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11-P-2150                                             Appeals Court

            COMMONWEALTH   vs.   ABDULLAH MUHAMMAD SAYYID. 1



                             No. 11-P-2150.

         Worcester.        March 7, 2014. - October 6, 2014.

             Present:   Katzmann, Rubin, & Carhart, JJ.


Due Process of Law, Probation revocation, Hearing. Practice,
     Criminal, Revocation of probation, Probation, Stipulation,
     Waiver. Intellectually Disabled Person. Mental
     Impairment. Waiver.



     Indictments found and returned in the Superior Court
Department on July 30, 1999.

     A proceeding for revocation of probation was heard by Kathe
M. Tuttman, J., and Peter W. Agnes, Jr., J., and a motion for
release from unlawful restraint was heard by Daniel M. Wrenn, J.


     Eleanor Hertzberg for the defendant.
     Stephen J. Carley, Assistant District Attorney, for the
Commonwealth.




     1
       At the time of the probation revocation hearing, the
defendant's name was Anthony J. Conley. He formally changed his
name to Abdullah Muhammad Sayyid through an order of the Probate
and Family Court in August, 2009.
                                                                   2


     KATZMANN, J.   The defendant, who is intellectually

disabled, appeals from the denial, after an evidentiary hearing,

of his claim that his attorney's stipulation to violation of

conditions of probation contravened his due process rights.

This appeal presents the questions whether, in a probation

revocation proceeding, a stipulation to probation violations

resulting in waiver of a hearing must be knowing and voluntary

and whether a judge is under an obligation to directly address

the defendant to ascertain that the waiver was knowing and

voluntary.   We conclude that a defendant's agreement to waive a

probation revocation hearing -- such as by stipulating to

violations -- must be knowing and voluntary, that such waiver is

to be assessed under the totality of the circumstances, and that

although there may be sound judicial administration arguments

for the promulgation of a rule codifying a contemporaneous

waiver protocol, no particular colloquy is constitutionally

required at the time of the waiver.    However, we further

conclude that the record here does not support a determination

that the defendant's waiver was knowing and voluntary.     We

reverse.

     Background.    After being examined for competency and

criminal responsibility pursuant to G. L. c. 123, § 15(a), the

defendant executed a waiver of rights and entered an Alford plea

(North Carolina v. Alford, 400 U.S. 25 [1970]) to one count each
                                                                       3


of rape of a child under sixteen by force in violation of G. L.

c. 265, § 22A, and indecent assault and battery on a child under

fourteen in violation of G. L. c. 265, § 13B.       A Superior Court

judge ordered the defendant committed for a period of

observation pursuant to G. L. c. 123, § 15(e), and then

sentenced him in 2002 to from seven to eight years'

incarceration on the offense of rape of a child under sixteen by

force, with a recommendation that the sentence be served at

Bridgewater State Hospital.    On the same date, the judge also

sentenced the defendant on the count of indecent assault and

battery on a child under age fourteen to three years' probation

upon discharge from the sentence of incarceration.      The

defendant was released from prison in 2007 at which time he

began his probation.

     At the time of his release from prison, the defendant

executed an agreement, with the assistance of his legal

guardian, Dr. Thomas Petrouski, to special conditions of

probation. 2   After an initial placement, the defendant was



     2
         Those conditions included the following:

     "1. You must comply with the Department of Mental
     Retardation (DMR) rules and regulations.
     2. You must remain at the DMR Residential Treatment
     Program until its successful completion.
     3. You must comply with the Level II Skill Development
     Plan.
     4. You must participate in treatment evaluations.
                                                                     4


