 2015, the

dispositional hearing took place.    Once again, the judge,


    1  Under § 6(B) of the Guidelines for Probation Violation
Proceedings in the Superior Court, Mass. Rules of Court, at 1013
(Thomson Reuters 2018), a final probation violation hearing
consists of two parts: "(1) an evidentiary hearing to
adjudicate whether the alleged violation has occurred; and (2)
upon a finding of violation, a dispositional hearing."
                                                                     6


defense counsel, the prosecutor, and the probation officer had a

recorded sidebar conference.     By this time, the judge had

received two aid in sentencing reports from Bridgewater State

Hospital.    Counsel had an opportunity to review the reports.

The judge invited counsel to make recommendations as to the

disposition that she should make.     The prosecutor explained the

reasons for her earlier recommendation, but added that she would

be satisfied with an alternative recommendation of five years in

State prison.    Defense counsel indicated that her client would

prefer reprobation with different terms and conditions, but in

the alternative she would recommend a sentence of from three

years to three    and one-half years in State prison.   The judge

took the matter under advisement during the lunch recess.

    The case was called again later that same day.2     The

probation officer made a recommendation of from three to five

years in State prison.    The judge announced her sentence as

follows:    "[I]n consideration of the violation on the underlying

offense, on all three charges I'm going to sentence him to three

to six.     He's not an appropriate candidate for probation.   He




    2  There is no indication in the transcript that when the
case was called the second time there was a sidebar conference,
and we assume the hearing was in open court in the presence of
the defendant.
                                                                      7


should have some parole interaction when he's released."3      The

sentences were to be served concurrently.     Neither the defendant

nor his counsel raised an objection based on the judge having

exceeded the maximum sentence that the defendant later alleged

she had assured defense counsel she would not exceed.

     4.   Hearing on motion to withdraw admission.    On June 3,

2016, represented by a new attorney, the defendant filed a

motion to withdraw his admission to the probation violations.

The factual basis for the motion was the defendant's allegation,

set forth in his affidavit, that his prior attorney informed him

that during the sidebar conference held on January 5, 2015, the

judge stated that if the defendant admitted to the violations,

she would not impose a sentence in excess of three years in

State prison.    By the date of the hearing on January 18, 2017,

successor counsel had obtained an affidavit from the defendant's

prior counsel.    In that affidavit, prior counsel states in

pertinent part her recollection that during the sidebar

conference held on January 5, 2015, the judge said "she would

[not] go over a set number," and "[t]he number was lower than

that which was imposed but there were no guarantees made to the

defendant."     When at the hearing the judge pointed out that

prior counsel's affidavit was not supported by the transcript of

     3 The judge thereafter corrected the sentence on the charge
of disseminating obscene material to a minor to from three to
five years in State prison.
                                                                      8


the sidebar conference, successor counsel agreed, and argued

that the defendant did not hear the sidebar conference.     Rather,

the defendant's misunderstanding resulted from his attorney

giving him incorrect information.   The prosecutor responded by

arguing that even if the defendant was misled about the maximum

sentence the judge would impose for the violation of probation,

he was not prejudiced because he had no defenses to the alleged

probation violations.

    Discussion.   A defendant's agreement to waive a probation

violation hearing by admitting to the alleged violations of

probation and waiving the right to a hearing is valid only if it

is made knowingly and voluntarily in light of the totality of

the circumstances.   Sayyid, 86 Mass. App. Ct. at 489.     See

§ 6(B) of the Guidelines for Probation Violation Proceedings in

the Superior Court, Mass. Rules of Court, at 1013 (Thomson

Reuters 2018) ("The court may accept a probationer's stipulation

to a violation of probation as alleged in the Notice of

Surrender if the judge finds after colloquy that the probationer

is tendering a knowing and voluntary stipulation").      See also

Rule 6(g) of the District/Municipal Courts Rules for Probation

Violation Proceedings, Mass. Rules of Court, at 648 (Thomson

Reuters 2018) ("The court may accept an admission to an alleged

probation violation and a waiver of the right to a violation

hearing only upon a determination that the admission and waiver
                                                                   9


have been made knowingly and voluntarily").4   There is no

requirement that an admission or a stipulation to violations of

probation and a waiver of the right to a violation hearing be in

writing, but judges are authorized to require it.5

     The essential factual underpinning of the defendant's

motion to withdraw his stipulation is that his attorney at the

probation violation hearing misinformed him about the sentence

the judge would impose if the defendant admitted to the

violations.   However, the judge did not credit the defendant's

affidavit, and thus there is no basis for his claim that his

admission was not knowing and voluntary.   See Commonwealth v.

