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SJC-11895

                     COMMONWEALTH   vs.   DANNY VARGAS.



            Essex.      November 2, 2015. - August 3, 2016.

 Present:     Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
                              Hines, JJ.1


Marijuana. Practice, Criminal, Probation, Revocation of
     probation, Assistance of counsel. Constitutional Law,
     Assistance of counsel.



     Indictment found and returned in the Superior Court
Department on November 19, 2012.

     A proceeding for revocation of probation was heard by
Richard E. Welch, III, J.

     The Supreme Judicial Court granted an application for
direct appellate review.


     Michael D. Cutler for the defendant.
     Philip A. Mallard, Assistant District Attorney, for the
Commonwealth.
     Eva G. Jellison & David J. Nathanson, for Committee for
Public Counsel Services, amicus curiae, submitted a brief.



    1
      Justice Duffly participated in the deliberation on this
case prior to her retirement.
                                                                   2


     David A.F. Lewis, Sarah Heaton Concannon, & Robyn R.
Schwartz, for Massachusetts Association of Criminal Defense
Lawyers, amicus curiae, submitted a brief.


     HINES, J.   In this appeal, we are asked to decide whether

the medical marijuana law, St. 2012, c. 369 (act),2 establishing

immunity for the medical use of marijuana, applies in a

probation surrender proceeding based on the use of marijuana,

purportedly for medical purposes.   The issue arises from a

judge's order finding the defendant, who claimed immunity under

the act, in violation of probation for the use of marijuana,

terminating the probation and imposing a sentence to State

prison.

     The defendant challenges the disposition and seeks a new

probation surrender hearing, arguing that the sentence violates

his right, as a qualifying patient under the act, to the medical

use of marijuana without adverse legal consequences.   He also

argues that counsel was ineffective in failing to defend the

probation surrender on this ground.   The Commonwealth counters

that the court permissibly conditioned the defendant's probation

on the prohibition of any nonprescription controlled substance,

and properly terminated probation for failure to comply with

this and other conditions.   The Commonwealth also argues that

     2
       On November 6, 2012, Massachusetts voters approved by
referendum St. 2012, c. 369, "An Act for the humanitarian
medical use of marijuana."
                                                                   3


counsel was not ineffective for failing to assert the immunity

provision of the act where defense counsel's decision to forgo a

medical marijuana defense in favor of a plea for leniency was

not manifestly unreasonable.

    We granted the defendant's application for direct appellate

review.   We conclude that, in the circumstances of this case,

the judge committed no error in finding the defendant in

violation of his probation and that, although counsel was

ineffective in stipulating to the violation without raising the

issue as a defense to the violation, the defendant suffered no

prejudice from this lapse.

    Background.     We summarize the facts as recited by the

Commonwealth at the plea hearing and stipulated to by the

defendant.    On October 12, 2012, the defendant entered a variety

store in Haverhill, pointed what appeared to be a firearm at the

clerk, and demanded money.     The clerk provided approximately

$400, and the defendant left the store.     Information from the

clerk and the defendant's mother tied the defendant to the

robbery, and he subsequently confessed.     The defendant told

police "that he used some of that money to pay back people to

whom he owed money and also used some of the money to buy

marijuana."

    Based on these facts, the defendant pleaded guilty to armed

robbery in April 17, 2013.    During the plea hearing, the
                                                                   4


defendant admitted to the regular use of marijuana and stated

that he had used marijuana during the prior twenty-four hours.

In accordance with an agreed-upon recommendation, the plea judge

sentenced the defendant to three years of probation, which

included conditions relating to illegal drug use without a

prescription and random drug testing.3   Referencing the use of

marijuana as a factor in the commission of the crime, the judge

specifically informed the defendant that the prohibition on the

use of illegal drugs included the use of marijuana.   The judge

further explained that the defendant would be required to follow

all Federal, State, and local laws during the period of

probation.   The judge also explained, "Those laws include laws

regarding possession of marijuana.   So during the period of

probation you would not be able to possess or use marijuana even

for personal use; do you understand that?"   The defendant

responded, "Yes, Your Honor."   After receiving this information

and before sentencing, the defendant stated his explicit

agreement to the condition of no marijuana use:   "I would just

like to say if I am put on probation Your Honor I will comply

     3
       The terms of the probation required the defendant to
submit to random drug screens, attend substance abuse
counselling, attend mental health treatment, use medication only
as prescribed by doctors, abstain from use of controlled
substances unless otherwise prescribed, submit a
deoxyribonucleic acid sample, avoid contact with the variety
store employees, complete high school, gain employment, and pay
restitution in the amount of $400.
                                                                   5


