Commonwealth v. Eldred , 480 Mass. 90 ( 2018 )

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
SJC-12279
COMMONWEALTH vs. JULIE A. ELDRED.
Middlesex. October 2, 2017. - July 16, 2018.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, &
Kafker, JJ.
Practice, Criminal, Probation. Drug Addiction.
Complaint received and sworn to in the Concord Division of
the District Court Department on June 13, 2016.
A proceeding on violation of probation was heard by Sabita
Singh, J., and a question of law was reported by her.
The Supreme Judicial Court granted an application for
direct appellate review.
Lisa M. Newman-Polk (Benjamin H. Keehn, Committee for
Public Counsel Services, also present) for the defendant.
Maria Granik, Assistant Attorney General, for the
Commonwealth.
The following submitted briefs for amici curiae:
Amy M. Belger for Massachusetts Medical Society & others.
Martha M. Coakley & Rachel C. Hutchinson for National
Association of Drug Court Professionals.
Steven Fitzgerald, pro se.
Matthew R. Segal & Adriana Lafaille for American Civil
Liberties Union of Massachusetts, Inc., & others.
2
LOWY, J. Following a probation violation hearing, a judge
in the District Court found that the defendant, Julie A. Eldred,1
had tested positive for fentanyl, in violation of a condition of
her probation requiring her to abstain from using illegal drugs.
The judge ordered that the conditions of her probation be
modified to require her to submit to inpatient treatment for
drug addiction. The defendant appeals from that finding and
disposition. The judge also reported a question drafted by the
defendant concerning whether the imposition of a "drug free"
condition of probation, such as appeared in the original terms
of defendant's probation, is permissible for an individual who
is addicted to drugs and whether that person can be subject to
probation violation proceedings for subsequently testing
positive for illegal drugs.
We conclude that, in appropriate circumstances, a judge may
order a defendant who is addicted to drugs to remain drug free
as a condition of probation, and that a defendant may be found
to be in violation of his or her probation by subsequently
testing positive for an illegal drug.2 Accordingly, we affirm
1 We refer to Julie Eldred as the defendant, rather than the
probationer, for purposes of consistency and clarity.
2 We acknowledge the amicus briefs submitted by the American
Civil Liberties Union of Massachusetts, Inc., Center for Public
Representation, and Prisoners' Legal Services; Massachusetts
Medical Society, American Academy of Addiction Psychiatry,
Association for Behavioral Healthcare, Grayken Center for
3
the finding that the defendant violated her probation and the
order requiring her to submit to inpatient treatment for her
addiction.
Background and prior proceedings. On July 18, 2016, the
defendant was arraigned on a felony charge of larceny for
stealing jewelry valued over $250 from the home of an individual
for whom the defendant provided dog-walking services. The
defendant admitted to the police that she had stolen the jewelry
and had sold it to obtain money to support her heroin addiction.
On August 22, 2016, the defendant admitted to sufficient facts
to warrant a finding of guilt. A judge in the District Court
continued the defendant's case without a finding, and imposed a
one-year term of probation with special conditions related to
her substance abuse that included requiring her to remain drug
free, submit to random drug screens, and attend outpatient
substance abuse treatment three times each week.3 Prior to
accepting the terms of her probation, the defendant did not
object to the condition that she remain drug free, or otherwise
Addiction Medicine at Boston Medical Center, Massachusetts
Organization for Addiction Recovery, Massachusetts Society for
Addiction Medicine, Northeastern University School of Law's
Center for Health Policy and Law, and twenty-eight others;
Steven Fitzgerald; and the National Association of Drug Court
Professionals.
3 The special condition of probation requiring the defendant
to remain drug free was announced in open court, and was
included in the written probation agreement, which the defendant
signed.
4
express that her diagnosis of substance use disorder (SUD)
rendered her incapable of remaining drug free.
On August 29, 2016, the defendant began outpatient
addiction treatment at a hospital. As a component of her
treatment, an addiction specialist prescribed the defendant a
medication that is used to treat symptoms of withdrawal and
addiction to opiates.
