-: SJC-13146, Commonwealth v Nicholas G. Santana.
-: Okay, Attorney Helpin.
-: Chief Justice Budd
and Associates Justice of the Supreme Judicial Court,
may it please the Court,
I would like to begin with the statute,
the 2-79 Section 27.
This statute permits a Superior Court Judge
with sentencing a defendant to a state prison
to audit that sentence to be served forthwith.
This statute was enacted in 1881.
And at that time, there was no such a thing
as a split sentence,
which is at the core of this case.
There was no probation.
So every sentence was a committed sentence.
The question is whether the probation that follows
the committed part of the sentence
should also be considered to to be served forthwith.
The Commonwealth points to the words of the statue
that say that if a convict serving a sentence
of imprisonment in jail or house of correction
is convicted of a felony,
the court may impose the state sentence
to be served immediately,
which has the effect of wiping out
the House of Corrections sentence.
-: Well, we know that's true over here.
Over here, I'm sorry.
It's hard to find us.
Yeah, sure, it wipes out
the committed portion of the sentence.
That seems clear.
But when you talk about what happens,
it's the forthwith sentence being served
in the jail or the house of correction.
That doesn't seem to address a probation,
I'll say the words probationary sentence.
Assume for the sake of my question
that probation is a sentence, which I know you agree with.
Why does that language, the actual text,
reach probationary sentences?
-: So first, looking at the words of the statute,
the statute says that after the state sentence is served,
the convict shall be removed to the reception center,
established based on some statute,
and shall be discharged at the expiration of his sentence,
which is the state sentence.
And this statute was amended one time in 1955.
At that time there was probation, there was split sentences.
And this part of this section, Section 27,
was left the way it was.
The only change was that before it read,
instead of reading "reception center,"
it was a "state prison."
Also the same time in 1955,
the Section 28, which was also forthwith sentence,
that part that I just read,
that the convict should be discharged,
was amended and actually deleted.
In one of the cases,
the only case, actually, that cites Section 27
is Dale vs. Commonwealth, which dealt with Section 28.
And the court actually focused on that language
and that the legislature left that language in.
But this court has also decided Hennessy vs. Superintendent,
on defaming him institution,
which dealt with awarding good time,
earn good time, and statutory good time.
And in that case, the court held
that a split sentence is a single sentence.
It's not two sentences.
If the court would accept the Commonwealth's interpretation,
this would break up this sentence,
the split sentence, into two sentences.
And indeed, this part of the sentence, the probation,
would follow this state sentence, and the state-
-: The statute recognizes that, for instance, on your point,
there's no more statutory good time, but earned good time.
You don't get earned time for the portion of the split
that you're not serving.
-: Well, that's correct,
but the way the court reasoned in Hennessy
is it's really important for that proposition
that it is one sentence.
So for example,
if somebody has a two year sentence altogether,
so one year to serve, one year suspended,
and that person then violates probation,
the way you have to, according to Hennessy,
you calculate the earned good time,
or whatever good time the person earned
would be on the basis of the two year sentence,
which is usually you get more good time
if you have a longer sentence.
-: I'm sorry, I should have asked this right away.
So your argument is that the probationary sentence
is wiped out,
and so we don't even have to reach
some of these other issues.
But as far as the Commonwealth points out,
that you peeled from the revise and revoke,
and that there has never been a request
to vacate the sentence because of the colloquy
or because of a condition of probation,
batterer's treatment program.
And so therefore you didn't file that within 30 days,
so that issue is not before us,
and you have to file a motion for new trial under 30-B
to have those issues addressed.
-: It's true that that didn't happen.
So I think the way this court can address
the issue that I just raised
would be to consider the motion that was filed,
the Rule 29 motion, as a Rule 30-A motion.
That's actually not cannot be disputed
that the only way to reach this issue
is to consider to deem it to be a Rule 30-A motion.
Now, the attorney that's representing the defendant,
she actually said that this is a issue of first impression.
And I think it's a really important issue
for the score to reach.
I would want to say this,
that the sentence that the statute
is not a "get out of jail free" card.
It's get out of jail into prison.
And prisons are very different places
than House of Corrections or jails.
They are much more secure,
they were basically solitary confinement
and hard labor cases.
So the idea that this sentence, the split sentence,
then should be followed after the state sentence,
which is sometimes years, sometimes decades
by probation imposed very long time ago.
It acts as a practical matter.
It doesn't make a lot of sense.
-: I'm sorry, can you go to your major issue, though?
I understand we may not reach it
and there's issues about whether it's been raised.
But nonetheless,
one of the most important points in your brief
is that you're saying the colloquy was inadequate?
Can you talk about that, please?