Pingaro, 44 Mass. App. Ct. 41, 48 (1997) ("The credibility,

weight, and impact of the affidavits in support of [a] motion

are entirely within the [motion] judge's discretion").

     Moreover, as the judge reasoned, even assuming that defense

counsel gave the defendant incorrect advice about what sentence

the judge would impose if the defendant admitted to the

     4 Compare Mass. R. Crim. P. 23 (a), 471 Mass. 1501 (2015)
(governing manner in which stipulations of fact agreed to by
parties before or during trial are to be memorialized and used
at trial); Mass. G. Evid. § 611(g) (2018) (explaining use of
stipulations in pending civil and criminal cases).

     5 The District and Municipal Court departments have
developed an approved form that is available to all judges,
which memorializes the defendant's admission and waiver of the
right to a final hearing. See Commentary to Rule 6(g) of the
District/Municipal Courts Rules for Probation Violation
Proceedings, Mass. Rules of Court, supra at 650. This form is
contained in the Appendix to this opinion.
                                                                   10


violations, the defendant cannot satisfy the requirements for

establishing an ineffective assistance of counsel claim.      To

make out such a claim, the defendant first must demonstrate

there was a "serious incompetency . . . falling measurably below

that which might be expected from an ordinary fallible lawyer,"

Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), and, second,

that counsel's deficient performance likely deprived the

defendant of an otherwise available, substantial ground of

defense.   Id.   Here, the defendant's claim of ineffective

assistance fails because there is no evidence that he was

prejudiced by the waiver of a probation violation hearing.

There is nothing in the record or the defendant's brief

indicating that he had a defense to the charges that he cut off

his GPS bracelet, failed to report to probation, failed to live

at the stated address, and failed to participate in sex offender

treatment.   The defendant also did not explain how he could have

expected a different outcome had he been granted a hearing.

See, e.g., Commonwealth v. Bowen, 92 Mass. App. Ct. 793, 799

(2018) ("Where the defendant offers no viable defense to the

probation violations, he cannot demonstrate that the factual

stipulations, even if prompted by reliance on allegedly

unreasonable assurances of a sentence capped at from five to six

years in State prison, likely deprived him of an otherwise

available, substantial ground of defense").
                                                                  11


     We take this occasion to commend the judge for the manner

in which she conducted the probation violation and dispositional

hearings.   The record before us indicates that the two sidebar

conferences were on the record.   See Murphy v. Boston Herald,

Inc., 449 Mass. 42, 57 n.15 (2007).   See also Commonwealth v.

Fanelli, 412 Mass. 497, 501 (1992).   In her discussions with the

prosecutor, defense counsel, and the probation officer, the

judge was careful not to condition any stipulation by the

defendant to the probation violations on any proposed

disposition, whether it was the recommendation of the prosecutor

or the probation officer.   See § 6(B) of the Guidelines for

Probation Violation Proceedings in the Superior Court, Mass.

Rules of Court, supra at 1013 ("[T]he court shall not be bound

by any agreement between the probationer and probation officer

or District Attorney regarding the disposition to be imposed").6


     6 The same principle applies in probation violation
proceedings in the District Court and Boston Municipal Court
departments. See Commentary to Rule 6(g) of the
District/Municipal Courts Rules for Probation Violation
Proceedings, Mass. Rules of Court, supra at 650, which provides
in pertinent part:

     "Section (g) also provides that, unlike a guilty plea or
     admission to sufficient facts to a criminal charge, an
     admission to a probation violation may not be accompanied
     by conditions which, if not accepted by the court, would
     allow the probationer to withdraw the admission. In other
     words, there is no equivalency to the 'defendant-capped
     plea' which can be tendered in the context of a criminal
     proceeding. The court may allow a probationer to withdraw
     a probation violation admission based on the court's
                                                                  12


Furthermore, the judge confined herself to identifying the

information she needed to make an informed disposition and to

listening to the recommendations made by the parties, the

factual basis for the defendant's earlier pleas of guilty, and

the general nature of the alleged violations.   The record

indicates that "the bare fact of the communication to the judge

of the sentencing alternatives . . . discussed by counsel,"

Commonwealth v. Damiano, 14 Mass. App. Ct. 615, 619–620 (1982),

did not coerce the defendant into admitting to the violations

and waiving his right to a hearing.   The judge did not

participate in the sidebar conferences as an "active

negotiator[]" with regard to the ultimate disposition of the

case.   Commonwealth v. Gordon, 410 Mass. 498, 501 n.3 (1991).