On September 2, 2016, only eleven days after the case had
been continued without a finding and the probation had been
imposed, the defendant tested positive for fentanyl, following a
random drug test administered by her probation officer. The
probation officer encouraged the defendant to enter inpatient
treatment, but the defendant allegedly refused. The probation
officer then filed a "Notice of Probation Detention Hearing"4
with the District Court. The detention hearing was conducted on
the same day as the defendant's positive drug test because, as
her probation officer testified, the defendant's parents were
out of town and "it was the Friday before Labor Day and [the
probation officer] felt that [the probation officer] couldn't
4 According to Rule 5(a) of the District/Municipal Court
Rules for Probation Violation Proceedings (LexisNexis 2016), a
probation detention hearing "may be conducted to determine
whether a probationer shall be held in custody pending the
conduct of a probation violation hearing. The issues to be
determined at a probation detention hearing are whether probable
cause exists to believe that the probationer has violated a
condition of the probation order, and, if so, whether the
probationer should be held in custody."
5
have [the defendant] leave [the probation officer's] office
testing positive for Fentanyl."
Based on the evidence presented at the hearing, the judge,
who was the same judge who had accepted the defendant's plea and
imposed the conditions of probation, determined that there was
probable cause to believe the defendant had violated the "drug
free" condition of her probation by using fentanyl. Because
defense counsel was not able to secure a placement for the
defendant at an inpatient treatment facility, the judge ordered
that the defendant be held in custody until a placement became
available. The defendant was released into an inpatient
treatment facility after ten days in custody.
On November 22, 2016, a different District Court judge
presided over the defendant's probation violation hearing.
Despite conceding that she had used fentanyl, the defendant
contested that she had violated the terms of her probation. The
defendant argued, for the first time, that she had been
diagnosed with SUD, which rendered her incapable of remaining
drug free. In the defendant's view, her use of drugs could not
constitute a wilful violation of her probationary condition to
remain drug free. She submitted several affidavits from experts
in support of her claim; however, no expert testimony was
offered at the hearing to opine on SUD or its potential effects
on the brain.
6
The judge determined that the defendant had violated the
drug free condition of her probation by testing positive for
fentanyl. The defendant filed a motion to vacate the condition
of probation requiring her to stay drug free, arguing that the
condition violated various State and Federal constitutional
rights. That motion was denied. The judge then modified the
conditions of the defendant's probation by adding the condition
that she continue inpatient treatment. The judge also allowed
the defendant's motion to report to the Appeals Court the
question concerning the imposition of the condition of probation
that the defendant remain drug free. We granted the defendant's
motion for direct appellate review.5
Discussion. 1. The reported question. The judge sought
to report the question to the Appeals Court under Mass. R. Crim.
P. 34, as amended, 442 Mass. 1501 (2004). It is doubtful she
had the authority to do so. Rule 34, like the Rules of Criminal
Procedure generally, applies only in criminal cases. The matter
before the judge -- a probation violation hearing -- was not a
criminal matter. See Commonwealth v. Patton, 458 Mass. 119,
124-125, 129 (2010). Moreover, the reported question, as it was
5 After we granted the defendant's motion for direct
appellate review of the question reported to the Appeals Court,
the defendant separately appealed from the decision that the
defendant was in violation of probation. We transferred that
appeal to this court on our own motion and consolidated the two
matters.
7
originally formulated, contains a factual conclusion about the
science of addiction that was not resolved at the trial court
level. See Commonwealth v. Duncan, 467 Mass. 746, 753 n.7,
cert. denied, 135 S. Ct. 224 (2014) ("We answer only the
reported question of law, not the question of fact");
Commonwealth v. Yacobian, 393 Mass. 1005, 1005-1006 (1984)
(declining to rule on questions of law predicated on unresolved
factual issues).6 Nevertheless, this question presents issues of
significant magnitude that require resolution, especially where
they have been fully briefed and at least one issue appears to
be moot. We therefore employ our general superintendence power
to address the matter. See Cobb v. Cobb, 406 Mass. 21, 24 n.2
(1989). See also Commonwealth v. Doe, 420 Mass. 142, 145-146
(1995), overruled on another ground by Commonwealth v. Pon, 469
Mass. 296 (2014). But first, in order to make the question one
6 In its original form, the reported question presumes that
there is a scientific consensus concerning SUD's impact on the
brain, particularly how it affects an individual's ability to
abstain from using drugs. Embedded within the question, which
was drafted and submitted by the defendant, is the conclusion
that this scientific issue was resolved in the defendant's
favor. This issue, however, was not subject to adversarial
scrutiny, let alone resolved. This is elucidated by the fact
that the parties and amici present varying models of addiction
and varying conclusions concerning the science of addiction.
