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14-P-1763                                               Appeals Court

                       COMMONWEALTH   vs.   JOSE RIZ.


                              No. 14-P-1763.

            Bristol.       March 9, 2016. - August 12, 2016.

                Present:    Cypher, Cohen, & Neyman, JJ.


Practice, Criminal, Probation, Sentence. Constitutional Law,
     Sentence. Due Process of Law, Sentence.


     Indictments found and returned in the Superior Court
Department on July 21, 2011.

     The cases were tried before Gary A. Nickerson, J.


     James A. Reidy for the defendant.
     Corey T. Mastin, Assistant District Attorney, for the
Commonwealth.


     NEYMAN, J.    In this case, we consider whether a probation

condition that the defendant, Jose A. Riz, not "minimize" his

criminal activity "during his sex abuse treatment . . . in his

contact with church authorities . . . [and] in dealing with

[his] probation officer" is unconstitutionally vague.       We hold

that the condition does not provide reasonable guidance with
                                                                          2


respect to what conduct is prohibited, and therefore violates

the due process clause of the Fifth and Fourteenth Amendments to

the United States Constitution. 1

       Background.     In 2010 and 2011, the defendant lived at his

brother's apartment, along with his brother and his brother's

oldest daughter (the victim, who was also the defendant's

niece).       During this timeframe, the defendant had sexual contact

with the victim on multiple occasions, including vaginal, anal,

and oral sex.       The victim was thirteen and fourteen years old at

the time, while the defendant was eighteen and nineteen years

old.       The final instance of abuse occurred on May 8, 2011.    That

night, the defendant, who had consumed alcohol and smoked

marijuana, pulled the victim into his room, undressed her, lay

on top of her, and touched her vagina with his penis.       The

defendant's brother discovered the victim leaving the

defendant's room, and the victim subsequently told her mother of

her sexual relationship with the defendant.       The defendant was

arrested, and, during an interview with the police, confessed to

having had sex with the victim on more than one occasion.         The

defendant was indicted for statutory rape, G. L. c. 265, § 23;

incest, G. L. c. 272, § 17; and assault of a child under the age




       1
       The defendant does not challenge the condition under the
Massachusetts Declaration of Rights.
                                                                        3


of sixteen with intent to commit rape, G. L. c. 265, § 24B. 2      At

his jury trial in the Superior Court, the defendant testified

that he was drunk on the night of May 8, denied having any

sexual contact with the victim, and claimed that his confession

was the product of his intoxication.   The jury convicted the

defendant on all counts.

     At sentencing, defense counsel told the judge, inter alia,

that the defendant was from Guatemala, had developed some

alcohol and marijuana problems, and had ongoing and strong

involvement with his church.   She further advised that the

defendant had grown up in a different culture, and that "there

is a certain amount of early sexual activity that goes on in the

area of the world where he comes from. . . .   That is what he

was familiar with."   The judge was also informed that the

defendant had been rearrested, during the pendency of this case,

for an incident involving a prostitute.   Finally, the judge

observed or otherwise gleaned that several of the victim's

family members had pressured the victim not to testify and had

glared at the victim during the sentencing proceedings.

     The judge sentenced the defendant to concurrent prison

terms of not less than four nor more than seven years for the

statutory rape and incest convictions, and a concurrent sentence


     2
       The defendant does not challenge his convictions.     His
appeal is limited only to the probation condition.
                                                                     4


of ten years' probation for the conviction of assault of a child

under the age of sixteen with intent to commit rape.   The terms

of probation contained various special conditions, including sex

offender counseling, no unsupervised contact with minor

children, and no employment or performance of volunteer

activities "that puts [the defendant] into contact with minor

children on a regular basis."   The judge further ordered that

the defendant was "not to minimize [his] crimes during treatment

with church activities or with probation."   The judge sought to

clarify this condition by stating:

          "In other words, [the defendant is] not to minimize
     his crimes involving [the victim] or his involvement with
     the prostitute during his sex abuse treatment.

          "He's also not to minimize his criminal activity in
     his contact with church authorities -- I can't believe the
     church would knowingly put him with children if they knew
     the extent of his criminal involvement -- and he's not to
     minimize his criminal involvement in dealing with the
     probation officer."

The defendant now appeals, claiming that the probation condition

that he is "not to minimize his crimes" violates due process and

the First Amendment to the United States Constitution.

     Discussion.   Judges are permitted "great latitude" in

imposing conditions of probation.    Commonwealth v. Power, 420

Mass. 410, 413 (1995), cert. denied, 516 U.S. 1042 (1996).    As a

general rule, a condition of probation is enforceable, even if

it impacts a defendant's ability to exercise constitutionally
                                                                      5


protected rights, so long as it is "reasonably related" to the

goals of sentencing and probation.     Id. at 414-415.     The

principal goals of probation are "rehabilitation of the

probationer and protection of the public."      Commonwealth

v. Pike, 428 Mass. 393, 403 (1998), citing Power, supra at 417.

