Com. v. Al Saud

April 4, 2011

Commonwealth v. Bader Al Saud

Docket No. 10760

Supreme Judicial Court

Criminal, Revocation of probation, Due Process of Law, Alien.

The defendant, a Saudi Arabian, pleaded guilty to misdemeanor motor vehicle homicide and was sentenced to one year in the house of correction and by two years' probation. The defendant received probation even though he told the court that he intended to "voluntarily depart" the United States at the end of his incarceration. Normal conditions of probation were imposed, including some with which he could not comply if he left the United States. The court addressed whether conditions of probation apply to a noncitizen defendant in these circumstances.

The defendant was allowed to depart the United States voluntarily. Immediately upon his release, he was transported to the airport under Federal custody and left. He has not returned to the United States. It is undisputed that he did not comply with his probation.
Nearly two years later, the probation department (department) filed a notice of surrender based on his failure to comply with probation conditions. After a hearing at which violations of probation were conceded, a motion judge denied the defendant's motion to terminate his probation and issued a warrant for the defendant's arrest. The defendant appealed from the motion judge's order on due process grounds.

Facts

In 2002, the defendant was residing in the United States on a student visa. While driving under the influence in Boston, he struck and killed a pedestrian. He pleaded guilty to the misdemeanor of motor vehicle homicide in violation of G.L. c. 90, § 24G (b.) Both the defendant and the Commonwealth agreed to this sentence despite anticipating that United States Immigration and Customs Enforcement (ICE) might attempt to deport the defendant. The defendant would seek permission from ICE to "voluntarily depart… upon the completion of his sentence of incarceration.”

In June, 2006, after seven months in the house of correction, the defendant was granted parole on or after July 10, 2006 ("upon pick up" by ICE). ICE agents picked him up at the house of correction and drove him to Logan Airport. He resides currently in Saudi Arabia. The department filed a notice of surrender alleging that the defendant had violated the contract he made with the Commonwealth. At a hearing on the motions in September, 2008, defendant's counsel did not dispute that "technical violation[s]" of probation had occurred. The motion judge denied the defendant's request to terminate probation and allowed the department's motion for issuance of a default warrant. She held that, because the defendant could have requested modification or clarification of the conditions prior to departing voluntarily, "sufficient grounds exist for the issuance of a default warrant for the defendant's arrest based on his violations of probation." The defendant appealed.

Issue One: The Timing of the Appeal

The defendant's appeal is premature. In general, the judge first determines if a probation violation has occurred, and then decides how to dispose of it. Although the judge may revoke or modify probation if a violation is found, the judge retains the discretion not to take either action. See, e.g., Commonwealth v. Goodwin, 458 Mass. 11, 15 (2010). Because the judge may find a violation but impose no punishment for it, a finding of a violation is an interlocutory ruling and not appealable. See Matter of a Grand Jury Subpoena, 411 Mass. 489, 492 (1992). A defendant is entitled to challenge such a finding only on appeal from a final disposition of revocation or modification. See Commonwealth v. Negron, 441 Mass. 685, 688 (2004). The motion judge here did not make either of the findings in the two-step process.

The defendant relies on the principle that an interlocutory appeal is appropriate when "there might otherwise be no avenue of appeal." Matter of a Grand Jury Subpoena, supra at 499 n. 12. The court disagreed. The defendant is not barred from the United States forever. The general rule against interlocutory appeals is intended to avoid delaying litigation and wasting judicial resources. This issue has been fully briefed and argued, and the applicability of probation conditions to deportees and other departed aliens is a matter likely to arise in the future in other cases. The court therefore declined to dismiss the defendant's appeal as untimely.

Issue Two: The Due Process Claims

The defendant failed to comply with his probation. Instead, he asserted that the motion judge's order and the default warrant violated his rights to due process under the Fourteenth Amendment and art. 12 of the Massachusetts Declaration of Rights. He argued that, although the Commonwealth knew at the time of the plea agreement that he intended to depart, and knew prior to his release that he would be leaving, it failed to modify probation conditions that were inconsistent with his departure. Because he could not comply with his probation abroad, he stated that enforcing his probation is fundamentally improper.

The events leading to this appeal reflected a clear failure of attentiveness and common sense by both parties. When deportation or voluntary departure is anticipated, the probation contract should indicate that. Here, both the Commonwealth and the defendant knew that the defendant wished to depart voluntarily. Nevertheless, both parties proposed a sentence that included a normal term of probation. Despite his intended departure, the defendant signed and raised no objections to a contract that included conditions inconsistent with living abroad.

In the circumstances of this case the motion judge's order and issuance of a default warrant, based on a finding of specific and limited violations of probation, does not rise to the level of a due process violation.

Issue Three: The Inability to Comply

The defendant first argued that, because he left the country, it was impossible for him to comply with his probation. Accordingly, the motion judge violated his due process rights by requiring him to satisfy those conditions. The court disagreed. The violations underlying the motion judge's decision in this case were neither inevitable nor unavoidable and justified the issuance of a default warrant. The motion judge's order was based on violations of three specific probation conditions with which the defendant could have complied despite his departure. In her memorandum of decision, the motion judge identified three violations: failure to pay fees, failure to verify address, and failure to report to the department upon release. These conditions were not impossible for the defendant to meet.

A defendant who does not even attempt to make a good faith effort to comply with the terms of his or her probation cannot complain later that compliance was impossible.

It is true that a probationer may not be found to be in violation of conditions of probation where those conditions, despite diligent effort, cannot be met. See Commonwealth v. Poirier, 458 Mass. 1014, 1016 (2010). It is also true that, because he was obligated to leave, it would likely have been impossible for this defendant to comply with some of his probation conditions. His violations of those conditions were not the violations relied upon by the motion judge in defaulting the defendant. Because the defendant could have complied with some of the conditions, finding him in violation did not infringe his due process rights.

Issue Four: Notice and Guidance

The defendant argued that the Commonwealth's failure to provide him with guidance, in light of his departure, violated due process. The defendant stated that, because he notified the Commonwealth, the department ought to have taken the initiative to clarify the terms of his probation. However, the court found no due process violation in its failure to do so.

Due process "requires that a defendant sentenced to probation receive fair warning of conduct that may result in the revocation of probation." Commonwealth v. Ruiz, 453 Mass. 474, 479 (2009). Accordingly, "before a defendant's term of probation can be modified or revoked on the basis that he violated a probationary condition, he must have adequate notice that the condition of probation is in effect." Commonwealth v. Bunting, 458 Mass. 569, 573 (2010). See Commonwealth v. Lally, 55 Mass.App.Ct. 601, 603 (2002). The defendant in this case received notice of the requirements of his probation. He was made aware of, and agreed in writing to, the conditions of his probation on the day of his guilty plea, more than eight months before he left the country.

Judgments affirmed.

--Prepared by JWK.