transferred to a residential group home with twenty-four hour

staff supervision in Winchendon under the authority of the

Department of Mental Retardation (DMR). 3   The defendant was moved

there due to "numerous concerns" that his behavior could not be

controlled.    During this period probation officer Marie Mercurio

served a notice of violation to the defendant and filed a

surrender on his probation for numerous allegations that he had

violated his probation.    This notice of violation was the

subject of five separate court appearances.     At the first court

appearance, on March 21, 2008, Attorney Peter Clifford was

appointed as counsel for the defendant.     A different judge

(revocation judge) handled the four additional hearings over the



     5. You must participate in recommended treatment (anger
     management/emotional regulations and sex offender
     treatment).
     6. You must participate in a medication evaluation and
     take any prescribed medications. You may seek a second
     opinion.
     7. You may pursue employment if deemed appropriate by the
     DMR.
     8. You must register as a sex offender.
     9. You must stay away from and have no contact with
     children under the age of sixteen.
     10. You must stay away from and have no contact with the
     victim.
     11. You may contact biological children through mail or
     phone if approved by the Department of Social Services.
     12. You must comply with the DNA statute.
     13. You must abstain from drugs and alcohol.
     14. You must stay away from and have no contact with [Jane
     Doe] [a pseudonym]."
     3
         DMR is now the Department of Developmental Services.
                                                                  5


course of the following six months, 4 reflecting his conscientious

concern that the defendant's competency be established and the

judge's proactive efforts to consider alternatives to

incarceration.

     At the April 18, 2008, hearing, probation officer Mercurio

recited the alleged violations.    She reported that during his

stay in the Winchendon home, the defendant engaged in numerous

violations of the conditions of his probation and the DMR and

Winchendon home rules. 5   Noting that the defendant's guardian had


     4
       The hearings occurred on April 18, 2008; May 23, 2008;
June 3, 2008; and August 14, 2008.
     5
       The alleged violations were as follows: The defendant
contacted a Jane Doe, with whom the probation conditions had
forbidden contact, and used the telephone to do so in violation
of house rules. He stored cups of urine in his room, dressed
himself in "full army fatigues . . . [and] boots," and again
made telephone calls without permission to "900"-number-style
sex chat lines. During a visit to a country store near the
group home, the defendant took a "video game or a DVD" from a
display and "placed it in his jacket," attempting to steal it.
The store owners elected not to file charges on the condition
that the defendant "never be brought back to that location
again." In addition, the defendant, while attending religious
services, began a relationship with another woman and provided
to her "his papers," including legal papers, and began
exchanging money with her. The defendant also established a
relationship with the woman's daughter who, although not a
child, was "a very slight, childlike-looking young lady." The
defendant's conduct in the home gave its operators concern that
he was preparing to escape and live on the run. The defendant
was found storing a tarp in his room, which "could be used as
shelter in the woods." The Winchendon home was on a country
road surrounded by trees and next door to a home with children
and a daycare center "right around the corner." The defendant
had been seen wearing "fatigue[s]" regularly, and he stated to
the house manager that "he would rather go back to jail than
                                                                   6


failed to appear, the revocation judge declined to act on the

defendant's motion to dismiss or to conduct a final violation

hearing until the defendant could be evaluated for competency

with the benefit of the guardian's presence.

     On May 23, the revocation judge conducted another hearing

and took testimony from the guardian, Dr. Petrouski.   Dr.

Petrouski expressed his "own personal opinion" that the

defendant was not competent, that when he "is in front of the

judge, he will pretty much agree to anything."   The revocation

judge, noting that his "first concern . . . is on this issue of

competency," further observed:

     "The mere fact that someone has a guardian appointed, as
     perhaps everyone knows, doesn't mean that the person is not
     competent to stand trial, not competent to plead guilty as
     it were. And unless there's something that anyone who is
     here today knows that I don't know, I think it would be
     presumptuous of me simply because [the defendant] has a
     guardian, simply because the guardian reports that [the
     defendant] functions at a cognitive level that qualifies
     him for the services by the Department of Mental
     Retardation that when he pleaded guilty in this case or
     when his Alford plea was accepted that he was not competent


