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16-P-1474                                              Appeals Court

                     M.M.    vs.   CHARLES DOUCETTE.


                              No. 16-P-1474.

            Essex.          May 8, 2017. - August 4, 2017.

              Present:      Meade, Hanlon, & Sacks, JJ.


Abuse Prevention. Protective Order.        Due Process of Law, Abuse
     prevention, Notice. Notice.



     Complaint for protection from abuse filed in the Peabody
Division of the District Court Department on February 15, 2011.

    The case was heard by Matthew J. Nestor, J.


    Charles Doucette, pro se.


    HANLON, J.   The defendant, an inmate at the Massachusetts

Correctional Institution at Concord, appeals, pro se, from an

order of the District Court, issuing a permanent abuse

prevention order against him, pursuant to G. L. c. 209A

(restraining order).     He argues that he was denied an

opportunity to be heard on the issue of whether the permanent
                                                                      2


order was wrongfully issued.     We agree and remand the matter for

a new hearing.

     Background.   The relevant facts are fairly straightforward.

On February 15, 2011, a judge of the Peabody District Court

issued a restraining order after an ex parte hearing "at which

plaintiff was present and defendant was not present, to expire

on [February 28, 2011]."1   A hearing after notice was scheduled

for February 28, 2011.

     The District Court docket sheet indicates that, on February

16, 2011, the day after the ex parte hearing, a court officer of

the Salem District Court served the defendant in hand with the

ex parte restraining order, which included the scheduled date

for the hearing after notice.2    On February 28, 2011, as



     1
       The judge ordered the defendant not to abuse the
plaintiff, not to contact her or her minor child, to stay away
from her residence "wherever that may be," and not to have a
gun, a license to carry a firearm, a firearm identification
card, or ammunition. The plaintiff's address was impounded.
The defendant was permitted to retrieve his personal belongings
in the company of a police officer at a time agreed to by the
plaintiff.
     2
       We infer from the fact that a court officer served the
restraining order that the defendant was before the court,
likely under arrest for the underlying incident. See Doucette
v. Massachusetts Parole Bd., 86 Mass. App. Ct. 531, 532 (2014)
("On February 20, 2007, Doucette was released on parole from a
life sentence for murder in the second degree. . . . Four years
later, Doucette was arrested and charged with assault by means
of a dangerous weapon, intimidation of a witness, and threats,
charges which arose from an incident with his then girlfriend.
A parole violation detainer issued, listing violations based on
                                                                     3


scheduled, a hearing after notice was held and the judge

extended the restraining order for one year until February 27,

2012.    The docket indicates that the plaintiff was present and

the defendant was not present.    On March 2, 2011, the docket

indicates that a copy of the extended order was left at the

defendant's "last and usual abode."    The docket does not

indicate where that abode was located, or whether it was the

address that the defendant had been ordered to stay away from.

     At the next scheduled hearing, a year later, on February

27, 2012, the restraining order was made permanent without

modification.   According to the docket sheet, "the plaintiff was

present and the defendant was not present."    The defendant's

absence from that hearing was explained by a further note:

"defendant incarcerated."3   The defendant represents that he did

not receive any notice of that hearing before it was held.       A

docket entry dated March 9, 2012, indicates that the defendant

was served in hand with the permanent restraining order after

the hearing, presumably at the place where he was then

incarcerated.




this incident, as well as other violations previously noted by
his parole officer").
     3
       The defendant was acquitted of all of the charges in the
underlying criminal case on May 26, 2011. However the parole
board unanimously voted to revoke his parole on November 10,
2012. Doucette, supra at 532-533.
                                                                      4


     On December 3, 2012, the defendant filed a motion to vacate

the permanent restraining order, along with an affidavit and a

petition for a writ of habeas corpus ad testificandum.     While a

significant portion of the motion and the affidavit concerned

the merits of the case, the defendant also argued in the motion

that the permanent restraining order had been issued without

notice to him "which prevented him from being heard."