with everything that is put on me.   I will comply with

everything and see it through and you will not see me in court

again."   The judge imposed the probationary sentence with the

stated conditions to take effect immediately.4

     On April 24, 2013, within days of the plea hearing, the

defendant tested positive for marijuana.   He tested positive for

marijuana a second time on May 14, 2013.   On May 29, 2013, the

defendant secured a document from a physician entitled

"Physician's Certificate for the Use of Medical Marijuana in the

Commonwealth of Massachusetts Pursuant To 105 [Code Mass.

Regs. §] 725" (certificate).5   That document purported to

"certify and approve [the defendant's] use of medical marijuana"




     4
       The judge noted that he had a stark choice to make because
he could only sentence the defendant to State prison or to a
period of probation.
     5
       On May 8, 2013, the Department of Public Health
(department) issued regulations implementing the medical
marijuana law, St. 2012, c. 369 (act). Those regulations
require a two-step process to trigger the immunity provisions:
(1) a "written certification" from a qualified physician; and
(2) a valid registration card. 105 Code Mass. Regs. 725.015(C)
(2013). When the defendant received his certificate on May 29,
2013, the department had not yet implemented the procedure for
the issuance of a registration card. Therefore, as provided in
the regulation, the certificate alone was sufficient to invoke
the immunity provisions of the act. See Commonwealth v.
Canning, 471 Mass. 341, 347-348 (2015).
                                                                      6


for the relief of symptoms of a "debilitating medical

condition."6

         On June 17, 2013, the probation officer issued a violation

of probation notice based on the positive drug screens.     The

defendant appeared with counsel on August 28, 2013, for the

surrender hearing.     On the advice of counsel, the defendant

stipulated to probation violations for the use of marijuana on

April 24, May 14, May 31, and June 11, 2013, and for the use of

cocaine on June 11, 2013.7

     Based on the facts asserted in the probation violation

notice and the stipulation by the defendant, the judge found the

defendant in violation of the terms of his probation and

approved the agreed-upon recommendation that the defendant

complete the level-three program at the Lawrence Community

Correction Center8 "with the added condition that no use of



     6
       The Commonwealth challenges the validity of this document
as a certificate for the medical use of marijuana, claiming that
it was obtained from a "now-defunct . . . 'recommendation'-
mill." We need not consider the issue based on our conclusion
that even a valid certificate would not bar the judge's
disposition on the probation violation.
     7
       Acknowledging that the certificate did not immunize the
use of cocaine on June 11, 2013, the defendant claimed that the
cocaine "must have been slipped into the marijuana without him
knowing."
     8
       The level-three program at the Lawrence Community
Correction Center requires daily reporting and other
rehabilitation and educational services to criminal offenders.
                                                                    7


drugs, including marijuana, be part of his probation."    The

judge summarized the recommendation regarding drug use as

follows, "Full menu, drug and alcohol free, except for

prescribed medication for back condition by a licensed

Massachusetts physician."    The probation officer inquired

whether the condition would state, "including marijuana that

he's not allowed to use" and defense counsel expanded that

adding the words "including marijuana" would clarify the intent

that all legal or illegal use is prohibited.    The judge agreed,

stating, "No marijuana.    Okay."

    During the hearing, defense counsel informed the judge that

on May 29, 2013, the defendant acquired a certificate for the

medial use of marijuana.    He did not, however, offer it as a

defense to the violation or request a modification of the

conditions of probation on that ground.    Instead, defense

counsel told the judge that he had reviewed the certificate and

advised the defendant that it is "not a prescription, it's a

medical recommendation . . . and it [is] not okay at this point

in time, based on the way the law is right now, . . . for him to

use marijuana under any circumstance until it's clarified or

when we're clear as to who the providers are going to be."




http://www.mass.gov/essexsheriff/facilities/community-
corrections.html [https://perma.cc/2CTQ-CUNM].
                                                                    8


     After being reprobated at the August, 2013, surrender

hearing and agreeing on the advice of counsel to forgo reliance

on the certificate, the defendant again tested positive for

marijuana, and he failed to comply with other probation

conditions.   The probation department issued a second violation

of probation notice9 on October 7, 2013, requiring the defendant

to appear for a surrender hearing.   On October 23, 2013, the

defendant appeared for a hearing on the appointment of counsel.

