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16-P-1413                                                Appeals Court

                  COMMONWEALTH   vs.   JAMES M. BOWEN.


                            No. 16-P-1413.

       Norfolk.       October 4, 2017. - February 23, 2018.

              Present:   Green, Hanlon, & Neyman, JJ.


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


     Indictments found and returned in the Superior Court
Department on September 2, 1999.

     A proceeding for revocation of probation was heard by
Thomas A. Connors, J.; a motion to reconsider was considered by
Douglas Wilkins, J.; and a motion for a new hearing was heard by
Connors, J.


     Stacey Gross Marmor for the defendant.
     Tracey A. Cusick, Assistant District Attorney, for the
Commonwealth.


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

479 (2014), this court held that a defendant's agreement to

waive a probation violation hearing must be knowing and

voluntary.   Id. at 480, 489.    Here, we are asked to determine
                                                                   2


whether a defendant's stipulation during a probation violation

hearing to two alleged violations constituted a breach of due

process within the meaning of Sayyid.     We hold that the

stipulation did not fall within the ambit of Sayyid, and we

discern no due process violation.    Accordingly, we affirm.

     Background.   1.   Convictions and alleged probation

violations.   In 2001, the defendant pleaded guilty in Superior

Court to six counts of aggravated rape.     He was sentenced to

concurrent terms of eight to ten years in State prison on the

first five counts, and a twelve-year sentence of probation to be

served from and after the State prison sentences on the sixth

count.1   The defendant was released from custody in September,

2010, and began serving the twelve-year probation sentence.

     In June, 2013, the defendant was issued a "Notice of

Surrender and hearing(s) for alleged violation(s) of Probation"

(notice of probation violation).    He stipulated that he had

violated the probation conditions, and his probation was

     1
       The defendant has filed multiple motions for a new trial
claiming, inter alia, that his guilty plea was not voluntary,
was the product of coercion, and was the result of ineffective
assistance of counsel. The defendant's first motion for a new
trial was allowed; however, on appeal this court vacated the
order and remanded the matter for further findings after an
evidentiary hearing. Commonwealth v. Bowen, 63 Mass. App. Ct.
579 (2005). After a hearing on remand, the motion for a new
trial was denied, and a panel of this court affirmed the denial.
Commonwealth v. Bowen, 71 Mass. App. Ct. 1110 (2008). The
defendant's second motion for new trial was denied without a
hearing, and a panel of this court affirmed the denial.
Commonwealth v. Bowen, 83 Mass. App. Ct. 1130 (2013).
                                                                     3


extended for an additional year with modified conditions.    In

October, 2013, the defendant was issued another notice of

probation violation.     Following a probation violation hearing in

December, 2013, the defendant was again found to have violated

the probation conditions, but he was still not incarcerated.

Instead, his probation was further extended to 2030 with added

conditions.   On April 16, 2014, a third notice of probation

violation was issued and served upon the defendant while he was

at the Superior Court for a matter relating to his probation.

As the defendant was not present when his case was called, a

warrant issued for his arrest.2

     On May 29, 2014, the defendant was arrested in Florida as a

fugitive from justice.    At the time of his arrest he was neither

wearing a global positioning system (GPS) monitoring device nor

had permission to leave the Commonwealth, as the terms of his

probation required.    In June, 2014, a fourth notice of probation

     2
       After serving the defendant with the notice in Superior
Court, the defendant's probation officer observed the defendant
leave the court before his case was called. She followed him
outside, shouted his name, and continued to shout for him to
stop, but the defendant quickened his pace and ignored her. The
probation officer informed a Superior Court judge of the
defendant's flight, and a warrant for his arrest was issued.
The probation officer then informed a State police sergeant of
the warrant. The sergeant drove to the defendant's residence
and observed the defendant leave the residence and enter a motor
vehicle parked in the driveway. The sergeant called to the
defendant by name and informed him of the warrant for his
arrest. The defendant ignored her orders to stop, drove past
her, and fled at a high rate of speed. The sergeant was not
able to stop the defendant.
                                                                   4