live by the rules." The defendant refused, contrary to DMR
requirements, to see his mandated psychologist, Dr. Sorrentino,
at the appointed time. He likewise refused to attend mandatory
sex offender therapy on Wednesday, March 19, 2008, stating on
that occasion "that he just didn't want to go." The house
manager also discovered that the defendant had mailed letters to
individuals to whom he had spoken on the chat lines. Some of
those letters, directed to a woman living in Arkansas, were
addressed to her by her first name followed by his last name,
i.e., "[s]o it's almost to a Mrs. So-and-So Conley" (see note 1,
supra). The defendant mailed a similarly addressed letter with
respect to a woman, a cousin of one of his housemates, with whom
he had gone bowling.
                                                                   7


     to stand trial. I don't think I would make that finding
     just based on what I've heard. . . . [I]f it turns out that
     he's not competent to stand trial even though he may have
     been competent to plead guilty at some point in the past,
     then I'm not sure what options the court has, but the
     option of revoking his probation is not one of them."

Accordingly, the revocation judge ordered the defendant

evaluated for competency pursuant to G. L. c. 123, § 15(a).

On June 3, the same judge conducted a further hearing and noted

that, since the prior hearing, the defendant had been evaluated

and had been deemed legally competent.   In his forensic health

report, Dr. Alan Schonberger had concluded that the defendant

has "mental retardation, a mental defect" and that he appeared

to be in the "mild mental retardation level" of intelligence.

While opining that the defendant has "many of the abilities and

understanding usually associated with CST [competency to stand

trial]," Dr. Schonberger cautioned:

     "Depending upon the demands placed upon him at a violation
     of probation hearing, in my opinion, will determine whether
     the court will find him either CST or Incompetent to Stand
     Trial (IST). Thus if the demands of a hearing require
     following complicated testimony or comprehending difficult
     legal questions, then I would have concerns about his
     capacity to adequately follow those issues. On the other
     hand if the demands at a hearing are more simple, then in
     my opinion [the defendant] is well able to handle those
     demands. At present [the defendant] understands his
     charges and the potential consequences of those charges.
     He understands the roles of the attorneys and judge
     involved in the hearing. While unable to define words like
     guilt, truth, or lie, [the defendant] demonstrates his
     capacity to comprehend these concepts when given relatively
     more simple examples.
                                                                  8


     "Due to his cognitive deficits, [the defendant's] thinking
     tends to be concrete and thus he will need to hear
     information in smaller chunks and in a more simplified
     manner in order to help him process it. He also will
     require additional time to process new information. In my
     opinion [the defendant] appears more marginal in terms of
     his CST in regards to more complicated legal issues, such
     as his understanding of a plea bargain. He will have a
     difficult time explaining the rights he might give up by
     accepting a particular plea option, and/or advantages in
     pursuing a particular course of action. (Of note, it
     remains unclear to me whether a plea bargain is even an
     option for a defendant in a violation of probation hearing
     and, if not, then this impairment is a moot point.)
     However, in my opinion, with adequate time and more
     simplified explanation, [the defendant] is able to
     comprehend necessary legal information to make rational
     decisions. Thus in my opinion no further evaluation of his
     CST is needed at this time." (Emphasis supplied).

At the June 3 hearing, Attorney Clifford acknowledged that

competency had been established.   Later in the same hearing,

after the judge questioned DMR representatives at length

regarding placement options other than incarceration, the judge

said,

     "Well, Mr. Clifford, let me direct a question to you.
     There was a fairly extensive presentation by the probation
     department at the earlier hearing that led me to the
     finding of probable cause, and I assume we would hear the
     same presentation again from Ms. Mercurio. Would you want
     an opportunity, if we were to treat this as a final
     hearing, to cross-examine the probation officer, and-or
     offer evidence yourself on the issue of whether [the
     defendant] violated his probation, versus what the
     disposition would be?"