At this hearing, the probation officer requested that the

defendant be detained pending the final surrender hearing,

explaining that he was requesting incarceration because the

defendant "continues to miss drug tests and uses marijuana" in

"flagrant disregard for the rules of the program that he's been

sentenced to" and shows no "effort of compliance."   The judge

declined the request to detain the defendant, appointed new

counsel, and after receiving information about the defendant's

background,10 inquired whether the parties could fashion an

alternative to surrender.



     9
        The October 7, 2013, probation violation notice alleged
the following violations: use of marijuana on September 19, 20,
23, 27, and 30, 2013; failure to report to the Lawrence
Community Correction Center on September 12, 25, and 26, 2013,
and October 2 and 3, 2013; and failure to report for drug tests
on September 17 and 26, 2013.
     10
         Defense counsel asserted that the defendant came from an
"intact family," was "currently going to a high school to get
                                                                    9


    As at the first surrender hearing, newly appointed counsel

made no attempt to leverage the certificate on the defendant's

behalf.   He agreed to a preliminary stipulation to five

violations for use of marijuana, two violations for failure to

report for a drug test, and five violations for failing to

report to the Lawrence Community Correction Center occurring in

September and October, 2013.     In his argument to the court, he

explained that he had discussed the medical marijuana

certificate with the defendant and informed him that it would

not be a defense to the probation violation.

    The judge agreed with counsel's analysis11 and then offered

the defendant two options:     (1) the judge would continue

sentencing for four weeks and if the defendant did not "fully

comply with every single requirement of the Level Three

Program," including that he "stop using any type of drug,

including marijuana," and "show up for every single drug test,"

he would receive the full State prison sentence for armed

robbery and assault; or (2) the defendant could "go in for a

week, and then to the county jail, and then try to have

additional terms of probation after that."     The defendant


his diploma" and was receiving percentages of from seventy to
eighty in certain classes.
    11
       The judge emphatically stated his agreement, noting that
even if "[the defendant] has Barack Obama's permission to toke
at will, it doesn't matter."
                                                                        10


acknowledged his understanding of the options and that the

prohibition of marijuana use included medical and nonmedical

marijuana use and, through counsel, expressed his desire to

accept the first option, which would allow him to avoid the

short period of incarceration.         Accordingly, the judge continued

the hearing for four weeks.

    On November 19, 2013, the probation department issued a

third violation of probation notice for the defendant's

appearance on November 20, 2013.        This notice followed a

positive marijuana test on November 14 and a failure to report

for a drug test on November 19.        At the final surrender hearing

on December 11, 2013, before the same judge who had presided at

the October 23, 2013, hearing, the probation officer informed

the judge that the defendant failed to appear at the November

20, 2013, hearing.        Defense counsel reiterated his stipulation

to the violations and made no further reference to the

certificate.   The judge terminated the probation and sentenced

the defendant to a term of not less than two years, and no more

than four years in State prison.        This disposition is the

subject of the defendant's appeal.

    Discussion.      1.    Immunity.   The defendant argues that the

judge erred by imposing a sentence for the probation violation

based on the medical use of marijuana because, as a qualified

patient, the act granted him immunity from punishment for that
                                                                  11


conduct.12   More specifically, the defendant contends that the

judge was prohibited by the act 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.   We disagree.   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.13    We

conclude also that even if the defendant were entitled to

immunity for the medical use of marijuana, the judge could




     12
       The stated purpose of the act is as follows: "The
citizens of Massachusetts intend that there should be no
punishment under state law for qualifying patients, physicians
and health care professionals, personal caregivers for patients,
or medical marijuana treatment center agents for the medical use
of marijuana, as defined herein." St. 2012, c. 369, § 1. The
act expressly authorizes certain conduct relating to marijuana
that was previously criminalized. Canning, 471 Mass. at 349.
     13
       Because the defendant was not a qualifying patient at the
relevant time for the purposes of the act, we do not reach the
broader question whether the medical marijuana law limits a
judge's authority to prohibit the use of medical marijuana as a
condition of probation where the defendant objects to this
condition.
                                                                    12


properly sentence the defendant for violations independent of

the use of marijuana.

