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SJC-12486

                COMMONWEALTH   vs.    CAYLA S. PLASSE.



      Franklin.       September 6, 2018. - January 10, 2019.

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


Practice, Criminal, Sentence, Probation, Revocation of
     probation, Judicial discretion.



     Complaint received and sworn to in the Orange Division of
the District Court Department on September 26, 2013.

     A motion for release from unlawful restraint and for a new
sentencing hearing, filed on March 31, 2017, was heard by David
S. Ross, J.

     The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.


     Edward Gauthier for the defendant.
     Thomas H. Townsend, Assistant District Attorney, for the
Commonwealth.
     Lisa Newman-Polk, for Committee for Public Counsel Services
& others, amici curiae, submitted a brief.


    LENK, J.    "Few, perhaps no, judicial responsibilities are

more difficult than sentencing.      The task is usually undertaken
                                                                     2


by trial judges who seek with diligence and professionalism to

take account of the human existence of the offender and the just

demands of a wronged society."    Commonwealth v. Rodriguez, 461

Mass. 256, 259 (2012), quoting Graham v. Florida, 560 U.S. 48,

77 (2010).    While the exercise of this "quintessential judicial

power" is never an easy task, Rodriguez, supra at 266, it is

made all the more difficult when the crime and subsequent

noncompliance with probation are related to the effects of drug

addiction.

    The issue here arises from the judge's imposition of a

sentence of incarceration following the defendant's repeated

addiction-related violations of probation over a period of

several years.    The defendant requested the sentence in order to

participate in a secure residential drug treatment program, but,

after several months of serving her sentence, sought release

from the alleged unlawful restraint, as well as a new sentencing

hearing.     She now appeals from the denial of the motion she

filed pursuant to Mass. R. Crim. P. 30, as appearing in 435

Mass. 1501 (2001); the defendant contends that the judge erred

in considering the rehabilitation program when setting the

length of her sentence of incarceration.    We conclude that in
                                                                        3


the circumstances presented, the judge did not abuse his

discretion.1

     1.    Background.   a.   Initial disposition.    In August 2013,

the defendant stole items valued at more than $250 from a chain

department store.    A complaint issued approximately one month

later charging her with larceny, in violation of G. L. c. 266,

§ 30 (1), and with using disguises to obstruct execution of the

law, in violation of G. L. c. 268, § 34.      At a plea colloquy,

the defendant admitted to sufficient facts to warrant a finding

of guilt with respect to the larceny charge.2        The judge then

continued the matter without a finding for one year, from

December 2013 through December 2014.     Upon the successful

completion of the one-year period of probation, the charge was

to be dismissed.3


     1 We acknowledge the amicus brief of the Committee for
Public Counsel Services; the American Academy of Addiction
Psychiatry; the American Civil Liberties Union of Massachusetts,
Inc.; the Association for Behavioral Healthcare; the Center for
Prisoner Health and Human Rights; the Center for Public
Representation; the Grayken Center for Addiction Medicine at
Boston Medical Center; the Massachusetts Association of Criminal
Defense Lawyers; the Massachusetts Society of Addiction
Medicine; and Prisoners' Legal Services.

     2   The prosecutor dismissed the charge of obstruction.

     3 In a disposition of a continuance without a finding, a
defendant admits to sufficient facts that the offense occurred
as charged, but the judge does not enter a finding of guilt.
Instead, the matter is continued to a specific date, whereupon
it is dismissed if the imposed conditions have been met. See
                                                                      4


     At that time, the defendant was twenty-one years old.      The

continuance was conditioned on the successful completion of two

programs:     "Stoplift," an Internet-based program designed to

prevent shoplifting recidivism, and a program involving

intensive supervision by the probation service known as level

three "community corrections."     The latter includes office

visits, group meetings, and drug and alcohol screenings.

     b.     Probationary violations.   We summarize the course of

the probationary violations over the next three years as

follows.