For example, the defendant advances a model of addiction where
addiction is understood as a brain disease that deprives an
individual of his or her free will to abstain from using drugs.
In contrast, the Commonwealth advances a behavioral model of
addiction which postulates that SUD may affect an individual's
urge to use substances, but it does not render that individual
without the free will to use substances.
8
that can be answered on the record before us, we reformulate the
reported question as follows:
"Where a person who committed a crime is addicted to
illegal drugs, may a judge require that person to
abstain from using illegal drugs as a condition of
probation? If that person violates the 'drug free'
condition by using illegal drugs while on probation,
can that person be subject to probation revocation
proceedings? Additionally, at a detention hearing, if
there is probable cause to believe that a person with
a 'drug free' condition of probation has violated that
condition by using an illegal drug, may that person be
held in custody while awaiting admission into an
inpatient treatment facility, pending a probation
violation hearing?"
As explained infra, given relevant statutes, and court
rules and policies, coupled with the goals of probation, we
answer each portion of the reformulated question in the
affirmative.
The circumstances of the defendant's case exemplifies why
the imposition of a drug free condition of probation and the
enforcement of such a condition are permissible within the
confines of the probation process. From crafting special
conditions of probation to determining the appropriate
disposition for a defendant who has violated one of those
conditions, judges should act with flexibility, sensitivity, and
compassion when dealing with people who suffer from drug
addiction. The rehabilitative goals of probation, coupled with
the judge's dispositional flexibility at each stage of the
process, enable and require judges to consider the unique
9
circumstances facing each person they encounter -- including
whether that person suffers from drug addiction. This
individualized approach to probation fosters an environment that
enables and encourages recovery, while recognizing that relapse
is part of recovery.
2. Probation. a. Disposition. As an alternative or
supplement to incarceration, probation is "a legal disposition
which allows a criminal offender to remain in the community
subject to certain conditions and under the supervision of the
court." Commonwealth v. Durling, 407 Mass. 108, 111 (1990).
The primary goals of probation are twofold: rehabilitation of
the defendant and protection of the public from the defendant's
potential recidivism. Commonwealth v. Goodwin, 458 Mass. 11, 15
(2010). Commonwealth v. Lapointe, 435 Mass. 455, 459 (2001)
(other goals include "punishment, deterrence, and retribution"
[citation omitted]).
"The success of probation as a correctional tool depends on
judges having the flexibility at sentencing to tailor probation
conditions to the circumstances of the individual defendant and
the crime that he [or she] committed." Goodwin, 458 Mass. at
16. See Lapointe, 435 Mass. at 459 (judge may consider factors
not relevant at trial, such as hearsay information about
defendant's character, behavior, and background). Authority to
tailor probation conditions is found in G. L. c. 276, § 87,
10
which states that a judge may impose "such conditions as [the
judge] deems proper." See Boston Municipal Court and District
Court Sentencing Best Practice Principles 5. See also Criminal
Sentencing in the Superior Court: Best Practices for
Individualized Evidence-Based Sentencing 8 ("Special conditions
of probation should be narrowly tailored to the criminogenic
needs of the defendant/probationer while providing for the
protection of the public and any victim").