violation issued, alleging eleven separate violations of

probation conditions.3

     2.   Final probation violation hearing.   A Superior Court

judge (sentencing judge) held a two-day probation violation

hearing in January, 2015.   At the outset of the hearing, the

sentencing judge held a sidebar discussion with the probation

officer4 and defense attorney to ascertain whether the matter was

"resolvable."   The probation officer stated that the guidelines

called for a sentence of twelve to eighteen years in State

prison.   Defense counsel stated that at a prior appearance, a

different Superior Court judge had suggested that a sentence of

five to six years would be appropriate.   Defense counsel also

stated that the defendant would stipulate to having left the

Commonwealth and removing the GPS monitoring device from his




     3
       The June, 2014 notice alleged that the defendant had
committed the following probation violations: leaving the
Commonwealth without permission; failure to report to probation;
failure to attend and complete a drug and alcohol program;
failure to attend Alcoholics Anonymous meetings; failure to
maintain the GPS monitoring requirement; failure to register as
a sex offender; failure to comply with a sex offender evaluation
and treatment; failure to pay the probation supervision fee;
"failure to make extraordinary efforts to secure employment";
failure to provide cellular telephone numbers; and failure to
abide by all laws and court orders.
     4
       An assistant district attorney assisted the probation
department at the probation violation hearing.
                                                                     5


leg,5 but that the other technical violations of probation were

at issue.   The sentencing judge replied, inter alia, that "the

[d]efendant apparently wants to dispute all or many of the

violations alleged."    The sentencing judge further stated:

"[W]hat [the prior judge] proposed as a potential [sentence] did

make some sense.   But if that's, that's a nonstarter, then you

know, he's got a right to try the case."     Defense counsel

responded that the defendant was looking "for something less

than five to six."     In response, the sentencing judge stated as

follows:

     "That's fine. Why don't you talk to him, I mean, I
     understand, he wants to dispute many or all of the charges
     and that's fine. We'll hear it and, you know, I'll hear it
     and determine if there's a[] preponderance of the evidence
     and if it's made, then what the appropriate disposition
     is."

     Following a brief recess, the evidentiary portion of the

hearing commenced.6    The probation department called several

witnesses who testified to the defendant's violations of

     5
       Defense counsel stated, in relevant part, "[The defendant]
left the state. . . [t]here's no question about it and he admits
that, he stipulates that, he took the, he slid the GPS
monitoring system off his leg." Defense counsel further sought
to mitigate the seriousness of the violation by advising the
sentencing judge that the defendant "panicked" due to various
factors, including "[h]is father dying, [he] almost [got]
divorced," that "[h]e has two autistic sons[,] and he just had a
lot of stuff going on."
     6
       The Commonwealth ultimately withdrew three of the alleged
probation violations: failure to register as a sex offender,
failure to pay the probation supervision fee, and failure to
abide by all laws and court orders.
                                                                    6


multiple probation conditions.   The evidence included testimony

from the State police trooper, assigned to the violent fugitive

apprehension section, who apprehended the defendant in Florida,

and the Canton police detective who flew to Florida to

effectuate the defendant's return to Massachusetts.

    The defendant testified at the hearing and contested some

of the probation violation allegations.   He did not dispute that

he had left the Commonwealth and removed the GPS monitoring

device.   Indeed, he admitted that he had "yanked" the GPS

monitoring device from his body and "threw it out the window" of

his motor vehicle after leaving his residence, and that he had

traveled to Florida.   However, defense counsel attempted to

minimize those violations by pointing to the defendant's

desperation, based on his past lengthy incarceration and fear of

returning to jail, and citing to a defense witness's testimony

regarding the animosity displayed by the surrendering probation

officer toward the defendant.

    Following the hearing, the sentencing judge determined that

the Commonwealth had sustained its burden of proving by a

preponderance of the evidence that the defendant left the

Commonwealth without permission, failed to maintain the GPS

monitoring device, failed to follow through with the sex

offender evaluation and treatment, failed to provide cellular

telephone information, and failed to report to probation.    The
                                                                     7


sentencing judge concluded that the Commonwealth did not prove

violations regarding the failure to attend Alcoholics Anonymous

meetings, to complete a drug and alcohol program, and to use

extraordinary efforts to find employment.     The sentencing judge

imposed a sentence of five to nine years in State prison.