     In January 2014, one month after the initial continuance

was imposed, the probation service filed its first notice of

violation.4    The notice related to the defendant's noncompliance



G. L. c. 278, § 18. If the defendant is found to have violated
the conditions imposed in an order of probation, the judge may
convert the continuance to a guilty plea and sentence the
defendant accordingly. Id. See Commonwealth v. Sebastian S.,
444 Mass. 306, 315 (2005).

     4 Where there is reason to believe that a defendant has
violated a condition of probation, a probation officer may
initiate probation violation proceedings by filing a "Notice of
Probation Violation and Hearing." See Rule 4(b) of the
District/Municipal Court Rules for Probation Violation
Proceedings, Massachusetts Rules of Court, at 644 (Thomson
Reuters 2018). At a preliminary detention hearing, a judge
determines whether probable cause exists to believe that the
probationer has violated a condition of the probation order,
and, if so, whether the probationer should be held in custody
pending a final violation hearing. See Rule 5 of the
District/Municipal Court Rules for Probation Violation
Proceedings, supra at 645-646. At a final violation hearing,
                                                                     5


with the requirements of the community corrections program and

her failure to pay court-ordered fees.    A second notice of

violation was filed in March 2014, following a drug screening in

which the defendant tested positive for the presence of

tetrahydrocannabinol (THC).    At a hearing concerning both of

these violations, the defendant, represented by counsel,

stipulated to the underlying facts.    The defendant was found in

violation of the terms of probation and reprobated, and the

continuance -- as it was initially imposed -- remained in

effect.

    In April 2014, the defendant reported to the probation

service and her drug screen returned a positive result for the

presence of THC and cocaine.   Approximately one week later, the

defendant again tested positive for the presence of THC and

cocaine, as well as for amphetamine and morphine.    The probation

service filed its third and fourth notices of violation.

Counsel was appointed, and the defendant was held pending a

final violation hearing.   At the final violation hearing in May

2014, the judge again found the defendant in violation of the

terms of probation.   This time, he modified the terms of



the judge determines whether, by a preponderance of the
evidence, the defendant violated the terms of probation and, if
so, what the appropriate disposition should be. See Rule 8 of
the District/Municipal Court Rules for Probation Violation
Proceedings, supra at 653.
                                                                    6


probation, requiring a substance abuse evaluation, a mental

health evaluation, that the defendant remain drug and alcohol

free,5 and that she participate in a residential treatment

program.    The judge also extended the probationary period until

May 2015.   The defendant subsequently entered into the specified

drug treatment program.

     In October 2014, a warrant issued for the defendant's

arrest when the probation officer became aware that she had left

the court-ordered residential treatment program without

authorization.   The defendant was brought into court, at which

time her drug screening results again were positive.   She was

found in violation, and was reprobated, without any further

modification of the length or terms of probation.

     In November 2014, another warrant was issued for the

defendant's arrest, due to her failure to report to her

probation officer on two occasions.    The warrant remained

outstanding until she came to court one month later, when she

tested positive for the presence of cocaine and THC.   Following

a hearing in December 2014, the judge found the defendant in

violation, reprobated her, and amended the conditions of

probation for a second time, to require that the defendant




     5 The requirement that the defendant remain drug and alcohol
free was implicit in the Community Corrections level three
program, which includes mandatory drug and alcohol screenings.
                                                                      7


complete a different residential drug treatment program.     He

also extended the defendant's term of probation until December

2015.   The defendant was held in custody for several weeks until

a bed became available in that program.

     In January 2015, the defendant entered the second

residential treatment program and remained there for

approximately three months before transitioning to a sober

living program.   She was expelled from the sober living house

shortly thereafter, as a result of using drugs.    The defendant

failed to report to the probation service as required, and

another warrant was issued for her arrest.

     At a July 2015 hearing, the judge found the defendant in

violation of the terms of her probation.   He again modified the

terms of probation to require the defendant to reside at a third

residential drug treatment program.   The defendant entered that

program, but later was asked to leave because of drug use.      A

warrant again issued for the defendant's arrest.   She ceased

contact with her probation officer, and with the court, for the

next thirteen months.

