· Procedural History
Commonwealth filed petition to revoke defendant’s probation. After
a hearing, the District Court Department, Middlesex County, Lowell Division,
Michael J. Brooks, J., revoked defendant’s probation and sentenced defendant to
prison. Defendant appealed.
· Issue
Whether the probationer’s pending appeal from the revocation of
his probation was rendered moot when he subsequently pleaded guilty to the
crime on which that revocation was based.
· Facts
In 2009, a continuation without a finding was entered on each of
three complaints issued against the probationer in the District Court. The
probation was placed for one year and one of the conditions of his probation
was that he obey all laws.
A few months later, the probationer was served with a notice of
probation violation and hearing based on a complaint that issued in the Lowell
Division of the District Court Department alleging armed assault with intent to
murder.
At the surrender hearing, the Commonwealth called one witness, a
Lowell police officer, who testified.
The victim told the officer
that at a party, the probationer approached, leaned over the victim, stabbed
him twice and said “I hope you bleed to death,” and then ran away.
The girl friend of the victim, who had been together with the
victim at the time of the incident, was interviewed separately and corroborated
the victim’s story.
The officer also interviewed the probationer’s girlfriend, who
stated that she was with the probationer at the party for the entire time,
except when they were leaving. At that time, the probationer told her that he
had to do something and that he would be right back. He left and went back
toward the party. He returned “a minute later” and told her they needed “to get
out of there.”
At the surrender hearing, the judge found that the probationer
violated his probation by committing armed assault with intent to murder.
Guilty findings were entered on each of the three complaints that
had been continued without a finding. The probationer’s probation was revoked,
and he was sentenced to one year in a house of correction on one of the
complaints. He appealed, arguing that the Commonwealth’s evidence consisted of
unreliable hearsay and the judge failed to make the requisite finding of good
cause for proceeding without at least one percipient witness.
While the appeal was pending, the probationer pleaded guilty in
the Superior Court to armed assault with intent to murder and assault and
battery by means of a dangerous weapon, the basis of the probation revocation.
The Commonwealth moved to dismiss the appeal and to enlarge the record, arguing
that, because the probationer pleaded guilty to the underlying crimes, the
appeal was moot. The probationer filed an opposition to the motion and the
application for direct appellate review.
· Holding
After granting defendant’s application for direct appellate
review, the Supreme Judicial Court, Ireland, C.J., held that defendant’s guilty
plea to charges underlying revocation rendered appeal moot.
· Reasoning
Because we conclude that the probationer’s claim of error, the
reliability of the hearsay evidence used against him, pertains to the judge’s
factual finding that he violated his probation, the appeal is moot.
Although a conviction or guilty plea to a subsequent crime renders
moot an appellate claim that a judge erred in making the factual determination
that a probationer violated the terms of his probation, it does not render moot
a claim that some aspect of the proceeding violated the probationer's
constitutional rights, because it “potentially impact[s]” the second step of
the process, i.e., the disposition.
In this case, the claim that the hearsay offered at the probation
revocation proceeding was unreliable involves the first step in the probation
violation proceeding, that is, the factual determination whether the
probationer violated his probation. The subsequent pleas of guilty to the
offenses that formed the basis of the judge's factual finding of a violation of
probation renders moot the claim that the hearsay was unreliable.
The probationer argues that even though he pleaded guilty, if we
determine that the hearsay was unreliable, the ultimate disposition could
change.
It is true that the probationer arguably suffered significant collateral
consequences once the judge found that he violated his probation. It is also
true that if there were a new probation proceeding, the disposition potentially
could change. However, the fact that the disposition of the probation matter
potentially could change is not enough to alter the nature of the probationer's
actual claim of error, which goes to the fact-finding step of the probation
violation proceeding. Accordingly, the probationer's subsequent plea of guilty
renders his appeal moot.
· Disposition
Appeal Dismissed. (EH)
