Facts: The defendant pleaded guilty in Superior Court to charges of breaking and entering in the daytime with the intent to commit a felony (count 1), larceny, (count 2), possession of burglarious tools (count 3), and resisting arrest ( bout 4). On count 1, the defendant was sentenced to two years in state prison, on counts 2,3, and 4, he was sentenced to two years of probation with special conditions. The defendant violated the probation conditions. Superior Court revoked the probation and the defendant was sentenced to terms of incarceration. The defendant appealed.
Procedural
history: The defendant pleaded guilty in the Superior Court to charges of
breaking and entering in the daytime with the intent to commit a felony (count
1), larceny (count 2), possession of burglarious tools (count 3), and resisting
arrest (count 4). On count 1, the defendant was sentenced two years in State
prison; on count 2, 3, and 4, he was given two years’ probation with special
conditions. The defendant violated the
probation conditions. The Superior Court revoked the probation and the
defendant was sentenced to terms of incarceration. The defendant appealed.
Issues: Whether or
not defendant’s guilty plea to offenses underlying revocation rendered appeal
moot; and whether or not trial court violated defendant’s right to counsel
under Sixth Amendment and Art. 12 of the Massachusetts Declaration of Rights.
Holdings:
The Supreme Judicial Court held that: (1) defendant’s guilty plea
to offenses underlying revocation did not render appeal moot, and (2) trial
court did not violate defendant’s right to counsel.
Rulings
of Law: The defendant’s appeal should be granted. A case becomes moot
when the issues presented are no longer “live” or the parties lack a legally
cognizable interest in the outcome. A decision to revoke probation involves
whether the defendant has violated the conditions of his
probation. 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. “Whether a motion for
continuance should be granted lies within the sound discretion of the judge, whose
action will not be disturbed unless there is patent abuse of that discretion, which
is to be determined in the circumstances of each case.” A judge may not
exercise his discretion in such a way that denial of a continuance deprives a
defendant of the right to effective assistance of counsel and to due process of
law. There is no “mechanical test” for
determining whether the denial of a continuance constitutes an abuse of
discretion. A judge should give ‘due weight’
to concerns about judicial economy and the avoidance of delays that do not
‘measurably contribute to the resolution of a particular controversy.’
Whenever imprisonment palpably
may result from a violation of probation, ‘simple justice’ requires that,
absent a waiver, a probationer is entitled to the effective assistance of
counsel. As to the securing of such counsel, as a general rule, “a defendant should
be afforded a fair opportunity to secure counsel of his own choice.” However,
this is not an absolute right, and in some circumstances, it may be subordinate
to the proper administration of justice.
“Waiver by conduct” may occur where a defendant fails to engage counsel
within a reasonable time after the defendant has been given an express warning
about the implications and consequences of proceeding without counsel. Defendant
bore burden of establishing that waiver of counsel and acquiescence in
arrangement for standby counsel were not knowing and intelligent. Failure to do
so will render the probationer's waiver of appointed counsel effective. After refusing
appointed counsel, the probationer insisted on
retaining a private attorney but then failed
to do so despite numerous continuances
affording him additional time. The probationer
was warned at the hearing on April 11 that he
was facing his last chance and that he needed to hire a lawyer by the next
hearing on April 30. Even after this warning, he failed to comply with the judge's
directive. Contrary to the probationer's suggestion, the judge was not
obligated at the April 30 hearing again
to offer the probationer appointed counsel where that avenue already
had been explored and rejected. The probationer's right to counsel at his
probation violation hearing was impaired by his own conduct, not by the judge.
Disposition: Affirmed.
(EC)