Other goals include punishment, deterrence, and

retribution.      Ibid., citing Power, supra at 414.   "These goals

are best served if the conditions of probation are tailored to

address the particular characteristics of the defendant and the

crime."   Ibid.

     In the present case, the judge took pains to fashion a

sentence that addressed the goals of public protection,

punishment, rehabilitation, and deterrence.     Based on the nature

of the offenses, the representations at sentencing concerning

the claimed cultural differences regarding "early sexual

activity" that were ostensibly ingrained in the defendant, the

defendant's involvement with the prostitute during the pendency

of his case, and his connection with his church, the judge had

reason to impose special conditions to protect the public and to

foster the defendant's rehabilitation by underscoring the

seriousness of his crime.     Having determined that the

defendant's sentence complied with the general goals of

sentencing and probation, we now consider whether the condition

at issue meets the specific requirements of due process.
                                                                    6


     "Due process requires that a probationer receive fair

warning of conduct that may result in revocation of probation;

thus, probation conditions must provide reasonable guidance with

respect to what activities are prohibited."   Commonwealth

v. Kendrick, 446 Mass. 72, 75 (2006), and cases cited.    This

notice requirement can be satisfied by "an imprecise but

comprehensible normative standard so that [people] of common

intelligence will know its meaning."    Ibid., quoting

from Commonwealth v. Orlando, 371 Mass. 732, 734 (1977).

See Power, supra at 421, quoting from Commonwealth v. Adams, 389

Mass. 265, 270 (1983) ("[I]f the language which is challenged

conveys sufficiently definite warning as to the proscribed

conduct when measured by common understanding and practices, it

is constitutionally adequate").

     The defendant argues that neither he, nor his probation

officer, nor the court itself, has sufficient guidance as to

what acts or statements would constitute a violation of the

condition at issue.    He contends that absent further definition

of the term "minimize," or clearly delineated examples of

violative and nonviolative statements, the condition is

impermissibly vague.   The Commonwealth counters that the term

"minimize" is hardly a complex term.   It maintains that the

plain meaning of the word clearly forecloses the defendant from
                                                                    7


denying or downplaying his culpability to those involved with

his rehabilitation.

     Examining a realistic hypothetical quickly demonstrates the

difficulty with the condition.   When pressed to define the scope

of the prohibited conduct, the Commonwealth suggested at oral

argument that the defendant still could make statements

consistent with the "truthful representation of the facts of

this case."   However, it is entirely possible that even truthful

representations of the facts could be deemed to be prohibited by

the condition.   For example, if the defendant were to state

truthfully that he had a drinking problem and was intoxicated at

the time of some of the incidents, that could well be perceived

as minimizing the severity of the crime, minimizing his intent,

or minimizing his relative culpability.   Indeed, the reach of

the condition appears to have been designed to extend to

truthful circumstances that were not a defense to the crimes,

but which the defendant and his supporters may have considered

to be mitigating.   At a minimum, the condition is equivocal.

"[P]robationers are entitled to reasonably specific conditions

that provide clear guidelines as to what and when their actions

or omissions will constitute a violation of their

probation."   Commonwealth v. Lally, 55 Mass. App. Ct. 601, 603

(2002).
                                                                    8


     We have no doubt that the well-intentioned sentencing judge

had the goals of public safety, punishment, and rehabilitation

in mind when structuring the defendant's sentence.    The judge

may have also viewed our decision in Commonwealth v. Morales, 70

Mass. App. Ct. 839 (2007), as permitting such a condition.     In

that case, our primary focus was on a residency condition, but

in passing, we stated generally that the conditions imposed by

the judge, including a similar "minimization" condition, "were

not unreasonable."   Id. at 841, 844.   Morales, however, did not

involve a constitutional due process challenge, and thus did not

address the issue presently before this court.    Having now

reviewed the issue, we conclude that the special condition that

the defendant not "minimize [his] crimes during treatment with

church activities or with his probation officer" does not

provide reasonable guidance with respect to what conduct is

prohibited.   Therefore, the condition violates the due process

clause of the Fifth and Fourteenth Amendments to the United

States Constitution. 3   Accordingly, we order that the special

condition of probation that the defendant not "minimize" his

crimes during sex abuse treatment, in contact with church

authorities, and in dealing with his probation officer be

vacated, and that the case be remanded to the Superior Court for


     3
       Where we resolve the case on the due process claim, we
need not address the challenge under the First Amendment.
                                                              9


consideration whether more clearly defined conditions of

probation should be imposed, in the sentencing judge's

discretion, in lieu of the one vacated.   The judgments are

affirmed in all other respects.

                                   So ordered.