In reply, Attorney Clifford objected to probation officer

Mercurio's recitation of misconduct outside the scope of the

violation notices.   The revocation judge indicated such
                                                                    9


misconduct would only be considered as to disposition, and posed

the question to Attorney Clifford again.    Mr. Clifford replied,

"Sticking to the notices that have been filed, they're not in

dispute.   [The defendant] admits that he violated those terms of

his probation."   (Emphasis supplied).   Based upon this

representation, the revocation judge -- who did not question the

defendant personally, inquire into his understanding of the

stipulation, or inquire of counsel whether he had spoken to the

defendant about the implications of a stipulation -- stated:

     "All right; then I will find, on the basis of the evidence
     that was presented earlier that was detailed by Ms.
     Mercurio about the conduct of [the defendant] while at
     . . . the home in question, which violated the rules of the
     home, his failure to submit to the conditions of probation,
     that he is in violation of terms and conditions of his
     probation, which through counsel he acknowledges."

As suggested by the judge, the defendant then requested an aid-

in-sentencing evaluation to help formulate a plan that would

provide an alternative to incarceration.    The judge denied the

defendant's motion to dismiss the probation violation

allegations.   On August 14, 2008, the judge held a final hearing

as to disposition and, at its conclusion, sentenced the

defendant to from five to eight years' incarceration.      The

judge, who had sought to assess alternatives to incarceration,

concluded:

     "[The defendant's] record since he was placed on probation,
     regrettably, is that despite every effort made by the
     Probation Department, by the Department of Mental
                                                                  10


     Retardation, and by the people under contract with them,
     that the defendant has not been able to conform his conduct
     to the requirements of law. Now, on that case, the only
     option is incarceration, unless a judgment is made that the
     violations are so trivial and the risk of harm is so slight
     that incarceration would be unjust and serve no valid
     reason. That's not the case, unfortunately. I have to say
     I think that the Probation Department is correct in
     identifying [the defendant] as a high-risk offender, and
     that's because his record suggests that he has not only
     committed serious offenses, but that . . . he just does not
     have the wherewithal to conform to the requirements of
     law."

     On February 6, 2012, the defendant filed a motion for

"release from unlawful restraint" pursuant to Mass.R.Crim.P.

30(a), as appearing in 435 Mass. 1501 (2001).   In support of his

motion, the defendant alleged that "he did not knowingly or

voluntarily stipulate to a violation of probation, or waive his

right to a hearing on the merits."   Likewise, in his affidavit

in support of his motion, the defendant averred that he "d[id]

not remember if Attorney Clifford explained what it meant to

stipulate to a violation of probation."   He further averred that

he had "wanted the opportunity to explain [his] side of the

story regarding the alleged violations of probation."

According to the defendant's affidavit, had he received "the

opportunity to explain [his] side to the judge," he would have

told the revocation judge a number of facts and reasons relating

to the violations of his terms of probation, including that he

"should [not] have been violated" for contacting Jane Doe, see

note 5, supra, that he "did not break the rules at the group
                                                                  11


home by using the phone," that he "did not store urine" in his

room, and that the other allegations were either

misunderstandings or did not actually constitute breaches of the

house rules or the terms of his release.    In his accompanying

memorandum of law, the defendant repeated that he "did not

himself stipulate to the violation of probation.    The

stipulation was made by his attorney."

     On November 29 and December 21, 2012, a Superior Court

judge who was not the revocation judge, and to whom we shall

refer as the motion judge, conducted an evidentiary hearing on

the defendant's motion for release, at which Attorney Clifford

and the defendant testified. 6   As detailed below, the judge made

findings and denied the defendant's motion.