    The defendant filed a motion to reconsider, asking that a

lower maximum on his sentence be imposed, consistent with the

five- to-six year sentence that a prior Superior Court judge had

purportedly suggested.    The motion to reconsider was denied.     In

January, 2016, the defendant filed a motion requesting a "new

probation revocation hearing" (motion for a new hearing),

contending that the sentencing judge failed to ascertain whether

the two factual stipulations made by the defendant were knowing

and voluntary.   The sentencing judge denied the motion.    This

appeal ensued.

    Discussion.    1.    Validity of stipulation to two alleged

violations.   Citing Sayyid, the defendant contends that he is

entitled to a "new probation revocation hearing" because his

stipulation to the removal of the GPS monitoring device and

flight to Florida was not knowing and voluntary.     In Sayyid, we

held that "a defendant's agreement to waive a probation

[violation] 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."     Id. at 489.
                                                                    8


There, we determined that the defendant's stipulation to

multiple violations was not knowing and voluntary, where he was

mentally impaired and there was other evidence in the record of

his lack of understanding of the ramification of the

stipulation.   Id. at 492.   For the following reasons, we

conclude that Sayyid is inapplicable in the instant case.

     Sayyid stands for the proposition that in a probation

violation proceeding, "a stipulation to probation violations

resulting in waiver of a hearing must be knowing and voluntary"

(emphasis supplied).   Id. at 480.   Here, the defendant did not

waive the hearing.   To the contrary, the sentencing judge held a

two-day hearing at which the Commonwealth presented testimony

from five witnesses and entered nine exhibits into evidence.

Defense counsel cross-examined each witness and called two

witnesses to testify on the defendant's behalf.7   In addition,

the defendant testified, challenged the validity of various

allegations, and contended in closing argument that the

Commonwealth had not met its burden of proving certain

allegations.   As the sentencing judge stated in denying the

motion for a new hearing, "[T]he defendant proceeded to the


     7
       At the hearing, the defendant's therapist testified that
she diagnosed him as suffering from depression and "PTSD" --
posttraumatic stress disorder -- that presented in the form of
fear of returning to jail. Her testimony was offered to explain
why the defendant had removed his GPS monitoring device and fled
to Florida.
                                                                    9


contested revocation hearing as he had opted; [and] evidence

embodied in the two factual stipulations was presented to the

court during the course of the hearing, which he was free to

challenge, minimize, or contradict."

     In short, unlike Sayyid, in which the defendant waived the

hearing itself -- i.e., the process that was due to him -- the

defendant here received all of the due process to which he was

entitled.   See Commonwealth v. Durling, 407 Mass. 108, 111-114

(1990) (detailing the minimum requirements of due process at a

probation violation hearing).   Where the defendant did not waive

the hearing, Sayyid is inapposite.8

     Of further note, the defendant's argument ignores the

distinction between stipulating to waive a procedure that

carries with it certain constitutional protections (e.g.,

waiving a probation violation hearing, waiving trial by jury, or

waiving the right to counsel) and stipulating to a fact.     See

Commonwealth v. Myers, 82 Mass. App. Ct. 172, 181-182 (2012).


     8
       At oral argument, the defendant contended that his claim
of a due process violation falls squarely within the holding in
Sayyid. However, he argued that, in the alternative, an
expansion of Sayyid would be warranted. We decline the
defendant's invitation, and we note that our ruling in Sayyid
does not preclude a judge from accepting a factual stipulation
at a probation violation hearing without first conducting a
colloquy or inquiry into whether the defendant agreed to the
stipulation knowingly and voluntarily. To the contrary, as
detailed supra, Sayyid applies only to stipulations "resulting
in waiver of a [probation violation] hearing." Sayyid, 86 Mass.
App. Ct. at 480.
                                                                  10


The latter carries no constitutional implication.    Sayyid, by

contrast, was concerned with the waiving of constitutional

protections without some safeguard.

     2.   Ineffective assistance of counsel.   The defendant also

contends that defense counsel rendered ineffective assistance by

erroneously advising him that if he stipulated to removing the

GPS monitoring device and leaving the Commonwealth, the judge

would sentence him to not more than five to six years in State

prison.   This claim is unpersuasive.

