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13-P-1244 (Mass. App. Ct. Feb. 4, 2015)




NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

On August 9, 2011, a Superior Court judge found the defendant, William Polito, in violation of his probation and, on November 3, 2011, imposed sentence on the various charges on which he had been probated. On April 23, 2013, after a District Court jury acquitted him of the new charge that was the basis of the probation violation finding, he filed a motion for reconsideration of his violation of probation, which was denied.

On appeal, the defendant argues that the judge abused her discretion by not reconsidering her finding of a probation violation in light of the defendant's subsequent acquittal of the new charge. In addition, he contends that the judge abused her discretion by not reconsidering the punishment she imposed, in light of a mitigating thirty-three page competency and criminal responsibility evaluation which, he alleges, was not known to exist at the time sentence was imposed.

For substantially the reasons set forth in the Commonwealth's brief at pages 9-12, we find no merit to the defendant's arguments and, accordingly, affirm the order denying his motion for reconsideration.

Background. On August 2, 2009, at approximately 4:30 P.M., Plainville police Sergeant Carter responded to 54 South Street, Plainville, on a report of domestic assault and battery. Upon arrival, she observed the victim, who was shaking and crying uncontrollably. The victim's nose was flattened and swollen. She informed Carter that the defendant had become enraged and used an object to beat her arms and legs, broke a broom and hit her with the broom, then threw a ceramic mug into her face, breaking her nose. The defendant was arrested and, while being escorted out of the apartment, yelled at the victim, telling her that the entire incident was her fault. The victim was taken to the hospital and diagnosed with a broken nose and broken finger.

On March 4, 2010, the defendant was indicted in the Superior Court in two separate sets of indictments. On April 11, 2011, he pleaded guilty to a number of these charges. On the first set of indictments, he was sentenced on three counts of assault and battery by means of a dangerous weapon and one count of intimidation of a witness to concurrent two-and-one-half year sentences, in a house of correction with nineteen months to serve and the balance suspended for ten years with supervised probation. The conditions of probation required the defendant, among other things, to stay away from, and have no contact, directly or indirectly, with the victim, to stay out of Plainville, to undergo mental health evaluation and treatment as directed by the probation department, and be subject to one year of GPS location monitoring. On counts of criminal harassment and violating an abuse prevention order, he received ten years' straight probation, concurrent and with the same conditions.

The first set of indictments concerned the events of August 2, 2009. Later, in December, 2009, while the defendant was in the dock area of the District Court courthouse in Wrentham, he became combative, yelling and screaming, then ran down the stairs. A court officer attempted to restrain him and an altercation ensued, resulting in the second set of indictments.

In addition, on the second set of indictments, the defendant pleaded guilty to two counts of assault and battery on a public employee and disrupting court proceedings, and was sentenced to ten years' straight probation concurrently with, and under the same terms and conditions as, the probation for the first set of indictments. The defendant signed the order of probation conditions that day, to become effective on April 14, 2011.

On June 20, 2011, a notice of probation surrender issued to the defendant for violating the no-contact condition of his probation and for violating an abuse prevention order.

At the final probation surrender hearing, on August 9, 2011, the sole Commonwealth witness was Sergeant Carter of the Plainville police department, who testified, in relevant part, to the following. On June 6, 2011, she spoke to the victim, who informed her that she had an outstanding G. L. c. 209A abuse prevention order against the defendant, and showed Carter a card she had received in the mail over the weekend. The return address listed the defendant's name and an address in North Attleboro. The postmark cancellation of the stamp was from Boston. The card was a birthday greeting to the victim. Inside the envelope, in handwriting identified by the victim as not belonging to the defendant was a short note. The card was signed in two places in handwriting the victim identified as the defendant's. In addition, there were some drawings of hearts on the card which the victim identified as the manner in which the defendant decorated letters when she and the defendant were together.

Carter further testified that the victim told her the defendant had a limited ability to write and would ask others to write a message for him then he would sign the message. The victim was upset, visibly, and was shaking. As a result, Carter obtained a warrant for the defendant's arrest.

The defendant testified on his own behalf and denied sending the card to the victim.

At the conclusion of the surrender hearing the judge found the defendant in violation of his probation. At the sentencing phase of the final probation surrender hearing, the defendant's probation officer, Mark Mamet, informed the judge that the defendant had mental health issues, that he had been evaluated by the court clinician prior to the final surrender hearing, but that he was deemed competent. The judge ordered imposition of the suspended sentences, consecutive from-and-after committed sentences of two-and-one-half years on the criminal harassment charge and one count of assault and battery on a public employee, and ten year concurrent probationary sentences on the remaining charges.

Subsequent to the final surrender hearing, the defendant was tried before a District Court jury and was found not guilty of violating the restraining order issued to the victim.

1. Probation violation finding. The defendant contends that the judge erred in refusing to reconsider in light of his acquittal on the charge underlying the probation violation finding, essentially because the evidence at trial established that the victim only saw the card after her friend retrieved it from her mailbox and brought it to the police station. Thus, the defendant argues, his right to due process at the surrender hearing was violated because Carter's hearsay testimony was unreliable and incomplete, and the judge abused her discretion by not reconsidering and reversing her finding of a probation violation.

We are not persuaded. As the Commonwealth notes in its brief at page 9, "the fact of an acquittal is legally irrelevant to the validity of the finding of a probation violation due to the differing standards of proof at the two proceedings," citing Commonwealth v. Holmgren, 421 Mass. 224, 225-228 (1995). See id at 225-226 ("In a criminal case, of course, the Commonwealth must prove the elements of each crime charged beyond a reasonable doubt. In a probation revocation hearing the Commonwealth bears a lesser burden [of] proof by a preponderance of the evidence . . . .")

Here, there was enough evidence offered by the Commonwealth at the surrender hearing which, viewed reasonably, was sufficient to permit the judge to conclude that a violation occurred.

The judge made an implicit finding that Sergeant Carter's hearsay testimony was reliable given her presence on the scene shortly after the original crimes had occurred and her observations of the victim.

2. Sentencing. We find no merit to the defendant's argument that the judge abused her discretion in refusing to reconsider her sentencing of the defendant based upon a mental health evaluation report by Frederick W. Kelso, Ph.D. The report is not new evidence because the record establishes that the report was available to counsel at the time of the probation surrender proceedings. The report was filed in the Norfolk Division of the Superior Court Department on March 18, 2011.

Moreover, the report was merely cumulative of the information presented at the surrender hearing by the attending probation officer and through the testimony of the defendant himself. The defendant testified that he was engaged in mental health counseling, could not read and write, and took medication for mental health issues for many years, thus highlighting his history of treatment for mental health issues.

Finally, the defendant does not point to any part of Dr. Kelso's report that, if presented to the judge, would have made a probable difference in the sentences imposed by the judge.

Order denying motion for reconsideration of violation of probation affirmed.

By the Court (Green, Graham & Katzmann, JJ.),

The panelists are listed in order of seniority.

Clerk Entered: February 4, 2015.

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