     Discussion.   The defendant contends that the motion judge

erred in denying his motion pursuant to Mass.R.Crim.P. 30(a). 7


     6
       Prior to the hearing, on the Commonwealth's motion, the
motion judge declared the attorney-client privilege waived with
respect to communications between Attorney Clifford and the
defendant as to the probation violation matter and,
specifically, as to the defendant's stipulation to the
violations.
     7
       The Commonwealth observes correctly in its brief that the
defendant's motion was improperly filed pursuant to
Mass.R.Crim.P. 30(a) because that subsection does not allow
challenge to the procedural merits of a probation revocation.
See Commonwealth v. Christian, 429 Mass. 1022 (1999). See also
Reporter's Notes to Mass.R.Crim.P. 30(a), Mass. Ann. Laws Court
Rules, Rules of Criminal Procedure, at 1659 (LexisNexis 2013-
2014) ("In the context of a probation revocation order, a motion
under Rule 30(a) would be appropriate only as a vehicle for
                                                                  12


The defendant asserts that the revocation judge erred in his

acceptance of the defendant's waiver of the right to a hearing

without inquiring of him contemporaneously whether or not he

understood the proceedings and the ramifications of a

stipulation to the violations.

     "The Commonwealth must prove a violation of probation by a

preponderance of the evidence."   Commonwealth v. Bukin, 467

Mass. 516, 520 (2014).   "A probation violation proceeding is not

considered to be a new criminal prosecution because the

Commonwealth already has met its burden of proving guilt beyond

a reasonable doubt."   Commonwealth v. Pena, 462 Mass. 183, 190

(2012).   "However, due process rights under the Fourteenth

Amendment to the United States Constitution are implicated at

such a hearing because a finding of violation of probation may

result in loss of liberty."   Commonwealth v. Patton, 458 Mass.

119, 125 (2010).   "Where '[r]evocation deprives an individual,

not of the absolute liberty to which every citizen is entitled,

but only of the conditional liberty properly dependent on

observance of special [conditions],' . . . 'a probationer need

not be provided with the full panoply of constitutional

protections applicable at a criminal trial.'"   Ibid., quoting,


challenging the legality of the sentence the defendant received
and not the legality of the order revoking probation"). The
Commonwealth acknowledges that the motion could have been filed
under rule 30(b) and does not challenge the appropriateness of
our consideration of this appeal.
                                                                  13


respectively, from Gagnon v. Scarpelli, 411 U.S. 778, 781 (1973)

(Gagnon), and Commonwealth v. Durling, 407 Mass. 108, 112

(1990).

     As the defendant acknowledges, due process is a flexible

concept:

     "Morrissey [v. Brewer, 408 U.S. 471 (1972),] and Gagnon
     establish that the minimum requirements of due process
     include '"(a) written notice of the claimed violations of
     [probation or] parole; (b) disclosure to the [probationer
     or] parolee of the evidence against him; (c) opportunity to
     be heard in person and to present witnesses and documentary
     evidence; (d) the right to confront and cross-examine
     adverse witnesses (unless the hearing officer specifically
     finds good cause for not allowing confrontation); (e) a
     'neutral and detached' hearing body such as a traditional
     parole board, members of which need not be judicial
     officers or lawyers; and (f) a written statement by the
     factfinders as to the evidence relied on and reasons for
     revoking [probation or] parole." Morrissey v. Brewer,
     supra at 489.' Gagnon v. Scarpelli, supra at 786."

Commonwealth v. Durling, supra at 113.   Commonwealth   v.

Durling, the touchstone case governing procedure in probation

revocation cases, notes, "[w]hile Morrissey and Gagnon identify

the components which make up a scheme satisfying due process,

the requirements of due process depend on the circumstances of

each case and an analysis of the various interests at stake."

Id. at 113-114.   Indeed, cognizant of the liberty interest at

stake in probation revocation proceedings, the Supreme Judicial

Court has "taken a somewhat more expansive view than the [United

States] Supreme Court . . . ."   Commonwealth v. Patton, 458

Mass. at 125 ("[W]henever imprisonment palpably may result from
                                                                  14


a violation of probation, 'simple justice' requires that, absent

waiver, a probationer is entitled to assistance of counsel").