     The motion and the petition were denied without comment on

December 12, 2012, the day they were docketed.    A subsequent

motion for reconsideration was also denied.    The defendant filed

a notice of appeal to the Appellate Division of the District

Court dated February 7, 2013; it was docketed on February 12,

2013.    The docket shows no further activity until 2016, when the

defendant began to seek funds to transcribe the recording of the

February 27, 2012, hearing that resulted in the permanent

restraining order, along with some other documents.     That motion

was denied, as were two additional motions to vacate the order,

along with motions for a writ of habeas corpus and for

reconsideration of the motion to vacate the order.    On June 27,

2016, the Appellate Division of the District Court reversed a

portion of the order denying the motion defendant's for funds to

transcribe the hearing, and the record was assembled for this

court.
                                                                      5


    Discussion.      We begin with the well-established principle

that a defendant in any case has a right to notice and an

opportunity to be heard.    See Mullane v. Central Hanover Bank &

Trust Co., 339 U.S. 306, 314 (1950) ("An elementary and

fundamental requirement of due process in any proceeding which

is to be accorded finality is notice reasonably calculated,

under all the circumstances, to apprise interested parties of

the pendency of the action and afford them an opportunity to

present their objections. . . .    The notice must be of such

nature as reasonably to convey the required information, . . .

and it must afford a reasonable time for those interested to

make their appearance.")

    This principle has been reaffirmed in the context of

proceedings pursuant to G. L. c. 209A, both by the courts and by

the Commonwealth of Massachusetts Trial Court, Guidelines for

Judicial Practice:    Abuse Prevention Proceedings (rev. Sept.

2011), http://www.mass.gov/courts/docs/209a/guidelines-2011.pdf

[https://perma.cc/M9MV-8ZXZ] (Guidelines).     "Specifically, the

statute and [G]uidelines contemplate that notice will be given

to the defendant and an evidentiary hearing will be held within

ten days of the temporary, ex parte order.     Barring an agreement

of the parties or emergency circumstances, both sides are

entitled to an evidentiary hearing within ten days."     Singh v.

Capuano, 468 Mass. 328, 331 (2014).     In C.O. v. M.M., 442 Mass.
                                                                   6


648, 656-657 (2004), the Supreme Judicial Court addressed the

same issue:

    "[General Laws c. 209A, § 4,] explicitly states: 'the
    court shall give the defendant an opportunity to be heard
    on the question of continuing the temporary order.' . . .
    This court has determined that '[t]he right of the
    defendant to be heard [in a G. L. c. 209A proceeding]
    includes his right to testify and to present evidence. A
    defendant has a general right to cross-examine witnesses
    against him.' Frizado v. Frizado, 420 Mass. 592, 597
    (1995). . . . Furthermore, this court has recognized that
    G. L. c. 209A proceedings may implicate a defendant's
    constitutional due process rights. Frizado v. Frizado,
    supra at 598 ('[W]hether a defendant's constitutional
    rights have been violated will depend on the fairness of a
    particular hearing'). Due process requires that the
    defendant be given an opportunity to testify and present
    evidence. See Commonwealth v. Delaney, 425 Mass. 587, 591
    (1997), cert. denied, 522 U.S. 1058 (1998), quoting Matter
    of Kenney, 399 Mass. 431, 435 (1987) ('[t]he fundamental
    requisite of due process is an opportunity to be heard at a
    meaningful time and in a meaningful manner')."

    The Guidelines are more specific.   See, e.g., Guidelines

§ 1:00, at 8 ("In General. . . .   Orders After Notice.   Abuse

prevention orders issued under c. 209A that are not issued on an

emergency or ex parte basis require the filing of a complaint,

notice to the defendant and an opportunity for the defendant to

be heard").   Guidelines § 1:02, at 11, entitled "Due Process

Considerations," provides:

    "The adjudication of cases by a neutral court is a
    fundamental element of due process. In c. 209A cases, as
    in all other court proceedings, the court is responsible
    for protecting the rights of the parties and adjudicating
    each complaint on a case-by-case basis.

    "Particular care is warranted regarding the following:
                                                                    7


    ". . .

    "(B) The court should require evidence of notice to the
    defendant before issuing an order for longer than ten court
    business days."

    This right to notice and an opportunity to be heard may be

forfeited, however.   In particular, G. L. c. 209A, § 4, fourth

par., as appearing in St. 1990, c. 403, § 4, provides that,

"[i]f the defendant does not appear at such subsequent hearing

[i.e., the hearing after notice], the temporary order shall

continue in effect without further order of the court."    See

Guidelines § 5:05, at 103 ("Failure of the Defendant to Appear.