     The analysis of the defendant's right to use medical

marijuana without adverse legal consequences to his probationary

status begins with the language of the act, which provides in

relevant part as follows:    "Any person meeting the requirements

under this law shall not be penalized under Massachusetts law in

any manner, or denied any right or privilege, for such actions."

St. 2012, c. 369, § 4.    More specifically, with regard to the

use of medical marijuana, the act further provides, subject only

to certain conditions not relevant in this case, that "[a]

qualifying patient . . . shall not be subject to arrest or

prosecution, or civil penalty, for the medical use of medical

marijuana."   Id.   A "[q]ualifying patient" is further defined as

"a person who has been diagnosed by a licensed physician as

having a debilitating medical condition."   St. 2012, c. 369,

§ 2 (K).   We assume without deciding that the defendant was a

"qualifying patient" under the act when he acquired the

certificate on May 29, 2013.14   What we must determine is whether

his status as a qualifying patient as of that date immunizes his

     14
       The regulations adopted on May 8, 2013, require that the
certificate "shall be issued in a form and manner determined by
the [d]epartment." 105 Code Mass. Regs. 725.010(N) (2013).
However, it does not appear that the department had further
specified the "form" on May 29, 2013, when the defendant
acquired his certificate.
                                                                  13


use of marijuana in violation of a condition of probation

imposed before he became a qualifying patient.   It does not.

     As a threshold matter, the defendant does not dispute that

he violated the conditions of his probation by testing positive

for marijuana before he received the certificate.    Bypassing the

implications of this nonimmunized use of marijuana, the

defendant argues that the issuance of the certificate prohibits

any punishment for the medical use of marijuana at any time

thereafter.   We reject this argument, as it overlooks the

defendant's waiver of his right to use marijuana during the plea

hearing and the inherent authority of the court to impose a

prison sentence for a violation of that condition.   See

Commonwealth v. Durling, 407 Mass. 108, 112 (1990), quoting

Rubera v. Commonwealth, 371 Mass. 177, 180-181 (1976) ("Any

conduct by a person on probation which constitutes a violation

of any of the conditions of his probation may form the basis for

the revocation of that probation").

     In agreeing to abide by the condition of no marijuana use,

the defendant explicitly waived his right not to be prosecuted

for the use or possession of marijuana,15 and he agreed to be

subject to punishment for noncompliance.   And, consistent with

the court's inherent authority to enforce the conditions of

     15
       Under G. L. c. 94C, § 32L, a person may possess "one
ounce or less" of marijuana without criminal consequences.
                                                                   14


probation, going forward, the court could impose appropriate

sanctions for noncompliance.   See Durling, 407 Mass. at 111-112,

citing McHoul v. Commonwealth, 365 Mass. 465, 469-470 (1974)

("If the judge determines that the defendant is in violation, he

can either revoke the probation and sentence the defendant or,

if appropriate, modify the terms of his probation.   How best to

deal with the probationer is within the judge's discretion").

Because the immunity under the act can only apply once a person

is designated a qualifying patient, it may not be invoked to

grant that protection at an earlier time.   The plain language of

the act contemplates a restraint on punishment, and necessarily

applies only in circumstances where a person already has

attained the status of a qualifying patient.   See St. 2012,

c. 369, § 4 (providing protections for qualifying patients and

personal caregivers "meeting the requirements under this law").

It does not operate to relieve the defendant of obligations and

duties he undertook when he agreed to a condition of probation

prohibiting the use of marijuana before attaining the status of

qualifying patient.   Thus, we discern nothing in the act to

support an interpretation that allows a defendant in such

circumstances merely to acquire a certificate for the medical

use of marijuana and, thereby, to vitiate the court's inherent

authority to punish the violation of a preexisting condition of

probation.
                                                                   15


    Interpreting the act to require a nexus between qualifying

patient status and the timing of the particular punishment

serves important policy interests as well.    The prospective

focus of the act avoids a wholesale disruption of dispositions

in criminal cases as would occur if a probationer could acquire

a certificate and demand the retraction of a prohibition on the

use of marijuana.   Likewise, the prospective application of the

immunity provision preserves the court's authority to fashion

appropriate dispositions for public safety in criminal cases

without the threat of a future limitation on the prohibition of

marijuana use.