Where, as here, addiction is an underlying issue in a
criminal case, the special conditions "may include, but shall
not be limited to, participation by [the defendant] in
rehabilitative programs." G. L. c. 276, § 87A. Indeed, in
1998, this court, in collaboration with the Trial Court, issued
standards on substance abuse. See Supreme Judicial Court
Standing Committee on Substance Abuse, Standards on Substance
Abuse (April 28, 1998) (Substance Abuse Standards). They
established a "systemwide policy designed to enhance the
judiciary's response to the impact of substance abuse on [our]
courts." Id. at 4. The standards created a framework that
would "promote public safety, provide access to treatment,
protect due process, reduce recidivism, [and] ensure offender
accountability" (emphasis added). Id. at 5. One of the
standards addressed directly the issue of requiring a defendant
to remain drug free, stating, "[O]nce [a] judge has concluded
11
that a party's substance abuse is a factor in the case, in
supervising criminal . . . cases and in establishing court
ordered substance abuse conditions, the judge should
specifically and unambiguously prohibit the party from all use
of alcohol an illicit drugs" (emphasis added). Id. at 27. The
standards also recognize that relapse is a "common" problem and
judges "should . . . employ strategies consistent with public
safety to prevent it" (emphasis added). Id. at 3.
For these reasons, judges have great latitude in imposing
conditions of probation, and those conditions are enforceable
"so long as the condition is 'reasonably related' to the goals
of sentencing and probation." Commonwealth v. Obi, 475 Mass.
541, 547 (2016), quoting Lapointe, 435 Mass. at 459. Even where
a condition of probation affects a constitutional right, it is
valid if it is "reasonably related" to the goals of sentencing
and probation, in light of the defendant's underlying crime and
her particular circumstances. See Commonwealth v. Power, 420
Mass. 410, 416-417 (1995), cert. denied, 516 U.S. 1042 (1996);
Lapointe, supra. Although random drug and alcohol testing
constitutes a search and seizure for constitutional purposes
under art. 14 of the Massachusetts Declaration of Rights, such
testing is nonetheless a permissible condition of probation so
long as it is reasonably related to legitimate probationary
goals. Commonwealth v. Gomes, 73 Mass. App. Ct. 857, 859
12
(2009). See Commonwealth v. Williams, 60 Mass. App. Ct. 331,
332-333 (2004) (alcohol-free condition of probation permissible
when reasonably related to characteristics of defendant and
underlying crime). See also Robinson v. California, 370 U.S.
660, 664,665 (1962) ("There can be no question of the authority
of the State . . . to regulate the . . . use of . . . drugs
[through, inter alia] a program of compulsory treatment for
those addicted to narcotics[,] . . . [even requiring]
involuntary confinement [and] penal sanctions for failure to
comply with established compulsory treatment procedures"
[quotations and citation omitted]).
When a defendant is released on probation, his or her
liberty interest is conditional and depends on that defendant's
compliance with the conditions imposed by the sentencing judge.
Commonwealth v. Wilcox, 446 Mass. 61, 64 (2006); Durling, 407
Mass. at 115. "If a defendant violates one or more conditions
of probation, a judge may revoke his probation and sentence him
to a term of imprisonment for his underlying conviction, or
return the defendant to probation, with new or revised
conditions." Goodwin, 458 Mass. at 15. A defendant who
violates probation is not being punished for violating a
condition of probation, but rather "the defendant is essentially
being sentenced anew on his [or her] underlying conviction."
Id. at 17.
 13
Here, the defendant pleaded guilty to larceny and admitted
that her drug use motivated her to commit the crime. The
sentencing judge imposed the special conditions that the
defendant remain drug free, continue outpatient drug treatment,
and submit to random drug screens. The conditions directly
addressed the defendant's personal circumstances and,
significantly, her stated motivation for committing the crime --
purchasing illegal drugs. See Goodwin, 458 Mass. at 16. Not
only were these conditions tailored to the characteristics of
the defendant and the underlying crime, they furthered the
rehabilitative goal of probation by facilitating treatment for
the defendant's drug addiction. These conditions also furthered
the goal of protecting the public, because each condition
addressed the fact that the defendant's drug use motivated her
to commit the crime. We note that the defendant does not claim
or point to anything in the record that shows that, before
agreeing to her probationary conditions, she objected, informed
the judge that she had been diagnosed with SUD, or otherwise
notified the judge that she would be unable to abide by the drug
free condition of probation. See Commonwealth v. Vargas, 475
Mass. 86, 93 (2016) (by agreeing to abide by probationary
condition of no marijuana use, defendant agreed to be subject to
probation revocation for noncompliance). See also Obi, 475
14
Mass. at 549 (defendant waived challenge to probationary
condition that was not raised at sentencing).