If the defendant fails to appear at the hearing after notice,

and the plaintiff does appear, and if there is evidence of

notice of the hearing to the defendant and no reason for

excusing the defendant's absence, the court should consider the

defendant to have forfeited his or her opportunity to be heard.

In such cases the order after notice may issue as the court

deems appropriate, and the existing terms of the ex parte order

may be modified").

    Here, at the hearing after notice (the second of the three

hearings, held on February 28, 2011), the judge had information,

by way of a return of service, that the restraining order had

been served in hand on the defendant at the Salem District Court

on February 16, 2011, the day after it was issued.   As a result,

the judge knew that the defendant had actual knowledge of the
                                                                     8


scheduled hearing.   With the benefit of hindsight, we can say

that, at that time, the defendant almost certainly was

incarcerated; however, the record does not contain any

information that would have informed the judge of that fact.

     In addition, the mere fact of the defendant's incarceration

at the time of the hearing would not have prevented the judge

from extending the restraining order in the absence of some

indication that the defendant wished to attend and be heard, so

long as the defendant had knowledge that the hearing was to be

held.    See Commonwealth v. Henderson, 434 Mass. 155, 162-163

(2001) ("Nothing in the record hints that the defendant desired,

or made any effort, to attend or to reschedule the hearing").

As a result, the order was properly extended for one year.4      A

copy was then left at the defendant's "last and usual abode."5



     4
       This statement that the order was properly extended is
limited to the question of the defendant's notice and right to
be heard. The record does not contain information about what
the plaintiff told the judge in support of her request to extend
the ex parte order. See Iamele v. Asselin, 444 Mass. 734, 739
(2005) ("The inquiry at the extension hearing is whether the
plaintiff has shown by a preponderance of the evidence that an
extension of the order is necessary to protect her from the
likelihood of 'abuse' as defined in G. L. c. 209A, § 1").
     5
       In addition, for the duration of that extended restraining
order, the defendant was required to abide by it -- even if he
did not have personal knowledge that it had been extended --
because the initial order had warned him that the order might be
extended with (or without) modifications. See Commonwealth v.
Delaney, 425 Mass. 587, 590 (1997), cert. denied, 522 U.S. 1058
(1998) ("We conclude that personal service of the extended order
                                                                      9


     One year later, on February 27, 2012, at the time the

permanent restraining order was issued, the situation was

different.    As noted, the plaintiff was present and the

defendant was not present.    Service of the extended order

setting this date had occurred at the defendant's last and usual

address, not in hand as before.    In addition, at least by the

next day, there was information that the defendant was

incarcerated.    At that point, there was no way to know whether

the defendant had, in fact, received the notice left at his last

and usual address, or if he had actual knowledge of this third

hearing, or that the order could be extended again, or made

permanent.

     Guidelines § 4:07, at 90, is clear that "[s]ervice should

be made in hand, unless the court specifies otherwise."6      While



is not required"). In Delaney, the court quoted with approval
the language from the ex parte order that

     "warned the defendant that, if he failed to appear, 'an
     extended or expanded [o]rder may remain in effect.'
     Section 4 [of G. L. c. 209A] mandates that 'the temporary
     order[] shall continue in effect without further order of
     the court' when the defendant fails to appear (emphasis
     added). [There t]he jury could have found that the
     defendant had actual and constructive notice of the order
     and that it continued in effect after the hearing date. In
     these circumstances the service of the extended order on
     the defendant was not a prerequisite to his prosecution for
     violating the terms of the order."
     (Footnotes omitted.) Id. at 591-592.
     6
         Guidelines § 6:03, at 119 provides, in pertinent part,
                                                                  10


it is true that the commentary to Guidelines § 5:05, at 104,

suggests that when the defendant cannot be located for personal

service, "notice can be given in several ways, including service

at last and usual address, leaving at an address a defendant is

known to frequent (e.g., parents' home) and notice by

publication," this type of notice, through alternative service,

meets only the civil standard for the validity of the

outstanding order.   Without additional evidence of the

defendant's actual knowledge of the restraining order and its

terms, he cannot be convicted for violating it.7   Commonwealth v.