    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 medical use of marijuana after

he has violated the probation condition prohibiting the use of

marijuana.   To be clear, we do not suggest that a defendant,

bound by conditions of probation prohibiting the use of

marijuana, may not seek the protection of the act.    He or she

may do so by requesting a modification of the conditions of

probation, which would be considered in the ordinary course in

light of all the relevant circumstances.     However, we take

seriously the purpose of the act as a medical breakthrough for

patients suffering from debilitating medical conditions; any
                                                                    16


advantage to a criminal defendant is only incidental.     In sum,

where a court has prohibited the use of marijuana as a condition

of probation prior to a defendant acquiring the status of

qualifying patient, the defendant is not entitled to immunity

under the act.   He or she may, however, seek a modification of

the condition of probation to accommodate the need for the

medical use of marijuana.

    2.   Ineffective assistance of counsel.   The defendant

argues that in failing to defend the probation violation on the

ground that the defendant's marijuana use was protected under

the act by the certificate, counsel provided constitutionally

ineffective assistance during the surrender proceedings.      We

conclude counsel's performance in this respect was not

deficient, but that counsel's failure to seek modification of

the probation conditions on that ground fell "measurably below

that which might be expected from an ordinary fallible lawyer,"

Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).     We conclude,

however, that counsel's lapse was not consequential.    Therefore,

we reject the defendant's contention that he is entitled to a

new probation surrender hearing on this ground.

    It is well settled that "a probationer is entitled to the

effective assistance of counsel at a probation violation hearing

whenever imprisonment may result."   Commonwealth v. Pena, 462

Mass. 183, 188 (2012).   The defendant or probationer bears the
                                                                   17


burden of proving ineffectiveness by a showing that counsel's

representation was constitutionally inadequate and that the

defendant suffered prejudice.   See Commonwealth v. Kolenovic,

471 Mass. 664, 673 (2015); Saferian, 366 Mass. at 96.   We

consider the defendant's argument as to each required prong of

the ineffective assistance of counsel claim.

    a.   Counsel's performance.   The defendant was represented

by two different attorneys during the proceedings, neither of

whom proffered the certificate as a defense to the asserted

violation for marijuana use or as a basis for modification of

the condition prohibiting the use of marijuana.   Both attorneys

advised the defendant, and argued to the court, that the medical

marijuana certificate lacked any legal effect and that it could

not be asserted as a defense to the probation violation.

    The first attorney appeared for the defendant at the

initial probation surrender hearing on August 28, 2013, during

which the probation officer urged surrender based on the

defendant's violation of the condition prohibiting the use of

all "illegal" drugs.   However, the defendant had secured the

certificate on May 29, 2013, which, in accordance with the act,

theoretically could have immunized his use of marijuana after

that date.   During the hearing, however, counsel stipulated to

all violations (including marijuana use before and after he

obtained the certificate) and expressly eschewed any possible
                                                                  18


use of the certificate as a justification for the defendant's

violation.   Counsel told the judge that the defendant "was under

the impression that he could get medical marijuana" because of

the certificate, but that he (counsel) informed the defendant

that the certificate "is not a prescription, and it [is] not

okay at this point in time, based on the way the law is right

now, . . . for him to use marijuana under any circumstance until

it's clarified or when we're clear as to who the providers are

going to be."   The act contained no such provision, however, and

provided immunity to qualifying patients from "arrest or

prosecution, or civil penalty," for the medical use of marijuana

in accordance with the act.   St. 2012, c. 369, § 4.   With the

certificate in hand, counsel was obligated, at the very least,

to consider seeking a modification of the conditions of

probation based on the certificate.