     The defendant eventually telephoned her mother, who had

been actively coordinating with her probation officer in an

attempt to locate the defendant throughout the prior year.      The

defendant reported to her mother that her drug use had spiraled
                                                                     8


out of control and that she had "hit rock bottom."   In October

2016, police officers located and arrested the defendant.

     As of the time of the October 2016 hearing, the defendant

had been in violation of the terms of her probation during most

of the three years of the repeatedly extended continuance.     The

probation service requested that the judge vacate the

continuance and enter a finding of guilt, revoke the defendant's

probation, and sentence her to a term of incarceration of

eighteen months.   Her probation officer reported that the

defendant's family agreed that she was in "great need for

treatment," in addition to needing to be held accountable for

her crime.

     Defense counsel represented that the defendant agreed she

was "not a good candidate for probation," and that she needed a

more structured environment in which to obtain treatment.

Counsel therefore requested that the defendant be sentenced to a

term of incarceration of "at least nine months," a period of

time that he stated was sufficient for her to be assigned to,

and then complete, the structured and intensive treatment

program known as "Howard Street."6


     6 "Howard Street" refers to a secure residential treatment
program at a facility in Hampden County run by the sheriff's
department. The facility has since moved locations and is now
known as the Western Massachusetts Recovery and Wellness Center.
It is designed to provide for the custody, care, and treatment
of substance abusers.
                                                                   9


    Noting the defendant's failure to complete several

residential treatment programs and his concern that many in her

position "don't make it," the judge concluded that the defendant

presented one of the rare cases in which all efforts at

rehabilitation, other than incarceration, had been unsuccessful.

He stated that a sentence of incarceration would be imposed "not

to punish [the defendant] but to make sure that she gets through

a program and is back out on the street safe and alive."

Consequently, the judge revoked the defendant's probation and

sentenced her to two years' incarceration in a house of

correction for the underlying offense, pursuant to G. L. c. 266,

§ 30 (1).   In calculating the length of the sentence, the judge

noted that the defendant would be credited with two months of

"time served," took into account the potential "good time"

credits that she could earn toward early release, and considered

her eligibility for parole after serving one-half of the

sentence.   In doing so, he appeared to have reasoned that the

defendant would serve approximately nine to ten months of the

two-year sentence, a period of time adequate to complete the

program that the defendant had requested.

    Months later, represented by new counsel, the defendant

sought release from the alleged unlawful restraint, as well as a

new sentencing hearing pursuant to Mass. R. Crim. P. 30.     She

argued that the judge had erred in considering rehabilitative
                                                                    10


programming in determining the appropriate length of

incarceration.    The motion was denied.    The defendant appealed,

and we transferred the case from the Appeals Court to this court

on our own motion.7

     2.   Discussion.    a.   Standard of review.   We review the

denial of a motion under Mass. R. Crim. P. 30 for abuse of

discretion or error of law.     See Commonwealth v. Perez, 477

Mass. 677, 681-682 (2017).     See also Commonwealth v. Perez, 480

Mass. 562, 567 (2018).    "Under that standard, the issue is

whether the judge's decision resulted from '"a clear error of

judgment in weighing" the factors relevant to the decision . . .

such that the decision falls outside the range of reasonable

alternatives.'"   Perez, supra at 682, quoting L.L. v.

Commonwealth, 470 Mass. 169, 185 n.27 (2014).8

     b.   Probation revocation.    When a sentencing judge, after

sufficient facts have been admitted, terminates a continuance,


     7 The defendant is no longer incarcerated, rendering moot
her challenge to the order denying the motion for a new sentence
and release from unlawful confinement. See Acting Supt. of
Bournewood Hosp. v. Baker, 431 Mass. 101, 103 (2000).
Nonetheless, we decide the case because it raises important
issues concerning proper sentencing considerations that are
likely to recur in similar circumstances, but to evade review.
See id.