-: Yes, the rule basically is that due process requires
that the judge before the judge sentences some defendant
that the judge is informed
about what the defendant actually did.
I mean, it doesn't have to be an elaborate cross examination
or anything like that,
but the judge before she can actually sentence someone
on the violation of probation should know some facts.
And here, the absolute-
-: I'm sorry to interrupt, Counsel, but isn't your argument,
with regard to the batterer's program,
is that the judge punished the defendant for the violation
as opposed to the underlying crime?
-: Well yeah, that, too.
She, um-
-: But isn't that, I guess I'm noting a contradiction
in what you had said in response to Justice Lowy's question
with your argument that the batterer's program
was outside of what she was entitled to do.
-: Yes, and I actually researched cases
from other jurisdictions as well.
I didn't actually cite them, but I did.
And I actually haven't found a single case
where it's clear, like in this case,
that the judge was imposing this condition
that was clearly not relevant to the underlying offense.
In all the cases say that the principle of probation,
of sentencing someone,
like in this case it's just straight probation,
is for the offense that she was actually convicted for.
And I didn't find single case
that the judge could then consider the conduct itself,
the violation of some other criminal law,
to impose condition that only relate to this offense
that she hasn't even been convicted of.
-: Counsel, could I press you on that?
Because if we zoom out for a minute
and the purpose of the probation
is to do what we can to have the probationer
successfully complete probation,
to impose those things
that that person may need to be successful.
And if the violation includes,
that's been proven by a preponderance of the evidence,
that there is some underlying issue with anger,
or particularly anger in a domestic situation,
why wouldn't it make sense?
Assuming that the case that generated the probation
has nothing to do with that, let's just say it's an OUI.
Why wouldn't it make sense for the judge to say,
in order for me to help this person,
because they could be sentenced on the violation, right?
Counsel: Yes.
-: So why wouldn't it make sense for the judge,
within their discretion, to say here's a universe of things
that I need to address right now
to make this individual, perhaps, more successful?
Why wouldn't that make sense?
-: I think that it sort of makes sense,
but there certain and very serious concern
about the judge doing that.
And the first one is, is that when the person
initially pleads guilty to the crime,
like you did plead guilty,
and the lawyer cannot tell that person
what conditions he's actually agreeing to
when he's pleading guilty,
this is what's going to happen.
I'm concerned about lawyers advising clients to plead guilty
when they can't tell them what's going to happen to you.
How do you know to even advise somebody
that that's good advice?
-: So you're saying that not knowing about the fact
that he could have been ordered
to complete the batterer's program,
not knowing that was the problem?
-: Well, initially, yes.
I mean, this is just one example of how the judge can use
the violation of probation to impose additional conditions,
and on the attorney who represented that defendant initially
and advised that he plead guilty,
how would he know what would happen later on?
Do you agree to then go to this program
or a myriad of other conditions?
-: No one can predict the future,
and that was something that,
I mean, he violated the law, right,
by assaulting his partner.
-: You can generally tell somebody,
like everyone knows you shouldn't violate the law.
And obviously, you can go to prison if you do.
But as a condition, that would be something
that somebody would have to calculate,
"Do I want to plead guilty?"
And our system actually works on guilty pleas.
So I think this one or another condition would as well be,
you at least should tell somebody as much as you can
so they can make a decision
whether they want to go to trial or not.
And I think that, and in addition, this case,
the case that he had in another court.
And that court, in fact,
could impose that condition in any event,
so it's not like that condition cannot be imposed
even as a condition of release or whatever.
So it's not like the government
is not protected and cannot use this,
the fact that he has a probation and has been violated on it
Al committed a crime.
Still, there are means to address
the underlying issue in another court,
in a court that probably has much more knowledge
in facts relating to the case.
-: Okay, go ahead. -: No, no, no.
I was going to say if there's no further questions,
but if you've got one, please.
Justice Lowy: I'm all set, thank you, Chief.
-: Okay, thank you very much.
Counsel: Thank you.
-: Attorney Blatchford.
-: May it please the Court, Howard Blatchford,
Assistant District Attorney for Middlesex
on behalf of the Commonwealth.
Chapter 2-79, Section 27 has four predicates
before a sentence to a house of correction or jail
can be discharged.
One, it requires that the inmate is actually serving.
Two, a sentence, three, of imprisonment,
and four, in a jail or house of correction.
Only when those four conditions are met with the sentence
to a house of correction or jail be discharged.
And the case law supports the position
that all that is discharged is the sentence being served.
There are three cases that have dealt with this statute,
although largely in dicta,
those are Kenny, Leiden, and Dale,
cited in Commonwealth's brief.