The defendant argues that because she suffers from SUD,
requiring her to remain drug free sets her up for
unconstitutional cruel and unusual punishment when the
inevitable relapse occurs. As discussed, revoking or modifying
conditions of probation is not a punishment for drug use but for
the underlying crime. See Goodwin, 458 Mass. at 17. We also
agree with the Commonwealth that the defendant's claim of SUD
rests on science that was not tested below. Nor do we agree with
the defendant that the requirement of remaining drug free is an
outdated moral judgment about an individual's addiction.
Rather, informed by the substance abuse standards discussed
supra, the requirement is based on the judge's consideration of
the defendant's circumstances and that she committed the
underlying crime to support her drug use.
The judge here did not abuse her discretion by imposing
the special condition of probation requiring the defendant to
remain drug free.
b. Probation violation proceedings. i. Detention
hearing. Where there is reason to believe that a defendant
violated a condition of probation, a probation officer may
initiate probation violation proceedings. See Rule 4(b) of the
District/Municipal Court Rules for Probation Violation
15
Proceedings (LexisNexis 2016) ("Violation proceedings shall be
commenced by the issuance by the Probation Department of a
Notice of Probation Violation and Hearing"). A detention
hearing is conducted where the probation department seeks to
have a defendant held in custody for some period of time pending
a final probation violation hearing. See Rule 5(a) of the
District/Municipal Court Rules for Probation Violation
Proceedings. The issues to be decided at the detention hearing
are "whether probable cause exists to believe that the
probationer has violated a condition of the probation order,
and, if so, whether the probationer should be held in custody."
Id. (question of revocation or other disposition not at issue).
See Commonwealth v. Puleio, 433 Mass. 39, 41 (2000) (defendant
may be held in custody pending completion of final probation
violation hearing).
Where the judge determines that the allegation is supported
by probable cause, the judge must then consider a number of
factors in determining whether the defendant should be held in
custody pending the final probation violation hearing:
"(i) the probationer's criminal record; (ii) the nature
of the offense for which the probationer is on probation;
(iii) the nature of the offense or offenses with which
the probationer is newly charged, if any; (iv) the nature
of any other pending alleged probation violations; (v)
the likelihood of [the] probationer's appearance at the
probation violation hearing if not held in custody; and
(vi) the likelihood of incarceration if a violation is
found following the probation violation hearing."
16
See Rule 5(c) of the District/Municipal Court Rules for
Probation Violation Proceedings. Much like the judge's
individualized analysis of the defendant's circumstances in
setting the terms of probation, a judge at this stage must
consider the particular circumstances facing a defendant, as
well as the safety of the public.
Trial court judges, particularly judges in the drug courts,
stand on the front lines of the opioid epidemic. Judges face
unresolved and constantly changing societal issues with little
notice and, in many situations, without the benefit of
precedential guidance. In circumstances where a defendant is
likely addicted to drugs and the violation in question arises
out of the defendant's relapse, judges are faced with difficult
decisions that are especially unpalatable. This is particularly
true at a detention hearing where a judge must decide whether
the defendant should be detained prior to a final violation
hearing. The core of this dilemma is that although probation
violations often arise out of a defendant's relapse, we
recognize that relapse is part of recovery. See Standards on
Substance Abuse, supra at 5 ("Treatment does not always work the
first or even the second time, [and] relapse should not be cause
for giving up on a substance abuser"). To achieve this delicate
balance, judges must have the authority to detain a defendant
17
facing a probation violation based on illicit drug use pending a
final violation hearing for the safety of the defendant and the
community. See Rule 5 of the District/Municipal Court Rules for
Probation Violation Proceedings. Such decisions should be made
thoughtfully and carefully, recognizing that addiction is a
status that may not be criminalized. See Robinson v.
California, 370 U.S. 660, 666 (1962) (unconstitutional to
criminalize status of addiction). But judges cannot ignore the
fact that relapse is dangerous for the person who may be in the
throes of addiction and, often times, for the community in which
that person lives.