     No reported Massachusetts decision has addressed the

proposition set forth by the defendant here -- namely, that in a

probation revocation proceeding, a stipulation to probation

violations resulting in waiver of a hearing must be knowing and

voluntary and that a judge is under an obligation to directly

address the defendant to determine that the waiver was knowing

and voluntary.   A decision of the United States Court of Appeals

for the First Circuit, however, has addressed those very issues

in United States v. Correa-Torres, 326 F.3d 18 (1st Cir. 2003)

(Correa-Torres), and we find it to be instructive and

persuasive.   There, the court considered the "requirements

[that] must be met when a probationer . . . purposes to waive

his right to a revocation hearing under Federal Rule of Criminal

Procedure 32.1."   Id. at 20.   That rule sets forth the same

basic procedural rights reiterated in Durling. 8   In Correa-

Torres, the First Circuit observed:

     "In our system of criminal justice, most rights can be
     waived. The rights enumerated in Rule 32.1 are no
     exception. As a general proposition, however, the waiver

     8
       Federal Rule of Criminal Procedure 32.1(a)(2) (2000)
(since 2003, Fed.R.Crim.P. 32.1[b][2]) requires: "(A) written
notice of the alleged violation; (B) disclosure of the evidence
against the person; (C) an opportunity to appear and to present
evidence in the person's own behalf; (D) the opportunity to
question adverse witnesses; and (E) notice of the person's right
to be represented by counsel."
                                                                 15


     of virtually any right closely affecting individual liberty
     must be knowingly and voluntarily made. Because adherence
     to the processes prescribed by Rule 32.1 is instrumental to
     the fair and efficient operation of revocation proceedings,
     we hold that a waiver of the rights conferred thereunder
     cannot be effective unless that waiver is made both
     knowingly and voluntarily."

Correa-Torres, 326 F.3d at 22 (citations omitted).   We agree.

     Regarding the protocol to ensure that a waiver is knowing

and voluntary, the First Circuit further observed:

     "Because we are mindful that revocation proceedings are
     more informal than criminal prosecutions, we do not
     prescribe any particular mantra. Instead, we emulate
     several of our sister circuits and hold that,
     notwithstanding the requirement that waivers of procedural
     rights with respect to revocation hearings must be knowing
     and voluntary, such waivers need not be accompanied either
     by any magic words or by a formal colloquy of the depth and
     intensity required under Federal Rule of Criminal Procedure
     11 (governing guilty pleas in criminal cases).

     ". . .

     "Where, as here, a probationer . . . mounts a retrospective
     challenge to the validity of a waiver of Rule 32.1 rights,
     a reviewing court should look not only to the punctilio of
     the sentencing court's colloquy with the probationer
     . . . , but also to the totality of the attendant
     circumstances.

     "The totality of the circumstances means exactly that --
     all the circumstances should be considered. Still, some
     circumstances are likely to have particular relevance in
     the revocation hearing context. These include evidence
     that sheds light upon the target's comprehension of the
     charges against him and evidence as to his appreciation of
     the nature of the rights afforded him by Rule 32.1. In the
     final analysis, however, courts should beware of assigning
     talismanic significance to any single fact or circumstance.
     The question of waiver entails endless permutations, and
     each case is quite likely to be sui generis."

Id. at 23 (citations omitted).
                                                                  16


     In sum, we agree that a defendant's agreement to waive a

probation revocation hearing -- such as by stipulating to

violations -- must be knowing and voluntary and that such waiver

can be assessed under the totality of the circumstances.    In

Correa-Torres, when faced with the defendant's contention that

his attorney's stipulation to a violation on his behalf could

not effectuate a valid waiver because the record did not show

that he understood his rights and waived them, the court held:

"Apart from the absence of a specific finding, nothing in the

record adequately evinces that the appellant understood the

nature of the accusation that triggered the revocation

proceeding."   Correa-Torres, 326 F.3d at 24.   "While such an

express finding is not ordinarily required in connection with a

waiver of rights, it is infinitely more difficult to find a

valid waiver based on a silent record."   Id. at 23 (citation

omitted).