And in Kenny, this court said that the court,
when sentencing someone,
the superior court, when sentencing someone to state prison,
quote "wipes out the sentence to the house of correction."
Said nothing further about suspended sentences or probation.
Similarly, in Leiden, which quoted Dale, the third case,
which quoted Kenny,
the court said the sentence then being served
in the jail or house of correction is terminated.
Nothing suspended sentences or probation.
The legislature looked at the statutes in 1955,
and the only substantive change didn't occur in Section 27,
it occurred in Section 28,
which dealt with the Concord Reformatory
and reformatory sentences.
But nothing was done with respect to Section 27.
The legislature could have added
suspended sentences in probation,
had it chose to do so, but it did not.
-: So Counsel, as a practical matter, then,
the probationary term starts
after the state prison sentence?
Is that your position?
-: I believe it would, Your Honor, yes.
And the purpose of the statute, I believe,
is evident from its text.
A forthwith sentence moves the defendant, forthwith,
from the less restrictive environment
of a house of correction,
to the more restrictive environment
of the state prison for punishment for a felony,
which is considered a more serious offense.
And it also avoids the security risk
that might attend to an inmate residing,
or continuing to reside, in the house of correction
after he's been sentenced to state prison.
The Commonwealth's position
also furthers the purposes of sentencing and rehabilitation,
in that construing the statute in a way
that would sustain the probationary term and conditions
provides for the rehabilitation of the defendant
in a way that expunging or discharging that probation would.
Turning to the second major issue
concerning the condition of probation
requiring the defendant to the batterer's program,
several point in order.
First, the defendant agreed to all of this.
Although it's not clear from the record
whether or not the batterer's program
had been discussed with the defendant
before he arrived in court that day,
it was discussed in his presence,
and it occurred before the colloquy with the judge.
So it was all out there before he agreed to this
and was advised of the rights
that he was waving by the judge.
Second, a sentencing judge is not absolutely limited
to the circuit circumstances of the crime
for which the defendant
was initially convicted and punished.
The court can consider new information
that has arisen since the date of conviction,
and this is reflected in the Superior Court guidelines
concerning probation conditions.
-: But those guidelines aren't going to help
if we follow Commonwealth vs. Goodwin,
which requires that the condition
relate to the underlying crime.
So the Superior Court guidelines can't go further
or in a different direction than the case law.
So that means that we really need to take a look at Goodwin
and see whether or not, just as George had said,
it seems to make sense, I agree,
that you can take into account the here and now,
what's going on with this person
facing a violation of probation hearing.
But to do that, don't we have to face up
to Commonwealth vs. Goodwin?
-: I think that issue can be addressed
in the context of other cases that have been decided,
fairly recently as well.
And that is that the case law in this
allows for conditions reasonably related
to the goals of probation to be considered
when probation is ordered.
And I direct the Court's attention
to Commonwealth vs. Feliz, a 2020 case, 46-Mass-5-10.
Commonwealth vs. Eldrid, 4-80-Mass-90 et 95, page 218.
And the goals of probation
had been further defined by this Court to include
the rehabilitation of the probationer
in protection of the public.
So I believe that in looking to achieve those goals,
the court can consider these additional considerations
in terms of what had happened
since the time of his original conviction.
-: Just so that we have to face what we're dealing with here,
we've never reversed Goodwin
that requires that you can only impose a condition
that could have been imposed with the original sentence.
-: And I would suggest that this condition
was a condition that could have been imposed
with the original sentence.
It certainly became more apparent
after the subsequent crimes that the defendant committed,
which brought him to this probation hearing.
But certainly firearms charges,
in connection with possible domestic violence,
they just don't mix well.
And this is matter of common knowledge,
it's acknowledged in the literature as well.
And I'd point out that the defendant here pled guilty
on September 11th, 2004 to the firearms charges, Middlesex.
And he was in court, excuse me...
I may have that date wrong.
The change of plea was-
-: It's 2014, but you're saying,
"Okay, sir, you're pleading guilty
to possession of a firearm and a loaded firearm.
I'm going to impose a condition
of batterer's treatment program."
You can do that?
-: I believe so.
Because I believe that it's well-known
that possession of firearms,
particularly illegally possessing firearms,
is a very toxic condition in the area of domestic violence.
And I would suggest that this condition
was an appropriate condition when imposed.
-: So, I'm sorry, did the Lowell case,
did that involve domestic violence at all?
-: It did.
The original charges, Middlesex charges,
were firearms charges.
And then the additional charges that he incurred
while in the house of correction,
they dealt with domestic violence,
assault and battery on a family member,
reckless endangerment of a child,
as well as possession of a drug.