Here, on the Friday before the Labor Day weekend, the
defendant tested positive for fentanyl. After the defendant
rejected inpatient treatment, and with her home support network
unavailable, the defendant's probation officer initiated the
probation violation proceedings and moved for a detention
hearing that day. At that hearing, the judge determined that
there was probable cause to believe the defendant had violated
the drug free condition of her probation, based on the results
of the drug test. The judge first sought to have the defendant
admitted to an inpatient treatment facility pending her final
violation hearing; however, a placement was not immediately
available. To stabilize the defendant's situation, the judge
held her in custody until a placement at an inpatient treatment
18
facility became available. This decision clearly encompassed
the factors enumerated in Rule 5(c) of the District/Municipal
Court Rules for Probation Violation Proceedings, particularly
the nature of the offense for which the defendant was on
probation and the nature of the alleged violation, while
furthering the overarching goal of preserving the safety of the
public and welfare of the defendant. The judge was faced with
either releasing the defendant and risking that she would suffer
an overdose and die, or holding her in custody until a placement
at an inpatient treatment facility became available.
The defendant claims that the judge's decision to detain
her constituted a punishment for her relapse and positive drug
test.7 We do not agree.
7 We note that neither the limited facts in this case nor
the law of the Commonwealth supports the defendant's assertions
that addiction has been criminalized or that relapse is being
punished. The case before the court is unlike Robinson v.
California, 370 U.S. 660, 665-668 (1962), where the United
States Supreme Court concluded that a statute criminalizing the
status of being "addicted to the use of narcotics" was
unconstitutional. The Court in Robinson emphasized that the
unconstitutional statute at issue did not criminalize the use of
narcotics, but rather the status of being addicted to narcotics.
Id. at 666. In contrast, here the defendant was subject to
probation revocation proceedings due to her use of an illegal
drug. Robinson is inapposite to our analysis because this case
represents an appropriate exercise of judicial power at each
stage of the probation proceedings, not the criminalization of
the defendant's status. Id. at 665 (reciting actions State may
take to regulate narcotic drugs including involuntary
confinement for compulsory treatment and penal sanctions for
failure to comply with treatment).
19
Revocation proceedings are not part of a criminal
prosecution. See Durling 407 Mass. at 112, citing Gagnon v.
Scarpelli, 411 U.S. 778, 782 (1973). The decision to hold the
defendant in custody is akin to a bail decision, and no final
determination has been made concerning whether she violated a
condition of probation. See Rule 5 of the District/Municipal
Court Rules for Probation Violation Proceedings. See also
Commonwealth v. Odoardi, 397 Mass. 28, 30 (1986) (disposition of
probation does not punish act prompting probation violation
proceedings, and arises from "underlying offense for which a
probationary sentence originally was imposed"). Moreover, here
the judge detained the defendant because a placement at an
inpatient treatment center was not available. Although we
recognize that the number of inpatient treatment placements is
limited, the resolution of that problem concerns public policy
and cannot be addressed by a judge. Detaining a defendant may
be permissible to protect the public and the defendant. See
Robinson, 370 U.S. at 667 (imprisoning person afflicted with
addiction is cruel and unusual punishment only where person
"never touched any narcotic drug within the State or been guilty
of any irregular behavior there"). The judge did not abuse her
discretion in detaining the defendant pending a probation
violation hearing.
20
ii. Probation violation hearing. Following an initial
determination at a detention hearing that there is probable
cause to believe that a condition of probation was violated, a
defendant is entitled to a final probation violation hearing to
determine whether a violation occurred, and, if so, what effect
the violation will have on his or her status. See Rule 6 of the
District/Municipal Court Rules for Probation Violation
Proceedings.
