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16-P-1200                                             Appeals Court

              COMMONWEALTH   vs.   MARCUS M., a juvenile.


                             No. 16-P-1200.

             Suffolk.     June 6, 2017. - July 27, 2017.

               Present:   Green, Hanlon, & Kinder, JJ.


Practice, Criminal, Revocation of probation.      Juvenile Court,
     Probation.



     Complaints received and sworn to in the Suffolk County
Division of the Juvenile Court Department on December 19, 2014.

     A proceeding for revocation of probation was had before
Peter M. Coyne, J.


     Alison R. Bancroft for the juvenile.
     Julianne Campbell, Assistant District Attorney, for the
Commonwealth.


    HANLON, J.     After a probation violation hearing, a judge in

the Juvenile Court found that the juvenile had violated the

terms of his probation because he was charged three times with

subsequent offenses allegedly committed while he was on

probation.    The judge committed the juvenile to the Department
                                                                   2


of Youth Services (DYS) until his eighteenth birthday.      The

juvenile now appeals, arguing that the only evidence offered on

two of the three offenses was his court activity record

information (CARI) record indicating that new complaints had

issued.   While we agree with the judge that the evidence

supported a finding of violation regarding one offense on one

complaint, for which there was other evidence, judicial notice

of the CARI records, without more, was insufficient to support

finding the other two violations.

    Background.     The juvenile was placed on probation and his

case continued without a finding, on May 8, 2015, after he

admitted to facts sufficient to support findings of delinquency

on charges of malicious destruction of property and vandalizing

property.   Ten days later, a probation officer issued a notice

of probation violation after the juvenile was arrested for

possession of a firearm, possession of ammunition, carrying a

rifle or shotgun on a public way, and assault by means of a

dangerous weapon.   The probation case was continued a number of

times and, on February 10, 2016, a second notice of probation

violation was served on the juvenile as a result of other new

charges, this time, affray and disturbing of public assembly.

On March 11, 2016, a third notice of probation violation issued,

alleging a "violation of the criminal law, namely, larceny."
                                                                     3


    At the probation violation hearing in June, 2016, a Boston

police sergeant testified that he had responded to a call

regarding a dispute among neighbors on Blue Hill Avenue in

Boston.    When he arrived, an individual told the sergeant that

"someone had a firearm and threatened [that individual]."     The

sergeant and other officers spoke to all of the parties present

and then left the area; they were called back a short time

later.    On his return, the sergeant saw a large group of young

males on the street run into a nearby house.    He followed them

and, eventually, seized the defendant.   Nearby was a backpack

and, in the backpack, were two loaded firearms.    At the end of

the probation violation hearing, the judge, explicitly crediting

the sergeant's testimony, found that the juvenile had violated

the terms of his probation "by committing a new offense, namely

. . . the possession of firearm charge."

    Counsel for the juvenile then inquired about the status of

the other pending probation violations and, after some

discussion, the judge added, "And as to the affray and the

disturbing of public assembly, I find that by a preponderance of

the evidence that he's in violation for that based upon the CARI

record.    And as to the larceny, I find by a preponderance of the

evidence that he violated as to that as well.     So it's limited -

- the violations are limited to the three new offenses."

Defense counsel objected, pointing out that, "at the hearing,
                                                                       4


there was no evidence submitted whatsoever on those two

particular charges.   The Probation Department didn't even seek

to admit the police report."   The judge noted the objection and

stated that he was "taking judicial notice of the CARI."     As

noted supra, the judge then committed the juvenile to DYS until

his eighteenth birthday.

     Discussion.   Initially, the juvenile argued that there was

insufficient evidence to find any violation of probation.

However, he now concedes that that argument "has been rendered

moot by [his] subsequent plea of delinquency" to a reduced

charge of possession of a firearm without a firearm

identification card, in violation of G. L. c. 269, § 10(h).1      We

agree.   See Commonwealth v. Joyner, 467 Mass. 176, 190 (2014),

quoting from Commonwealth v. Maggio, 414 Mass. 193, 198 (1993)

("Because it rests on a finding of guilt beyond a reasonable

doubt, however, '[a] criminal conviction . . . adequately

protects the probationer's right to due process, and may serve

as the basis for a summary [finding of a probation violation]

even though the judge lacks the factual information to make an

independent determination that a probation violation has

occurred.'").



     1
       The remaining counts on that complaint were dismissed at
the request of the Commonwealth.
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     In addition, both the Commonwealth and the juvenile now

agree that the judge erred in finding a violation based on the

new charges of larceny, public affray, and disturbing of public

assembly.   We agree with that as well.   See Commonwealth v.

Emmanuel E., 52 Mass. App. Ct. 451, 453 (2001), quoting from

Commonwealth v. Calvo, 41 Mass. App. Ct. 903, 904 (1996) ("The

mere filing of criminal charges against a probationer is not

enough to show a violation of probation . . . because it does

not give the probationer a realistic chance to confront his

accusers and meet the evidence against him").