    The second attorney's conduct at the October hearing and

the December final surrender hearing was similarly lacking in

the required level of professional competence.    During the

October hearing at which the judge considered alternatives to

surrender, counsel appeared to dismiss any possible

justification for the defendant's use of marijuana for medical

purposes, asserting that the defendant suffered from an

"addiction" to marijuana and believed that "this medical

marijuana thing was his be all and end all."     He then added his
                                                                 19


own view that "[i]t's not."16   This statement in open court

revealed, inappropriately so, a suspicion of the defendant's

motivation for the medical marijuana certificate.

     At the final surrender hearing in December, 2013, the

attorney stipulated to the defendant's probation violations,

thereby declining to take any account of the medical marijuana

certificate.   Here, counsel was even more openly skeptical of

the defendant's legal rights under the certificate, referring to

the defendant's "cleverness" in obtaining the certificate.

     Despite the long odds of success at this stage of the

surrender proceedings, the option of a modification of the

probation remained available to the defendant, particularly

where it had not been considered previously.   On this record, it

appears that counsel not only failed to assess the legal



     16
       Inexplicably, counsel at the October hearing appeared not
to appreciate his role as advocate for the defendant during the
hearing. For example, counsel, who had met the defendant for
the first time when he was appointed the day of the hearing,
stated to the judge that "he [the defendant] has skyrocketed
into the top ten of the most infuriating clients I've ever had
the opportunity to represent." Counsel used this reference on
several occasions during the course of the hearing. In a
similar vein, counsel agreed with the judge's suggestion that
the defendant was not a good probationer, adding that the
defendant was "a horrible probationer." Also, defense counsel
was unusually frank in reporting the content of his discussion
with the defendant regarding the certificate. He revealed to
the judge that he had asked the defendant whether he had court
permission to use marijuana in accordance with the certificate
and that the defendant had answered "no."
                                                                       20


viability of the certificate as a defense to the probation

violation, but also expressly disparaged its legitimacy.        Such

conduct is not acceptable as a standard for the "ordinary

fallible lawyer."      Saferian, 366 Mass. at 96.

     We have noted the Commonwealth's position that counsel's

decision to bypass the medical marijuana certificate was a

tactical strategy to obtain the most favorable disposition on

the surrender and that, as such, it was not "manifestly

unreasonable," Commonwealth v. Acevedo, 446 Mass. 435, 442

(2006), in light of the defendant's other unrelated violations

of the probation conditions.     The point is well taken because

the judge reasonably could expect strict compliance with the

terms of straight probation on a life felony.       Nonetheless, this

case presented important issues of first impression that should

not have been resolved against the defendant by counsel's

uninformed and narrow interpretation of the reach of the act.17

     b.   Prejudice.    Although we conclude that counsel was

obligated to pursue at least a modification of the conditions of

probation to accommodate the defendant's medical marijuana

certificate, the failure to do so in the circumstances of this

case was not prejudicial.     The use of marijuana was not the only

     17
       At the time of the hearing, no appellate court had opined
on the parameters of the act for "qualifying patients" in
criminal proceedings.
                                                                  21


compliance issue for the defendant and the judge properly could

have terminated the probation on grounds unrelated to the use of

marijuana.

     The defendant does not challenge the validity of the

conditions requiring him to report for drug testing and the

mandated drug program, nor does he dispute that these violations

occurred.    The defendant failed to report for drug testing on

three different occasions, on September 17, 2013; September 26,

2013; and on November 19, 2013.18   Also, the defendant was found

to have used cocaine on June 11, 2013.    Even if the judge had

given full effect to the medical marijuana certificate, the use

of cocaine would stand as a violation of the condition

prohibiting the use of illegal drugs.    In ruling on the

defendant's motion for a new hearing on the probation surrender,

the judge specifically cited the compliance issues independent

of the marijuana use.    Thus, there was no prejudice in counsel's

failure to proffer the certificate as a defense or as a basis

for modification of the conditions of probation.




     18
       The probation officer also alleged that the defendant
failed to report to the level-three program at the Lawrence
Community Correction Center program. It appears that the
defendant was terminated from the program sometime between the
October 23, 2013, hearing and sentencing on December 11, 2013,
because of a juvenile sex offense in Florida.
                                                                  22


    Conclusion.   We affirm the order finding the defendant in

violation of the conditions of probation and the sentence based

on that violation.

                                   So ordered.