The probation violation hearing is comprised of two
distinct phases: (1) the adjudicatory phase, and (2) the
dispositional phase. See Rule 6(b) of the District/Municipal
Court Rules for Probation Violation Proceedings. See also
Commonwealth v. Joyner, 467 Mass. 176, 189-191 (2014). In the
adjudicatory phase the judge must "determine, as a factual
matter, whether the defendant has violated the conditions of his
[or her] probation." Commonwealth v. Pena, 462 Mass. 183, 187
(2012), quoting Durling, 407 Mass. at 111. "A defendant can be
found in violation of a probationary condition only where the
violation was wilful." Commonwealth v. Henry, 475 Mass. 117,
121-122 (2016). See Commonwealth v. Canadyan, 458 Mass. 574,
579 (2010) (absent evidence of wilful noncompliance, defendant
could not be found in violation of condition of probation). See
also Commonwealth v. Poirier, 458 Mass. 1014, 1016 (2010)
(defendant not responsible for inability to comply with
21
condition where probation department failed to provide needed
equipment). Further, a violation of a probationary condition
must be proved by a preponderance of the evidence. See
Commonwealth v. Holmgren, 421 Mass. 224, 227 (1995). See also
Rule 6(c) of the District/Municipal Court Rules for Probation
Violation Proceedings.
At a probation violation hearing, both parties "shall be
permitted to present evidence relevant to the issue of the
alleged violation [and] shall be permitted to cross-examine
witnesses produced by the opposing party." Id. The distinction
between the adjudicatory and dispositional phases is important
because the "factual decision that a probation violation has
occurred in no way compels an order of revocation." Rule 5 of
the District/Municipal Court Rules for Probation Violation
Proceedings comment (2000), at 80. Therefore, judges must be
precise in bifurcating the adjudicatory phase of probation
violation proceedings from the dispositional phase.
Where a violation has occurred, the judge must determine
the appropriate disposition for the defendant. See Pena, 462
Mass. at 187. See also Rule 6(b) and (d) of the
District/Municipal Court Rules for Probation Violation
Proceedings. Permissible dispositions include revoking the
defendant's probation and sentencing the defendant for the
underlying crime, modifying the terms of the defendant's
22
probation, or reprobating the defendant on the same conditions
of probation. Rules 8(d), 9(b) of the District/Municipal Court
Rules for Probation Violation Proceedings. See Pena, supra.8
The defendant, in either scenario, is not being punished for
violating the probationary condition that triggered the
revocation or modification, but rather for the original
conviction See Odoardi, 397 Mass at 30. See also Commonwealth
v. Cory, 454 Mass. 559, 564 (2009) (penalties for probation
revocation attributed to original conviction, not to probation
violation). In other words, when a defendant's probation is
revoked because he or she has "abused the opportunity given him
to avoid incarceration," Rubera v. Commonwealth, 371 Mass. 177,
181 (1976), by violating a condition of probation, the defendant
is imprisoned not for the act or acts that prompted revocation
of probation, but rather, the defendant "is being punished for
the underlying offense for which a probationary sentence
originally was imposed." Odoardi, supra.
After a violation is found, "[h]ow best to deal with the
probationer is within the judge's discretion." Durling, 407
Mass. at 111. In determining the appropriate disposition, the
8 A house of correction sentence may also be suspended. A
suspended sentence, however, limits the judge's options should
there be a violation of probation after a suspended sentence has
been imposed, because, under Commonwealth v. Holmgren, 421 Mass.
224, 228 (1995), "when probation is revoked, the original
suspended sentence must be imposed."
23
court shall consider "such factors as public safety; the
circumstances of any crime for which the probationer was placed
on probation; the nature of the probation violation; the
occurrence of any previous violations; and the impact of the
underlying crime on any person or community, as well as
mitigating factors." Rule 8(d) of the District/Municipal Court
Rules for Probation Violation Proceedings. The defendant is
entitled to show that there was a "justifiable excuse for any
violation or that revocation is not the appropriate
disposition." Pena, 462 Mass. at 188, quoting Black v. Romano,
471 U.S. 606, 611, 612 (1985). See United States v. Morin, 889
F.2d 328, 332 (1st Cir. 1989) (during second stage of probation
revocation proceeding, defendant "has the right to address the
court and present it with mitigating circumstances").
"Where a defendant has violated a condition of his [or her]
probation, a judge's authority to modify or add conditions of
probation is nearly unlimited should the judge decide not to
imprison the defendant but to return him [or her] to probation."
