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Appeals Court Affirms Defendant’s Revocation of Probation and Denial of Request to Withdraw his Stipulation to Probation Violations

gavel-2-1236453-300x200The Appeals Court issued a decision – Commonwealth v. Johnson – affirming the revocation of the defendant’s probation and the denial of his motion to withdraw his stipulation to probation violations.  In its decision, the Court ruled “that the defendant’s admission [to probation violations] and his waiver of the right to a probation violation hearing were made knowingly and voluntarily,” as required by Commonwealthv. Sayyid, 86 Mass. App. Ct. 479, 489 (2014).

The background was as follows. The defendant pleaded guilty to several indictments charging him with sexual abuse of a child and a related offense. He was sentenced to concurrent terms of incarceration to be followed by concurrent terms of probation, with various conditions, including requirements “that he wear a global positioning system (GPS) monitoring device, attend and successfully complete sex offender counselling, [and] report to a probation officer.” Several weeks after the commencement of the probationary term, a notice of violation of probation was issued “because the defendant had failed to report to his probation officer, … had failed to attend an outpatient sex offender treatment program, and had removed his GPS monitoring bracelet.” A final probation violation hearing was scheduled for January 5, 2015.

On that day, “there was a sidebar conference attended by the defendant’s counsel, the prosecutor …, a probation officer, and the judge. The defendant was present in the court room, but did not hear the conference. Defense counsel indicated that her client was prepared to accept an additional one year of incarceration to resolve the case, but stated, ‘I discussed with him a two to three in order to dispose of it being more in line with the allegations….’” The judge made no commitments, stating “that the defendant’s sentence ‘could run the gamut from some period of incarceration to reprobating again.’ The sidebar concluded with defense counsel informing the judge that the defendant was ‘prepared to stipulate to the alleged facts.’” The judge then asked the defendant “whether he wanted to waive his right to an evidentiary hearing and to stipulate to the probation violations. The defendant responded in the affirmative…. [He was not] informed that no agreements had been reached about whether the judge would revoke his probation and, if she did, what sentence would be imposed.”

Several weeks later, at the dispositional hearing, the judge imposed a sentence of incarceration for three to six years. In June of 2016, represented by a new attorney, the defendant filed a motion to withdraw his admission to the probation violations. “The factual basis for the motion was the defendant’s allegation … that his prior attorney [had mistakenly] informed him that during the sidebar conference held on January 5, 2015, the judge stated that if the defendant admitted to the violations, she would not impose a sentence in excess of three years in State prison.” The judge denied the motion and the defendant appealed.

In its decision, the Appeals Court noted that “the judge did not credit the defendant’s affidavit [in support of his motion to withdraw his admission to the probation violations], and thus there [was] no basis for his claim that his admission was not knowing and voluntary…. Moreover,” stated the Appeals Court, “even assuming that defense counsel gave the defendant incorrect advice about what sentence the judge would impose if the defendant admitted to the violations, the defendant cannot satisfy the requirements for establishing an ineffective assistance of counsel claim,” “because there is no evidence that he was prejudiced by the waiver of a probation violation hearing. There is nothing in the record … indicating that he had a defense to the charges that he cut off his GPS bracelet, failed to report to probation, … and failed to participate in sex offender treatment. The defendant also did not explain how he could have expected a different outcome had he been granted a hearing.”

Making sure that a client is fully informed of all of the risks associated with each stage of a criminal case, whether it be at the pre-trial stage, trial, or probation, is critical to the attorney-client relationship, and required to ensure effective assistance of counsel.  Attorney Daniel Cappetta has been practicing criminal law for many years and understands the value and importance of attorney-client communication.  He is always thorough in apprising his clients of their options, and available to discuss such options for as long or as often as clients need. Call him today for a free consultation.