Cf. id. (restricting judicial involvement in plea negotiations).

Finally, the judge followed the preferred practice of conducting


    intended disposition as a matter of its discretion. The
    probationer may not withdraw an admission as a matter of
    right once an admission is submitted and accepted by the
    court. . . .

    "The prohibition in section (g) against 'conditioned'
    probation violation admissions also precludes admissions
    conditioned by proposed dispositions 'agreed to' by the
    probation department or by a prosecutor. Such an agreement
    does not bind the court or permit the withdrawal of the
    admission if the court's disposition is other than that
    'agreed upon' by a probation officer or prosecutor. The
    court may consult with probation regarding the disposition
    after finding a probation violation. See Rule 8(d). But
    for probation violation admissions there is no equivalent
    to the tender of criminal guilty pleas which may include
    dispositional terms agreed to by the prosecution."
                                                                  13


a colloquy with the defendant in which she fairly and

meticulously secured the defendant's agreement to the factual

basis for each of the alleged violations prior to accepting his

admission and his waiver of the right to a hearing.7

     Accordingly, the order revoking probation and imposing

sentence is affirmed.   The order denying the defendant's motion

to withdraw his stipulation to probation violations also is

affirmed.

                                    So ordered.




     7 There are, of course, many sound reasons why a judge may
elect to conduct a sidebar conference with the prosecutor,
defense counsel, and the probation officer, but without the
defendant, including security issues that arise when, as in this
case, the defendant is in custody. In light of the defendant's
allegations that he was misinformed about the contents of the
sidebar conference, it is advisable that in such cases the
judge's colloquy include a statement that no decision has been
made about the disposition of the case and, if the defendant
admits to one or more of the alleged violations, the judge
reserves the right not only to allow the defendant to remain on
probation, but to revoke the defendant's probation and to impose
any sentence permitted by law.
                                                      Appendix.



   PROBATION VIOLATION HEARING                  DOCKET NO(s)                 Trial Court of Massachusetts
    ADMISSION TO VIOLATION AND                                               District Court Department
       WAIVER OF HEARING
PROBATIONER’S NAME & ADDRESS                              PCF NO.            COURT NAME




                                        PROBATIONER’S ADMISSION AND WAIVER

      I, the undersigned probationer, understand and acknowledge that I am voluntarily and
knowingly giving up my right to a hearing before a judge on the issue of whether I have violated
the terms and conditions of my probation.

      I have received written notice of the probation violation(s) that have been alleged. I have
been notified of my right to request court-appointed counsel if I am determined to be indigent,
or the right to retain private counsel.

      I understand that I have the right to present witnesses and evidence in my own behalf at
the Probation Violation Hearing and have the right to confront and cross-examine witnesses
against me. I understand that, absent my admission and waiver, the Probation Department
would have the burden of proving by a preponderance of the evidence that I violated a
condition of my probation.

      My admission and waiver of a Probation Violation Hearing is a free and voluntary act on
my part and is not the result of force, threats, or intimidation. It is not the result of any promise
or assurance as to the disposition that might be made should a violation be found.

      I understand that my admission and waiver are not subject to any condition regarding the
disposition in these proceedings. I understand that I will not be entitled to withdraw my waiver
and admission once it is accepted by the judge.

       I am not now under the influence of alcohol, drugs, medications, or any other substance
that might impair my ability to fully understand the legal rights that I am waiving by giving up
my right to an evidentiary hearing on whether I have committed a violation of a condition of
probation and by admitting that I have committed a violation of a condition of probation, nor
do I have a mental or physical condition that might cause such impairment.
DATE                           SIGNATURE OF PROBATIONER

                               X
15
