Probation Violation/Surrender Hearings

Massachusetts Court Rules that GPS Monitoring Device on Parolee is Unconstitutional, Citing Privacy Concerns

Published on: September 30, 2022 | by Patrick J. Murphy, Esq.

In a recent opinion coming out of an appellate court in Massachusetts, the court ruled that attaching a GPS monitoring device to a criminal defendant, even during that defendant’s probation, is inherently unconstitutional. In this case, the Commonwealth argued that it needed to attach a GPS to a defendant that had been convicted of rape, citing public safety reasons in its argument. The court rejected this reasoning and decided the GPS device was too invasive of the defendant’s right to privacy to be constitutionally sound.

Facts of the Case

According to the opinion, the defendant and the victim in this case had been friends for several years. One night, the victim needed a place to stay and ended up sleeping on the defendant’s floor. When she awoke, the defendant informed her that he had raped her while she slept.

The victim reported the rape, and the defendant was charged. He at first claimed that the sexual intercourse was consensual, but he later went to trial and was found guilty of rape. After four years in prison, the defendant remained on parole, and this case revolved around the specific conditions of his parole.

Massachusetts Supreme Judicial Court Finds Defendant Did Not Violate Special Condition of Probation

Published on: November 11, 2020 | by Patrick J. Murphy, Esq.

The Massachusetts Supreme Judicial Court recently issued an opinion in a defendant’s appeal regarding a violation of probation case. According to the court’s opinion, in 2015, the defendant pleaded guilty to battery on a child under fourteen, indecent assault, and child pornography possession. A judge sentenced the defendant to five years of probation. Under the terms of the probation, the defendant was registered as a level three sex offender under the Sexual Offender Registry Board (SORB), his location was to be monitored by GPS, he was prohibited from having contact with the victim, and he was prohibited from “working, volunteering, or residing” with children under 16 years old.

Evidently, the defendant was a self-employed home-improvement contractor, specializing in repairs of old homes. For more than thirty years, the defendant operated his business out of his home workshop. Per SORB requirements, the defendant filled out and submitted identifying information in 2015 and 2017, indicating that he was self-employed and listing his home address as his employment address. The defendant had the same probation officer for three years, and at no point did anyone advise the defendant to list all of his clients’ addresses as his “employer address.”

During this time, the defendant performed window restoration work at a client’s home. He removed the windows and did the majority of the work at his home workshop. At the time of the incident, the family did not have any children. Shortly after this job was complete, the family had a baby and hired the defendant to perform other home repairs. Over several months, the defendant performed work for the family; but he did not have any contact with the baby. On one occasion, a police officer stopped the man in a shopping plaza when he was on his way from the client’s home. The officer contacted his probation officer to determine whether the defendant registered his work address in the county of the client’s home—which he did not. The defendant was subsequently charged with a probation violation.

Appellate Court Affirms Violation of Defendant’s Probationary Sentence

Published on: October 27, 2018 | by Patrick J. Murphy, Esq.

Recently, a state appellate court issued an opinion in a Massachusetts violation of probation hearing that was premised on the defendant’s alleged possession of an unlicensed firearm. The case presented the court with the opportunity to discuss the quantum of evidence necessary to sustain a violation of probation.

The Facts

The defendant was a juvenile who was placed on probation for an unarmed robbery. While on probation, the defendant was arrested for the possession of a firearm without a license. Evidently, police responded to a call for an instance of breaking and entering. Upon entering the residence, police found several teens in the attic. The defendant was sitting on a chair with a black jacket draped over the back of it.

The police officers put all the teens up against the wall after seeing what they believed to be a handgun protruding out of another teen’s jacket. After searching all the teenagers, police officers found a gun in the black jacket that was draped over the chair that the defendant was sitting in. Later in the evening, two of the teens in the attic told police that the black jacket belonged to the defendant. However, one of the other teens told police that it was his jacket.

Trying to Withdraw Guilty Plea After Probation Violation in Massachusetts

Published on: April 4, 2016 | by Patrick J. Murphy, Esq.

In Commonwealth v. Wallace, the defendant appealed from a sentence that was imposed when his probation for an unarmed burglary was revoked. He’d pled guilty, but the court denied his motion to withdraw the plea.

The case arose when the defendant entered a home one night and stole various effects while the homeowner and her granddaughter were sleeping. The defendant pled guilty to larceny from a building and unarmed burglary. He entered into a plea deal even though he had a significant criminal record, and the Commonwealth claimed that he was a habitual offender. Habitual offenders have a mandatory minimum sentence of 20 years. The defendant was sentenced to three years of probation for burglary and time served on the larceny conviction. His probation issue was transferred.

In 2012, the defendant was charged for a daytime breaking and entering. The Commonwealth alleged he stole property from someone’s house, and the police chased him in his car through residential streets before he jumped out of his car and ran away on foot. Because of the new offense, failure to pay restitution, and a DNA sample, the defendant was found to have violated his probation related to the burglary conviction. He was sentenced to 7-10 years in prison.