     However, citing Commonwealth v. Vargas, 475 Mass. 86, 93

(2016), the Commonwealth now contends "that error is immaterial"

because the finding of a probation violation and resulting

commitment to DYS were adequately supported by the agreed-upon

firearm violation.   We are not persuaded.   In Vargas, the judge

found that the defendant had violated the terms of his probation

by using marijuana and Vargas, on appeal, claimed that he was

entitled to use marijuana because he had obtained a certificate

permitting him to use marijuana for medical purposes.    Id. at

89-90.   The Supreme Judicial Court rejected the claim for

several reasons2 but "conclude[d] also that even if the defendant


     2
       Specifically, the Supreme Judicial Court rejected the
defendant's claim "that the judge [in the probation violation
hearing] was prohibited by [the medical marijuana law, St. 2012,
c. 369 (act), establishing immunity for the medical use of
                                                                  6


were entitled to immunity for the medical use of marijuana, the

judge could properly sentence the defendant for violations

independent of the use of marijuana."   Id. at 92.

    On the other hand, in Commonwealth v. Arroyo, 451 Mass.

1010, 1011 (2008), the court held that it was error to consider

conduct that occurred after the end of the defendant's

probationary period in deciding whether he had violated the

terms of his probation.   While there were other violations of

probation properly established, the Arroyo court concluded

nonetheless that the case should be remanded for resentencing,

stating:

    "[I]t is also true that not every violation requires
    revocation. Commonwealth v. Faulkner, 418 Mass. 352,
    365 n.11 (1994). 'There are two components to the
    decision to revoke probation: a retrospective factual
    question whether the probationer has violated a
    condition of probation and a discretionary
    determination by the judge whether violation of a
    condition warrants revocation of probation.' Id. In
    making the discretionary determination whether to
    revoke the defendant's probation, the judge should not
    have weighed evidence of the defendant's
    postprobationary term conduct. The same also holds


marijuana], from sentencing for probation violations relating to
marijuana because -- prior to the sentencing hearing -- he had
obtained a certificate for the medical use of marijuana. . . .
[The court noted that the] judge was not bound by any such
restraint where, prior to acquiring the certificate, the
defendant agreed to conditions of probation prohibiting the use
of marijuana and failed to secure a modification of that
condition based on his later acquired qualifying patient status.
Nor was the defendant a qualifying patient entitled to immunity
under the act when he violated the conditions of his probation
by using marijuana prior to acquiring the certificate." Vargas,
supra at 91-92.
                                                                     7


     true with respect to the judge's determination of what
     sentence to impose after deciding to revoke probation.
     [Here], a fair reading of the sentencing transcript
     indicates that, while the judge did base his
     revocation and sentencing decisions in part on events
     that occurred during the probationary term, . . . he
     also relied on postterm conduct. In particular, the
     record reflects that the postterm allegations of
     assault and battery were a substantial factor in the
     judge's decision to impose a State prison sentence of
     from three to five years."

Ibid.   The Vargas court did not cite Arroyo, or provide guidance

for distinguishing it but, after consideration, we are persuaded

that the case before us is more like Arroyo than Vargas.

     In Vargas, the defendant was on probation for armed

robbery.   475 Mass. at 88.   There were many probation violations

alleged; for the most part they were so-called "technical"

violations in that they did not allege new criminal conduct,

apart from the repeated illegal use of marijuana.    Id. at 89.

The defendant also failed to report for drug testing and to the

office of community corrections as ordered.    Id. at 90.   He was

given several additional opportunities to complete probation

and, finally, at a hearing on the third notice of probation

violation, the judge terminated probation and sentenced the

defendant to incarceration.   Id. at 91.   The Supreme Judicial

Court affirmed, noting, "Last, we view with disfavor a

defendant's agreement to refrain from the use of marijuana in

exchange for probation on a life felony and his later attempt to

repudiate that agreement by acquiring a certificate for the
                                                                     8


medical use of marijuana after he has violated the probation

condition prohibiting the use of marijuana."    Id. at 94.

    Here, the juvenile received a continuance without a finding

for each of the underlying offenses, and was committed to DYS

for his first probation violation.   While the nature of that

violation, that is, possession of more than one loaded firearm,

committed ten days after he was placed on probation and shortly

after an individual reported being threatened by a group of

young people with firearms, certainly would have justified the

judge's decision to revoke probation and to commit the juvenile

to DYS, we cannot be confident that his decision was not

substantially influenced by the fact that, while the probation

violation hearing was pending -- and the juvenile was released

to the custody of his mother -- he was arraigned on two

additional complaints.    "In these circumstances, it is not for

an appellate court to speculate 'what action the judge would

have taken had [he] found the defendant in violation of

probation based [only] on the violation[ properly found].'

Commonwealth v. Aquino, [445 Mass. 446,] 450-451 [(2005)].      To

do so would effectively, and improperly, supplant the judge's

opportunity to exercise his discretion, on appropriate evidence,

in the first instance."    Arroyo, 451 Mass. at 1011.

    Accordingly, we vacate the order revoking the juvenile's

probation, and remand the case to the Juvenile Court for
                                                                 9


consideration of the appropriate disposition, based on the

firearm offense that was established by the evidence presented

at the probation violation hearing.

                                      So ordered.