     In the case before us -- despite the evidentiary hearing

focusing on the defendant's waiver -- the record remains

deficient on the critical question:   whether the waiver by the

intellectually disabled individual here was knowing and

voluntary at the time of the stipulation.    While the motion

judge made "a specific finding that the appellant's waiver was

knowing and voluntary," ibid., we conclude that there is

inadequate support for this determination.
                                                                  17


     Attorney Clifford's testimony 9 -- credited by the motion

judge -- does not establish that the waiver here by stipulation

was knowing and voluntary.   The judge found:

     "Attorney Clifford testified that on each day of hearing,
     he met with the defendant both prior to the hearing and
     subsequent thereto and also visited the defendant on
     several occasions at the Worcester County Jail. Attorney
     Clifford also agreed that he accepted the finding of
     competency on behalf of the defendant as expressed in the
     forensic report of Dr. Schonberger and further that
     Attorney Clifford stipulated as to the content of the
     notice of violation that is on behalf of the defendant,
     Attorney Clifford stipulated to the probation violation.
     In this regard Attorney Clifford went through his normal
     and customary practice, that is, he would have met
     extensively with the defendant, gone through each and every
     allegation as contained in the notice of violation and then
     would have discussed whatever defenses the defendant had to
     the violations. Attorney Clifford understood that there
     were difficulties with this defendant in terms of his
     ability to understand information and Attorney Clifford
     testified that it would be his practice to take as much
     time as was needed to assure himself that the defendant
     understood the information that was being provided."

The defendant, however, testified before the motion judge that

while Attorney Clifford "tried to explain" what would be

happening in the revocation proceeding, "I don't recall me

     9
       The defendant contends on appeal that the motion judge
erred in allowing the Commonwealth's "Motion for Court Order
Declaring Defendant's Attorney-Client Privilege Waived." We
disagree. The defendant's motion for release criticized
Attorney Clifford's conduct in stipulating to the probation
violations, implicitly suggesting that he had communicated to
his attorney his desire to contest the allegations and
explicitly stating that counsel had entered the stipulation
without his consent. Under these circumstances, the privilege
as to confidential communications was waived. See, e.g.,
Commonwealth v. Garvin, 456 Mass. 778, 784-787 (2010);
Commonwealth v. Woodberry, 26 Mass. App. Ct. 636, 637-640
(1988).
                                                                   18


saying, okay, fine.   Like I said, again, if you say something to

me, two minutes later or three minutes later, I will forget the

whole thing."

     Given the defendant's difficulty processing information,

Attorney Clifford's testimony about his conversations before and

after the stipulation is not sufficient to show the defendant's

understanding at the time of the stipulation.   His testimony --

credited by the motion judge -- that, although he did not have a

specific memory of the conversations he had with the defendant,

he would have contested any of the allegations had the defendant

sought to do so and that he carefully reviewed the individual

allegations and procedures to challenge them with the defendant

beforehand -- is similarly insufficient. 10

     While the motion judge was able to take some measure of the

defendant, who testified at the hearing, the defendant's

testimony does not undermine his contention that he did not

knowingly and voluntarily agree to waive the hearing on

violations.   The judge found:



     10
       At the hearing, Attorney Clifford testified that he
stipulated to probation because as a strategic matter, where it
was clear that the judge was seeking to devise a placement plan
for the defendant that would include alternatives to
incarceration, and where at least one of the numerous alleged
violations was meritorious, a stipulation would put his client
in a compassionate light. While that may have been wise as a
strategic matter, its wisdom does not resolve whether the waiver
was knowing and voluntary.
                                                                   19


     "The defendant testified that he has a second or third
     grade education level and that he does become confused
     about certain things. The defendant confirmed, however,
     that he understood that Attorney Peter Clifford was his
     lawyer and that Attorney Clifford met with him in court and
     also went to the jail to visit him a number of times in
     addition to the meetings at court."