Probation Violation in Massachusetts Domestic Assault Case

Published on: February 16, 2015 | by Patrick J. Murphy, Esq.

In Commonwealth v. Polito, a Massachusetts appellate court considered the case of a defendant found in violation of his probation. The case arose on an afternoon in August 2009, when a police officer responded to a report of domestic battery and assault. The officer saw that the victim was shaking and crying and her nose was flat and swollen. The victim told the officer that the defendant had gotten angry and beaten her with an object, broken a broom, hit her with it, and thrown a mug at her face. The mug broke her nose. The officer arrested the defendant, and on his way out he yelled that the incident was the victim’s fault. The victim suffered a broken nose and finger.

The defendant was indicted on two sets of indictments, and he pled guilty. With regard to the first set of indictments, the defendant was sentenced to 2 1/2 years in a house of corrections on three counts of assault and battery with a dangerous weapon, and one witness intimidation count. A portion of the sentence was to be served, with the balance suspended for 10 years with supervised probation. Two conditions of the probation were to undergo mental health evaluation and treatment and to have no contact with the victim. He also received 10 years of concurrent probation with the same conditions for criminal harassment and violating an abuse prevention order.

The defendant also pled guilty on the second set of indictments. For two counts of assault and battery on a public employee and disruption of court proceedings, he was sentenced to 10 years straight probation under the same conditions as the probation for the first set of indictments.
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How to Possibly Avoid Jail Time by Participating in Pretrial Diversion

Published on: May 8, 2013 | by Patrick J. Murphy, Esq.

A little known fact within the Massachusetts criminal justice system, is the potential for any criminal defendant to be put on pretrial probation in lieu of criminal charges. You read that right, any potential defendant.The relevant statute reads as follows:

The superior court, any district court and any juvenile court may place on probation in the care of its probation officer any person before it charged with an offense or a crime for such time and upon such conditions as it deems proper, with the defendant’s consent, before trial and before a plea of guilty, or in any case after a finding or verdict of guilty;

Therefore, in addition to stating that any person may be placed on probation, it also states that the terms of such probation to be those that it deems proper. This allows the court the flexibility to customize the terms based upon the individual case at hand. As you can imagine, however, the reality of actually securing a pretrial diversion in lieu of criminal charges depends upon a variety of factors. Most notably among these is the experience and persuasiveness of your defense attorney.

In practice, the pre-trial probation, which is technically referred to as pre-trial diversion, is a court approved agreement reached between the defendant and the prosecutor prior to trial or the entering a guilty plea. Therefore, if you enter a guilty plea prematurely, such as if you decide to forego the advice of counsel, you effectively waive your right to this potential option.

According to the terms of a pre-trial diversion agreement, the defendant is placed on probation under the care of a probation officer, either supervised or unsupervised, for a defined period of time, and according to certain agreed upon terms. Once the defendant successfully completes the probation term, the charges will be dismissed completely.

However, if the defendant violates any condition of his probation, the charges will not be dismissed, and the case will proceed normally. Meaning charges will be formally filed, and the defendant could face a trial, and potentially jail time. However, a defendant cannot be jailed for violating this pretrial probation, since technically, that individual has not been found guilty of anything yet. However, the court could then decide to hold a person without bail, if it so decides.
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Probation Violation Hearings in Massachusetts and the Importance of an Experienced Criminal Defense Attorney

Published on: October 26, 2011 | by Patrick J. Murphy, Esq.

Are you facing a probation surrender hearing in any Massachusetts court because you were arrested or charged with a new criminal offense? Did your probation officer give you notice to attend an initial probation violation hearing because you allegedly violated the law or a general or specific term included in your probation contract or the conditions of a continuance without a finding (C.W.O.F.)? If so, it is crucial to hire an experienced Massachusetts probation violation defense lawyer right away to avoid being found in violation of your probation obligations.

If you find yourself before the court on an alleged probation violation, the District, Municipal or Superior Court judge has the discretion to impose a bail on you or hold you without bail while you await your final surrender or C.W.O.F. revocation hearing if he or she finds probable cause that you have been arrested or charged with a new criminal offense or that you have not adhered to your probation contract terms. This is the first stage of the probation violation hearing. If you are held without bail that action cannot be reviewed by the Superior Court.

At the final surrender hearing (the second stage of the process) the probation department officer, sometimes assisted by the prosecutor, will present all evidence of any violations usually through witness testimony and documentary evidence. The standard of proof at the final hearing is lower than a trial. The probation department need only prove a violation has occurred by a preponderance of the evidence. The defendant is allowed to testify at the hearing but is not required to testify. The role of the experience defense counsel at both stages is very important to the probationer.
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