     8 To the extent that the defendant also moved for a new
sentencing hearing pursuant to Mass. R. Crim. P. 30 (b), the
decision to allow such a motion is similarly left "to the sound
discretion of the judge." See Commonwealth v. Scott, 467 Mass.
336, 344 (2014).
                                                                  11


revokes probation, and enters a guilty finding, the judge is

permitted to impose "a sentence or other disposition as provided

by law."   See Rule 9(b) of the District/Municipal Court Rules

for Probation Violation Proceedings, Massachusetts Rules of

Court, at 655 (Thomson Reuters 2018) (noting dispositional

options available to judge following violation of conditions

associated with continuance).   See also Commonwealth v.

Villalobos, 437 Mass. 797, 801 (2002) (when defendant admits to

sufficient facts for purposes of continuance, violation "may

lead to . . . an immediate conviction and sentence . . . during

the continuance period").   When a violation occurs and a

defendant's probation is revoked because the defendant has

"abused the opportunity" offered to avoid incarceration in the

first instance, the defendant is imprisoned not for the

violations that prompted revocation of probation, but, rather,

"the defendant is essentially being sentenced anew on his [or

her] underlying conviction" (citations omitted).   See

Commonwealth v. Eldred, 480 Mass. 90, 97, 102 (2018).

    Here, the defendant does not challenge that a term of

incarceration appropriately was imposed, or that the sentence

fell within the legal limits prescribed by the statute pursuant

to which she had been convicted.   Rather, her challenge is to

the factors considered by the judge in fashioning that sentence.

She contends that, in setting the length of her sentence, the
                                                                    12


judge abused his discretion when he took into account the time

requirements of a rehabilitative program she wished to enter and

had urged upon him.   We discern no abuse of discretion in these

limited circumstances.

    c.   Sentencing considerations.   We have long held that "[a]

judge has considerable latitude within the framework of the

applicable statute to determine the appropriate individualized

sentence."   Commonwealth v. Goodwin, 414 Mass. 88, 92 (1993),

citing Commonwealth v. Celeste, 358 Mass. 307, 309-310 (1970).

"That sentence should reflect the judge's careful assessment of

several goals:   punishment, deterrence, protection of the

public, and rehabilitation."   Goodwin, supra.    In determining

the extent to which a particular sentence will facilitate these

goals, a sentencing judge is tasked with weighing "various,

often competing, considerations."   Rodriguez, 461 Mass. at 259.

Those considerations include, among others, the circumstances of

the crime, the role of the defendant in the crime, the need for

deterrence, the defendant's risk of recidivism, and the extent

to which a particular sentence will increase or diminish the

risk of recidivism.   See id., and cases cited.    Thus, in order

"to impose a just sentence, a judge requires not only sound

judgment" but also information concerning, among other factors,

the defendant's "criminal and personal history."    See id.
                                                                    13


    In fashioning an appropriate and individualized sentence

that takes account of a defendant's personal history, a judge

has discretion to weigh "many factors which would not be

relevant at trial," including the defendant's behavior,

background, family life, character, history, and employment.

See Commonwealth v. Mills, 436 Mass. 387, 399-400 (2002);

Goodwin, 414 Mass. at 92, citing Celeste, 358 Mass. at 310.      See

also Commonwealth v. White, 436 Mass. 340, 343 (2002) (judge may

consider such factors in assessing defendant's "propensity for

rehabilitation").     Taking into account a defendant's substance

abuse issues may be part of this calculus.     See Commonwealth v.

Healy, 452 Mass. 510, 515 (2008) (judge had discretion to

consider defendant's alcohol use problem during sentencing).