Silva, 431 Mass. 401, 403-404 (2000).   See Commonwealth v.

Kulesa, 455 Mass. 447, 452 (2009); Commonwealth v. Shangkuan, 78

Mass. App. Ct. 827, 829 (2011).




     "Service of the order after notice should be made in-hand
     by court personnel when the defendant is before the court
     for the hearing after notice or for any other purpose
     . . . . If the defendant does not appear, the order must
     be transmitted to the police for service in accordance with
     G. L. c. 209A, § 7. The court should require that such
     service be made in the same manner as service of the ex
     parte order or in whatever manner is most likely to result
     in actual notice to the defendant."

(Emphasis added.) Thus, although Guidelines § 4.07 is entitled
"Transmission of Ex Parte Orders to the Police for Service on
the Defendant," it also applies to service in other
circumstances.
     7
       While this may seem contradictory, in practice it means
that, once the defendant acquires actual knowledge of the
outstanding order, he is thereafter bound by it unless or until
it is modified or terminated by a judge.
                                                                    11


    As a result, here, the better practice would have been to

extend the restraining order pending a new hearing on the issue

of whether the permanent order should issue; to attempt to

determine where the defendant was incarcerated; and then to send

a new notice to the defendant with a copy of the order at issue

and an explanation of the process for securing his presence in

court for the hearing.     As the commentary to Guidelines § 4:07,

at 92, explains,

    "[i]ncarcerated defendants have the right to be heard on a
    requested extension of the ex parte order at a hearing
    after notice. The court should take steps to inform them
    of this right and to secure their presence in court if
    requested to do so. In the alternative, the court may
    issue a writ of habeas corpus sua sponte. While the court
    is under no obligation to issue a writ of habeas corpus
    absent a request by the defendant, Commonwealth v.
    Henderson, 434 Mass. [at] 163 n.12 . . . the issuance of a
    writ of habeas corpus is the preferred practice so that
    notice is clear in the event the defendant is subsequently
    charged with violating the restraining order."

Significantly, however, the court in Henderson upheld the

defendant's conviction because "[n]othing in the record hint[ed]

that the defendant desired, or made any effort, to attend or to

reschedule the hearing."    Id. at 162-163.   For that reason, we

cannot say that, in this case, issuing the permanent order was

error.

    The error in the proceedings here came when, after the

defendant was served in hand in prison with the permanent

restraining order (approximately ten days after it was issued)
                                                                 12


the defendant did file a motion asking to be heard, along with

an affidavit representing that he had not had notice of the

hearing and that he wished to appear and present his defense.

He also filed a petition for a writ of habeas corpus ad

testificandum.   As noted, that motion and petition were docketed

in the court on December 12, 2012, and immediately denied

without comment.   Significantly, at that point, the judge had

notice that the defendant wished to be heard and a genuinely

plausible representation that he had no previous notice of the

hearing (since the order had been served at an unspecified last

and usual abode when he was incarcerated).

    For that reason, a writ of habeas corpus should have issued

to secure the defendant's presence in court and to give him, and

the plaintiff, an opportunity to be heard.

    "Courts should make efforts 'to secure [the defendant's]
    presence in court if requested to do so.' Commentary to
    § 4.07 of the Guidelines for Judicial Practice: Abuse
    Prevention Proceedings (Oct. 1996). 'If the court does not
    issue a writ of habeas corpus for the defendant to appear
    at the . . . hearing, the defendant has no meaningful
    opportunity to exercise his or her right to be present.'
    A.J. Cabral, Obtaining, Enforcing and Defending c. 209A
    Restraining Orders in Massachusetts § 2.8.2, at 2-13 (Mass.
    Continuing Legal Educ. 1997)."

Henderson, supra at 163 n.12.

    For the foregoing reasons, the matter is remanded to the

District Court for further proceedings consistent with this

opinion.   The restraining order shall remain in effect until the
                                                               13


hearing at which, after reasonable notice to both parties and an

opportunity for them to be heard, the judge shall decide whether

the order should continue permanently, or for a different period

of time, or whether it should be terminated.

                                   So ordered.