Goodwin, 458 Mass. at 17. At the dispositional phase, a judge's
decision to modify the defendant's probation following a
violation must consider both the welfare of the defendant and
the community. Id. at 16, quoting Buckley v. Quincy Div. of the
Dist. Court Dep't, 395 Mass. 815, 818 (1985). Where probation
is modified, the defendant is essentially being resentenced on
24
his or her underlying conviction, and the judge may impose any
conditions of probation that could have been imposed at the
original sentencing. Goodwin, supra at 17.
The defendant contends that the District Court judge erred
in finding that she violated the drug free condition of her
probation because the violation was not wilful. In the
defendant's view, her purported inability to refrain from using
drugs is tantamount to a homeless probationer not being able to
comply with a condition of probation because of the
circumstances inherent in that homelessness. Canadyan, 458
Mass. at 579. In Canadyan, we concluded that the defendant did
not commit a wilful violation of probation for failing to wear
an operable global positioning system (GPS) monitoring device
because the evidence conclusively established that the defendant
was homeless and that the homeless shelter he was staying at
could not accommodate the technological requirements of the GPS
equipment. Id. at 578-579. Therefore, "there was no evidence
of wilful noncompliance." Id. at 579. Accord Henry, 475 Mass.
at 121-122 (no wilful violation of condition of probation
requiring payment of restitution where defendant lacked ability
to pay); Poirier, 458 Mass. at 1016 (no wilful violation of
condition of probation requiring defendant to wear GPS device
where probation department did not have such device available).
25
Although the appellate record before this court is
inadequate to determine whether SUD affects the brain in such a
way that certain individuals cannot control their drug use,
based on the evidence presented to the judge who conducted the
violation hearing, that judge did not abuse her discretion in
concluding that there was a wilful violation of the defendant's
drug free probationary condition. The affidavits submitted by
the defendant in support of her position that her violation was
not wilful because SUD affects the brain in such a way that
certain individuals cannot control their drug use did not
require the judge to accept her argument. We conclude that,
based on the evidence presented at the violation hearing, the
judge did not err in concluding that the defendant violated the
drug free condition of her probation by testing positive for
fentanyl.
After determining that the defendant violated the
conditions of her probation, the judge had the authority either
to revoke the defendant's probation, reprobate her on the same
conditions, or modify her probationary conditions to further the
welfare of both her and the public. See Goodwin, 458 Mass. at
17. The judge chose to modify the defendant's probation,
requiring that she continue inpatient treatment. This
modification furthered the rehabilitative goal of probation and
demonstrated that the judge was not discounting the defendant's
26
addiction. The defendant does not challenge this condition on
appeal. Furthermore, this was not punishment for the
defendant's positive drug test, rather the defendant was being
reprobated on her original admission to sufficient facts. See
id. at 17. Accordingly, we conclude that the judge did not
abuse her discretion in modifying the defendant's probation to
require inpatient treatment and that it was permissible in these
circumstances to detain the defendant until an inpatient bed was
available.
Conclusion. We conclude that, based on the evidence
presented at each stage of the probation process and for the
reasons described above, the judge did not abuse her discretion
in concluding the defendant violated her probation. We further
answer the reported question, as we have reframed it, in the
affirmative: (1) where a person who commits a crime is addicted
to illegal drugs, a judge may require that person to remain drug
free as a condition of probation; (2) a person may be subject to
probation violation proceedings for violating the drug free
condition of probation by subsequently testing positive for
illegal drugs; and (3) in the appropriate circumstances, a judge
has discretion at a detention hearing to hold the defendant, who
has tested positive for illegal drugs in violation of the drug
free condition of probation, pending a probation violation
hearing. We further conclude that the actions of the District
27
Court judges and the probation department involved in this case
were exemplary. They embodied the flexibility, sensitivity, and
thoughtfulness in furtherance of the overarching goal of
probation -- to rehabilitate rather than incarcerate whenever
possible, while fulfilling their duty to protect the public.
See Goodwin, 458 Mass. at 15.
Accordingly, we affirm the judge's finding that the
defendant violated her probation and the order requiring her to
submit to inpatient treatment for her addiction.
So ordered.