See also Sentencing Commission, Advisory Sentencing Guidelines,

at 27 (Nov. 2017) ("[a] just system of punishment" is one that

"provides the defendant with treatment for mental, emotional,

psychological, or physical conditions, including substance

abuse, as needed").    In circumstances in which a defendant

specifically requests a judge's consideration of his or her

substance abuse issues and related need to complete a

rehabilitative program while incarcerated, the judge may take

these factors into account.    See Lannon v. Commonwealth, 379

Mass. 786, 792-793 (1980) (defendant cannot challenge on appeal

proposal that own counsel offered).
                                                                      14


    A judge's discretion to consider external factors, however,

is not unlimited.     Indeed, "[i]t is of paramount importance that

justice be administered impartially, based solely on relevant

criteria for sentencing."    See Mills, 436 Mass. at 401.    For

example, a sentencing judge may not punish a defendant for an

untried criminal offense, Commonwealth v. Souza, 390 Mass. 813,

817 (1984); rely on inaccurate or misleading information in

sentencing, Commonwealth v. LeBlanc, 370 Mass. 217, 221 (1976);

or punish a defendant to direct a personal message of deterrence

to a particular community, Commonwealth v. Howard, 42 Mass. App.

Ct. 322, 327-328 (1997).

    The judge here expressed no personal or private beliefs

regarding the defendant's history that appeared to "interfere

with his judicial role and transform it from that of impartial

arbiter."   Cf. Mills, 436 Mass. at 401.    Nor did he make remarks

indicating that he was punishing the defendant for conduct

"other than that for which the defendant [stood] convicted"

(citation omitted).    Cf. White, 436 Mass. at 341-342.     As part

of his sentencing considerations, the judge took into account

the defendant's request to participate in a particular

rehabilitation program while incarcerated, as well as the actual

amount of time that she would be required to serve in order to
                                                                    15


complete that program.9   We discern no abuse of discretion in

considering those programmatic time constraints, among various

other factors, when fashioning her sentence in the circumstances

here.10

     Indeed, after the defendant's failure to make use of the

opportunity to avoid incarceration while on probation, the judge

sought to maintain an appropriate balance between the

defendant's individualized needs and those of the community in

which she resides.   See Eldred, 480 Mass. at 103.   In so doing,

he considered permissible factors, such as the defendant's

history, behavior, and propensity for rehabilitation while on

probation.   See, e.g., White, 436 Mass. at 343; Commonwealth v.

Doucette, 81 Mass. App. Ct. 740, 744 (2012).11   Because nothing




     9 The judge gave no indication that he otherwise would have
imposed a shorter sentence if it were not for the programmatic
time constraints.

     10The judge, of course, could only recommend that the
defendant be allowed to participate in the Howard Street
program; the power and responsibility of implementing a sentence
reside with the sheriff's department. See Commonwealth v. Cole,
468 Mass. 294, 302 (2014). Similarly, parole eligibility and
good time credits are not within a judge's purview. It appears
that, given the judge's apparent familiarity with the area, the
available programs, and the sheriff's practices, there was
likely reason for those involved to think his recommendation as
to the Howard Street program would carry significant weight.

     11As our cases have long made clear, rehabilitation remains
an important interest served by sentencing. See, e.g.,
Commonwealth v. White, 436 Mass. 340, 343 (2002); Commonwealth
v. Coleman, 390 Mass. 797, 805 (1984).
                                                                   16


in our common law precludes a sentencing judge from considering

a defendant's amenability to rehabilitative programming in

imposing a sentence of incarceration expressly permitted by

statute, we cannot conclude that the judge exhibited a "clear

error of judgment" such that his decision fell "outside the

range of reasonable alternatives" here (citation omitted).     See

Perez, 477 Mass. at 681-682.

    That being said, we emphasize that, while we discern no

abuse of discretion in this case, it is because of the unusual

context in which the challenged sentencing decision was made.

The approach taken here, over a three-year period, consistently

embodied the recognition that incarceration is not the preferred

means of achieving rehabilitation, at least for those whose

minor, nonviolent crimes are related to the effects of substance

abuse.   See, e.g., Deputy Chief Counsel for the Pub. Defender

Div. of the Comm. for Pub. Counsel Servs. v. Acting First

Justice of the Lowell Div. of the Dist. Court Dep't, 477 Mass.