So clearly the issue was in front of the court
when he appeared for the probation.
-: I'm talking about the original case
for which he was in the house of corrections.
Are you saying that was domestic violence?
-: No, the record doesn't reflect that.
It was possession of firearms, similar to the-
-: But I thought, in response to Justice Lowy,
you said that a condition of probation in that case
could have been a batterer's program requirement.
-: I think that the issue of domestic violence
is so severe and so important
that if there was any evidence-
-: Everybody can be ordered to do a batterer's program?
I'm confused by your...
I mean, I agree with you that it's a problem.
So now we can just, everybody has to do batterer's program?
-: If there was any evidence
that he was involved with a partner
with whom there was any strife and all at that time-
-: That wasn't my question.
In the record, is there any evidence-
-: There is no evidence in the record to that effect, no.
The first evidence that I believe appears in the record
is the notice of probation violation
served on the defendant, in hand,
prior to the hearing at which he agreed to all of this,
that he had been charged with assault and battery
of a family member.
-: So the issue in this case,
that probably arises the most every day,
is the colloquy with a probation violation
where there's a stipulation.
And you have a preliminary issue
as to whether it's appropriate before us,
and then you also believe the colloquy is adequate.
-: Right, I believe that the case law on this issue
is that the court looks at the totality of the circumstances
at the time of the admission or stipulation to the violation
and whether or not the defendant was sufficiently informed.
Here, he received, in hand, prior to the probation hearing,
the notice of probation violation,
which included all of the charges
he had incurred in Lowell shortly before that.
And he was advised by the judge
of the rights he was waving at the hearing.
I believe that's sufficient, in a totality of circumstances,
to put the defendant on notice
of what it was that he was waving.
It makes his waiver knowing and voluntary.
-: Counsel, could I press you on that?
I understand it's post-dispositional,
and I know it's not an apples-to-apples analog, I do,
I'm going to give you that.
But if he were pleading to an underlying crime,
the Commonwealth would say, in open court,
the facts that they would prove at trial
should the matter have gone to trial.
And the court will ask the defendant to listen to it
and ask them if they agree
that if the Commonwealth could have proved that
that they could have been found guilty.
There would be some level of expansion
of what the underlying facts of the crime are.
So by extension,
if you're stipulating to a violation of probation
to some crime that is not before that court,
it may not even be in that court.
It might be in some other court somewhere.
And all you have is a docket number and the charges.
Why isn't it that the judge on the violation
needs to have some level of description
of what the underlying charge of the violation is
in order for the probationer to have some intelligent idea
as to what they are stipulating to.
-: I understand the question, Your Honor.
In this case, the defendant had more and the judge had more
than just the docket number of the case,
the charges that have been brought.
The notice of probation violation
spelled out what the charges were.
Granted, it didn't go into the same level of detail
that would typically be heard at a change of plea,
where the prosecutor would recite
the Commonwealth's evidence,
but nonetheless defendant had notice,
he was represented by counsel, she had notice.
And not withstanding all of that, he agreed to do this.
So I submit that in the totality of the circumstances,
which is the standard that applies in this situation,
that that standard was met,
and the defendant made a knowing and voluntary waiver.
Justice: Is it your view that we should reach this issue?
-: It's my view that you should not reach this issue,
because there was no appeal from the original June order.
In fact, the defendant was completely satisfied with it
until he learned that he might have
a "get out of jail free" card
in this forthwith sentence matter.
And it was only then that the objection was raised
and there was an attempt made to appeal from the June order,
in the notice of appeal that was ultimately filed
the day after the order denying the motion
to revise and revoked sentence.
-: So you're thinking that the appropriate thing to do
is to go back and have a motion for new trial
seeking to vacate the agreement, the stipulations.
-: Well, what he should have done-
-: But he could still do that. -: Could still do that. He.
-: Could still do that, right?
Counsel: Right.
-: So what is your response to Counsel's argument
that we should just treat it as if he had done that?
-: I would say that he didn't do it,
he didn't articulate particularly his reasons-
-: Well, that I understand,
and I think that Counsel has admitted that.
But the question was,
in terms of the argument now I'm presented at oral argument,
that we should just treat it as such.
What is your response?
-: My response would be the correct way to deal with this
would be to deal only with the revise and revoke order
and allow the defendant,
if he feels that the colloquy was deficient
or whatever else was deficient
with respect to that original hearing,
that he should articulate it in a new motion.
-: Could we address it as a substantial risk
of miscarriage of justice?
-: Whatever he might find it to be.
Justice Lowy: No, I mean here.
-: Yes.
If there are no other questions,
Commonwealth will submit on this brief.
Justice: Thank you.