     To sustain a claim of ineffective assistance of counsel,

the defendant must show that the behavior of counsel fell below

that of an "ordinary fallible lawyer" and that such failing

"likely deprived the defendant of an otherwise available,

substantial ground of defence."   Commonwealth v. Saferian, 366

Mass. 89, 96 (1974).   See Commonwealth v. Millien, 474 Mass.

417, 432 (2016) (second prong of ineffective assistance test met

if there is substantial risk of miscarriage of justice arising

from counsel's failure).

     The defendant did not raise the issue of ineffective

assistance of counsel, or cite to legal authority supporting

such an argument, in any posttrial motion.9    Instead, the


     9
       In his motion for a new hearing the defendant contended,
in part, that he had stipulated to two of the alleged probation
violations because his counsel had advised him that the judge
would "cap" his sentence at five to six years in State prison.
                                                                   11


defendant raises this claim here on appeal, relying on the

affidavits he had submitted in support of his motion for a new

hearing.   Claims for ineffective assistance of counsel are

disfavored if they are raised for the first time on direct

appeal.    Commonwealth v. Zinser, 446 Mass. 807, 811 (2006).

Such a claim "should only be brought on direct appeal when the

factual basis of the claim appears indisputably on the trial

record."   Commonwealth v. Keon K., 70 Mass. App. Ct. 568, 573-

574 (2007).   This is not such a case.

    We conclude that defense counsel's strategy at the

probation violation hearing of explaining the reasons for the

defendant's departure from the Commonwealth and the GPS

violation was not an unreasonable decision.    See Commonwealth v.

Rondeau, 378 Mass. 408, 413 (1979) (courts will not "second

guess" counsel's "arguably reasoned tactical or strategic

judgments," but will require that counsel's judgments be

"manifestly unreasonable" in order to find ineffective

assistance of counsel) (quotations omitted).    This is

particularly so where the defendant did not argue below, or to

this court, that he had any viable defense to those alleged

violations.   Such an argument would have been futile in view of


Thus, he argued, those stipulations "cannot be deemed to have
been a knowing and intelligent waiver of his due process
rights." He did not claim, however, that his counsel's conduct
constituted ineffective assistance of counsel and did not cite
legal authority relating thereto.
                                                                     12


the overwhelming evidence introduced at the probation violation

hearing.   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 five to six

years in State prison, likely deprived him of an otherwise

available, substantial ground of defense.

    The defendant's argument further ignores that, as discussed

supra, the sentencing judge conducted an extensive probation

violation hearing.   Not only did the Commonwealth present strong

and unchallenged evidence proving the violations, but also

defense counsel tested the Commonwealth's witnesses and evidence

on cross-examination and presented evidence attempting to

mitigate the seriousness of the violations.    The defendant also

testified and admitted to the very violations at issue.     For all

of these reasons, the defendant's claim of ineffective

assistance is unavailing.

    3.     Reference to restraining orders in sentencing.   The

defendant argues that the sentencing judge impermissibly

considered the existence of restraining orders in crafting the

five- to nine-year State prison sentence.     As the defendant did

not raise this claim before the judge at sentencing, in his

motion for reconsideration, or in his motion for a new hearing,

our review is limited to whether any alleged error created a
                                                                       13


substantial risk of a miscarriage of justice.       See Commonwealth

v. Lender, 66 Mass. App. Ct. 303, 307 (2006).

     The sentencing judge's observation regarding entries on the

defendant's board of probation record was not improper.      See

ibid.   Viewed in context, the brief reference to the restraining

orders was relevant to the sentencing judge's discretionary

decision whether to revoke or modify the conditions of probation

and did not serve as a basis for the sentence imposed.      See

Commonwealth v. Herrera, 52 Mass. App. Ct. 294, 295 (2001).        We

discern no error and are confident that the sentencing judge

relied solely on legally acceptable criteria in fashioning the

sentence imposed in this case.   Compare Commonwealth v. Johnson,

27 Mass. App. Ct. 746, 751-752 (1989).

     Conclusion.   The order revoking probation and imposing the

sentence and the orders denying the motions for reconsideration

and for a new hearing are affirmed.

                                      So ordered.