178, 179 (2017) (in drug courts, judge "impose[s] probation to

accommodate a need for treatment rather than a sentence of

incarceration"); Department of Correction, FY16 Gap Analysis

Report, at 3 (Oct. 2017) (noting that forty-one per cent of

eligible individuals did not complete or participate in drug and

alcohol programming in jails and prisons, and thirty-two per

cent had no access to such programming).   At the same time, all
                                                                  17


else had failed; both the defendant's family and the defendant

herself acknowledged the need for incarceration; the defendant

requested to participate, while incarcerated, in a particular

program; and the judge considered that request, along with other

factors, when determining the length of her committed sentence.

Had the constellation of circumstances been otherwise, so might

the result.12

     d.   Federal approach.   Acknowledging that there is no

existing jurisprudence in the Commonwealth that precludes a

sentencing judge from considering a defendant's need for

rehabilitation in imposing a sentence of incarceration, the

defendant urges us to adopt the Federal approach.   See Tapia v.

United States, 564 U.S. 319 (2011).   In Tapia, the United States

Supreme Court relied upon express language in the Federal

Sentencing Reform Act that directs a Federal judge, when

sentencing, to recognize that "imprisonment is not an

appropriate means of promoting correction and rehabilitation."




     12By way of example, even if an imposed sentence is within
the statutory limits and thus legal, we would not be sanguine
about sentencing practices for the same underlying crime if,
following the substance-abuse-related revocation of probation,
the imposed sentence were harsher than it would have been
following the revocation of probation due to other causes.
Moreover, when determining the length of a committed sentence, a
judge's consideration of the time requirements of a
rehabilitation program that the defendant has not voluntarily
requested, but that the judge mandates, is a practice fraught
with peril and generally best avoided.
                                                                    18


Id. at 326, citing 18 U.S.C. § 3582(a).   In interpreting this

provision, the Court held that, although a Federal judge at

sentencing may discuss the opportunities for rehabilitation

within prison, the judge may not impose or lengthen a term of

incarceration solely to ensure that a defendant completes

rehabilitative programming.   See id. at 332.

     The defendant does not point to, and we are unaware of, any

controlling Massachusetts authority that would prohibit a State

trial court judge from considering rehabilitation in imposing a

term of incarceration explicitly permitted by the language of

the criminal statute pursuant to which she was convicted.      As

discussed, in Massachusetts, "it is a rare sentence, whether or

not jail is a part of it, that does not in fact involve . . .

rehabilitation."   Commonwealth v. Power, 420 Mass. 410, 415

(1995), cert. denied, 516 U.S. 1042 (1996), quoting United

States v. Tolla, 781 F.2d 29, 35 (2d Cir. 1986).   Thus, as Tapia

concerned the interpretation of a Federal statute for which

Massachusetts has no analog, we decline to adopt its approach

today.13


     13Other State courts similarly have rejected arguments that
they adopt the reasoning in Tapia v. United States, 564 U.S. 319
(2011), also on the ground that Tapia relies exclusively on the
interpretation of Federal law. See, e.g., Knox v. State, 122
A.3d 1289 (Del. 2015) (unpublished); State v. Baker, 153 Idaho
692, 699 n.2 (Ct. App. 2012). But see State v. Jepsen, 907
N.W.2d 495, 510 (Iowa 2018) (Zager, J., dissenting) (citing
                                                                  19


    3.   Conclusion.   "Trial court judges, particularly judges

in the drug courts, stand on the front lines of the opioid

epidemic."   See Eldred, 480 Mass. at 99.   Here, as in Eldred,

the defendant's underlying crime is substance abuse related, the

probation violations are substance abuse related, and the

relapses associated with those violations may themselves be part

of the recovery process.   See id.   Mindful that judges are to

steer carefully between Scylla and Charybdis when sentencing

such individuals, and that sentencing decisions are bounded by

limits, we are of the view that, given all of the circumstances

present here, the judge did not exceed those limits.

    The order denying the motion for release from unlawful

confinement and for a new sentencing hearing is affirmed.

                                     So ordered.




Tapia, in context of double jeopardy challenge, for proposition
that imprisonment is inappropriate for rehabilitation as
compared to probation).
