Articles Posted in Probation Violation/Surrender Hearings

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Recently, a state appellate court issued an opinion in a Massachusetts violation of probation hearing that was premised on the defendant’s alleged possession of an unlicensed firearm. The case presented the court with the opportunity to discuss the quantum of evidence necessary to sustain a violation of probation.

The Facts

The defendant was a juvenile who was placed on probation for an unarmed robbery. While on probation, the defendant was arrested for the possession of a firearm without a license. Evidently, police responded to a call for an instance of breaking and entering. Upon entering the residence, police found several teens in the attic. The defendant was sitting on a chair with a black jacket draped over the back of it.

The police officers put all the teens up against the wall after seeing what they believed to be a handgun protruding out of another teen’s jacket. After searching all the teenagers, police officers found a gun in the black jacket that was draped over the chair that the defendant was sitting in. Later in the evening, two of the teens in the attic told police that the black jacket belonged to the defendant. However, one of the other teens told police that it was his jacket.

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In Commonwealth v. Wallace, the defendant appealed from a sentence that was imposed when his probation for an unarmed burglary was revoked. He’d pled guilty, but the court denied his motion to withdraw the plea.

The case arose when the defendant entered a home one night and stole various effects while the homeowner and her granddaughter were sleeping. The defendant pled guilty to larceny from a building and unarmed burglary. He entered into a plea deal even though he had a significant criminal record, and the Commonwealth claimed that he was a habitual offender. Habitual offenders have a mandatory minimum sentence of 20 years. The defendant was sentenced to three years of probation for burglary and time served on the larceny conviction. His probation issue was transferred.

In 2012, the defendant was charged for a daytime breaking and entering. The Commonwealth alleged he stole property from someone’s house, and the police chased him in his car through residential streets before he jumped out of his car and ran away on foot. Because of the new offense, failure to pay restitution, and a DNA sample, the defendant was found to have violated his probation related to the burglary conviction. He was sentenced to 7-10 years in prison.

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In Commonwealth v. Polito, a Massachusetts appellate court considered the case of a defendant found in violation of his probation. The case arose on an afternoon in August 2009, when a police officer responded to a report of domestic battery and assault. The officer saw that the victim was shaking and crying and her nose was flat and swollen. The victim told the officer that the defendant had gotten angry and beaten her with an object, broken a broom, hit her with it, and thrown a mug at her face. The mug broke her nose. The officer arrested the defendant, and on his way out he yelled that the incident was the victim’s fault. The victim suffered a broken nose and finger.

The defendant was indicted on two sets of indictments, and he pled guilty. With regard to the first set of indictments, the defendant was sentenced to 2 1/2 years in a house of corrections on three counts of assault and battery with a dangerous weapon, and one witness intimidation count. A portion of the sentence was to be served, with the balance suspended for 10 years with supervised probation. Two conditions of the probation were to undergo mental health evaluation and treatment and to have no contact with the victim. He also received 10 years of concurrent probation with the same conditions for criminal harassment and violating an abuse prevention order.

The defendant also pled guilty on the second set of indictments. For two counts of assault and battery on a public employee and disruption of court proceedings, he was sentenced to 10 years straight probation under the same conditions as the probation for the first set of indictments.
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A little known fact within the Massachusetts criminal justice system, is the potential for any criminal defendant to be put on pretrial probation in lieu of criminal charges. You read that right, any potential defendant.The relevant statute reads as follows:

The superior court, any district court and any juvenile court may place on probation in the care of its probation officer any person before it charged with an offense or a crime for such time and upon such conditions as it deems proper, with the defendant’s consent, before trial and before a plea of guilty, or in any case after a finding or verdict of guilty;

Therefore, in addition to stating that any person may be placed on probation, it also states that the terms of such probation to be those that it deems proper. This allows the court the flexibility to customize the terms based upon the individual case at hand. As you can imagine, however, the reality of actually securing a pretrial diversion in lieu of criminal charges depends upon a variety of factors. Most notably among these is the experience and persuasiveness of your defense attorney.

In practice, the pre-trial probation, which is technically referred to as pre-trial diversion, is a court approved agreement reached between the defendant and the prosecutor prior to trial or the entering a guilty plea. Therefore, if you enter a guilty plea prematurely, such as if you decide to forego the advice of counsel, you effectively waive your right to this potential option.

According to the terms of a pre-trial diversion agreement, the defendant is placed on probation under the care of a probation officer, either supervised or unsupervised, for a defined period of time, and according to certain agreed upon terms. Once the defendant successfully completes the probation term, the charges will be dismissed completely.

However, if the defendant violates any condition of his probation, the charges will not be dismissed, and the case will proceed normally. Meaning charges will be formally filed, and the defendant could face a trial, and potentially jail time. However, a defendant cannot be jailed for violating this pretrial probation, since technically, that individual has not been found guilty of anything yet. However, the court could then decide to hold a person without bail, if it so decides.
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Are you facing a probation surrender hearing in any Massachusetts court because you were arrested or charged with a new criminal offense? Did your probation officer give you notice to attend an initial probation violation hearing because you allegedly violated the law or a general or specific term included in your probation contract or the conditions of a continuance without a finding (C.W.O.F.)? If so, it is crucial to hire an experienced Massachusetts probation violation defense lawyer right away to avoid being found in violation of your probation obligations.

If you find yourself before the court on an alleged probation violation, the District, Municipal or Superior Court judge has the discretion to impose a bail on you or hold you without bail while you await your final surrender or C.W.O.F. revocation hearing if he or she finds probable cause that you have been arrested or charged with a new criminal offense or that you have not adhered to your probation contract terms. This is the first stage of the probation violation hearing. If you are held without bail that action cannot be reviewed by the Superior Court.

At the final surrender hearing (the second stage of the process) the probation department officer, sometimes assisted by the prosecutor, will present all evidence of any violations usually through witness testimony and documentary evidence. The standard of proof at the final hearing is lower than a trial. The probation department need only prove a violation has occurred by a preponderance of the evidence. The defendant is allowed to testify at the hearing but is not required to testify. The role of the experience defense counsel at both stages is very important to the probationer.
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