The fact that the defendant understood his relationship with his

lawyer, however, does not resolve the question of waiver.    The

motion judge did not make any findings with respect to the

defendant's testimony at the hearing that he did not recall

agreeing to waive a hearing or that he had difficulty retaining

information.   Indeed, in July, 2008, not long after the June 3,

2008, probation violation determination, the defendant sent

Attorney Clifford a handwritten letter which states:   "Is all of

the things being done to me legal? . . .   When are you going to

challenge all of the things that the state and the place that I

was living has done to me?"   Attorney Clifford testified that he

"assume[d]" that he had discussed with the defendant whether "he

wanted to rescind or take back the stipulation that had been

entered into and have a hearing on the merits."   He would have

put on the record at the time of the August 14, 2008, sentencing

that the defendant "now has reservations about stipulating to

the violations."   Even though the motion judge credited Attorney

Clifford's assessment of his own general practice and concluded

that the defendant must not have been concerned with the waiver,

we cannot read so much from the absence of the expression of
                                                                  20


such a concern at the August 14 hearing.   If anything, the

defendant's July, 2008, letter supports his claims at the motion

hearing that he had concerns with his waiver and did not

understand the stipulation.

     To be sure, the assessment whether this intellectually

disabled defendant had knowingly and voluntarily waived his

right to a revocation hearing would have been facilitated if the

court had inquired of him personally.   In Correa-Torres, 326

F.3d at 24, where the defendant was not mentally impaired, the

First Circuit noted that, had the record demonstrated that "the

court advised the appellant of his rights or that counsel

reviewed those rights with him," it could have concluded as a

matter of appellate review that the defendant's waiver was

knowing and voluntary.   Here, while the record supports a

determination that Attorney Clifford reviewed those rights with

the defendant, given the defendant's mental impairment and the

evidence of his lack of understanding of the ramification of the

stipulation, we cannot conclude, in the totality of the

circumstances, that at the time of the revocation proceeding the

defendant waived his rights knowingly and voluntarily. 11



     11
       Although on the record here the Commonwealth has not
proved that the defendant knowingly and voluntarily waived a
revocation hearing and stipulated to a violation, that does not
mean that we have concluded that he is not competent to do so in
any future circumstances.
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     Finally, we note that the claim that a colloquy is required

by due process before a judge accepts a waiver of a probation

revocation hearing has been rejected not only by the First

Circuit but by all the other Federal circuit courts that have

considered it.   See, e.g., United States v. Pelensky, 129 F.3d

63, 68 (2d Cir. 1997); United States v. Manuel, 732 F.3d 283,

291 (3d Cir. 2013) ("rigid or specific collogu[y]" not required

in parole revocation hearing); United States v. Farrell, 393

F.3d 498, 500 (4th Cir. 2005); United States v. Hodges, 460 F.3d

646, 652 (5th Cir. 2006) ("Although a thorough colloquy .. . may

be the most precise means of evaluating the voluntariness of a

waiver, the failure . . . to engage in a comprehensive colloquy

is not of itself, fatal to the defendant's waiver"); United

States v. LeBlanc, 175 F.3d 511, 515-516 (7th Cir. 1999); United

States v. Taylor, 747 F.3d 516, 519 (8th Cir. 2014); United

States v. Segal, 549 F.2d 1293, 1296 (9th Cir. 1977); United

States v. Fay, 547 F.3d 1231, 1234 (10th Cir. 2008).    While, as

this case shows, good arguments can be made that the

"solemnizing" of a contemporaneous waiver protocol is desirable

"in aid of sound judicial administration," Ciummei v.

Commonwealth, 378 Mass. 504, 508-509 (1979), such rule-making

falls within the ambit of the Supreme Judicial Court and outside

the purview of this court.   See ibid.
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     Conclusion.   The order revoking probation is vacated, and

the matter is remanded to the Superior Court for further

proceedings consistent with this opinion.

                                    So ordered.
