Commonwealth v. Plasse , 481 Mass. 199 ( 2019 )

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SJC-12486
COMMONWEALTH vs. CAYLA S. PLASSE.
Franklin. September 6, 2018. - January 10, 2019.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, &
Kafker, JJ.
Practice, Criminal, Sentence, Probation, Revocation of
probation, Judicial discretion.
Complaint received and sworn to in the Orange Division of
the District Court Department on September 26, 2013.
A motion for release from unlawful restraint and for a new
sentencing hearing, filed on March 31, 2017, was heard by David
S. Ross, J.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Edward Gauthier for the defendant.
Thomas H. Townsend, Assistant District Attorney, for the
Commonwealth.
Lisa Newman-Polk, for Committee for Public Counsel Services
& others, amici curiae, submitted a brief.
LENK, J. "Few, perhaps no, judicial responsibilities are
more difficult than sentencing. The task is usually undertaken
2
by trial judges who seek with diligence and professionalism to
take account of the human existence of the offender and the just
demands of a wronged society." Commonwealth v. Rodriguez, 461
Mass. 256, 259 (2012), quoting Graham v. Florida, 560 U.S. 48,
77 (2010). While the exercise of this "quintessential judicial
power" is never an easy task, Rodriguez, supra at 266, it is
made all the more difficult when the crime and subsequent
noncompliance with probation are related to the effects of drug
addiction.
The issue here arises from the judge's imposition of a
sentence of incarceration following the defendant's repeated
addiction-related violations of probation over a period of
several years. The defendant requested the sentence in order to
participate in a secure residential drug treatment program, but,
after several months of serving her sentence, sought release
from the alleged unlawful restraint, as well as a new sentencing
hearing. She now appeals from the denial of the motion she
filed pursuant to Mass. R. Crim. P. 30, as appearing in 435
Mass. 1501 (2001); the defendant contends that the judge erred
in considering the rehabilitation program when setting the
length of her sentence of incarceration. We conclude that in
3
the circumstances presented, the judge did not abuse his
discretion.1
1. Background. a. Initial disposition. In August 2013,
the defendant stole items valued at more than $250 from a chain
department store. A complaint issued approximately one month
later charging her with larceny, in violation of G. L. c. 266,
§ 30 (1), and with using disguises to obstruct execution of the
law, in violation of G. L. c. 268, § 34. At a plea colloquy,
the defendant admitted to sufficient facts to warrant a finding
of guilt with respect to the larceny charge.2 The judge then
continued the matter without a finding for one year, from
December 2013 through December 2014. Upon the successful
completion of the one-year period of probation, the charge was
to be dismissed.3
1 We acknowledge the amicus brief of the Committee for
Public Counsel Services; the American Academy of Addiction
Psychiatry; the American Civil Liberties Union of Massachusetts,
Inc.; the Association for Behavioral Healthcare; the Center for
Prisoner Health and Human Rights; the Center for Public
Representation; the Grayken Center for Addiction Medicine at
Boston Medical Center; the Massachusetts Association of Criminal
Defense Lawyers; the Massachusetts Society of Addiction
Medicine; and Prisoners' Legal Services.
2 The prosecutor dismissed the charge of obstruction.
3 In a disposition of a continuance without a finding, a
defendant admits to sufficient facts that the offense occurred
as charged, but the judge does not enter a finding of guilt.
Instead, the matter is continued to a specific date, whereupon
it is dismissed if the imposed conditions have been met. See
4
At that time, the defendant was twenty-one years old. The
continuance was conditioned on the successful completion of two
programs: "Stoplift," an Internet-based program designed to
prevent shoplifting recidivism, and a program involving
intensive supervision by the probation service known as level
three "community corrections." The latter includes office
visits, group meetings, and drug and alcohol screenings.
b. Probationary violations. We summarize the course of
the probationary violations over the next three years as
follows.
In January 2014, one month after the initial continuance
was imposed, the probation service filed its first notice of
violation.4 The notice related to the defendant's noncompliance
G. L. c. 278, § 18. If the defendant is found to have violated
the conditions imposed in an order of probation, the judge may
convert the continuance to a guilty plea and sentence the
defendant accordingly. Id. See Commonwealth v. Sebastian S.,
444 Mass. 306, 315 (2005).
4 Where there is reason to believe that a defendant has
violated a condition of probation, a probation officer may
initiate probation violation proceedings by filing a "Notice of
Probation Violation and Hearing." See Rule 4(b) of the
District/Municipal Court Rules for Probation Violation
Proceedings, Massachusetts Rules of Court, at 644 (Thomson
Reuters 2018). At a preliminary detention hearing, a judge
determines 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
pending a final violation hearing. See Rule 5 of the
District/Municipal Court Rules for Probation Violation
Proceedings, supra at 645-646. At a final violation hearing,
5
with the requirements of the community corrections program and
her failure to pay court-ordered fees. A second notice of
violation was filed in March 2014, following a drug screening in
which the defendant tested positive for the presence of
tetrahydrocannabinol (THC). At a hearing concerning both of
these violations, the defendant, represented by counsel,
stipulated to the underlying facts. The defendant was found in
violation of the terms of probation and reprobated, and the
continuance -- as it was initially imposed -- remained in
effect.
In April 2014, the defendant reported to the probation
service and her drug screen returned a positive result for the
presence of THC and cocaine. Approximately one week later, the
defendant again tested positive for the presence of THC and
cocaine, as well as for amphetamine and morphine. The probation
service filed its third and fourth notices of violation.
Counsel was appointed, and the defendant was held pending a
final violation hearing. At the final violation hearing in May
2014, the judge again found the defendant in violation of the
terms of probation. This time, he modified the terms of
the judge determines whether, by a preponderance of the
evidence, the defendant violated the terms of probation and, if
so, what the appropriate disposition should be. See Rule 8 of
the District/Municipal Court Rules for Probation Violation
Proceedings, supra at 653.
6
probation, requiring a substance abuse evaluation, a mental
health evaluation, that the defendant remain drug and alcohol
free,5 and that she participate in a residential treatment
program. The judge also extended the probationary period until
May 2015. The defendant subsequently entered into the specified
drug treatment program.
In October 2014, a warrant issued for the defendant's
arrest when the probation officer became aware that she had left
the court-ordered residential treatment program without
authorization. The defendant was brought into court, at which
time her drug screening results again were positive. She was
found in violation, and was reprobated, without any further
modification of the length or terms of probation.
In November 2014, another warrant was issued for the
defendant's arrest, due to her failure to report to her
probation officer on two occasions. The warrant remained
outstanding until she came to court one month later, when she
tested positive for the presence of cocaine and THC. Following
a hearing in December 2014, the judge found the defendant in
violation, reprobated her, and amended the conditions of
probation for a second time, to require that the defendant
5 The requirement that the defendant remain drug and alcohol
free was implicit in the Community Corrections level three
program, which includes mandatory drug and alcohol screenings.
7
complete a different residential drug treatment program. He
also extended the defendant's term of probation until December
2015. The defendant was held in custody for several weeks until
a bed became available in that program.
In January 2015, the defendant entered the second
residential treatment program and remained there for
approximately three months before transitioning to a sober
living program. She was expelled from the sober living house
shortly thereafter, as a result of using drugs. The defendant
failed to report to the probation service as required, and
another warrant was issued for her arrest.
At a July 2015 hearing, the judge found the defendant in
violation of the terms of her probation. He again modified the
terms of probation to require the defendant to reside at a third
residential drug treatment program. The defendant entered that
program, but later was asked to leave because of drug use. A
warrant again issued for the defendant's arrest. She ceased
contact with her probation officer, and with the court, for the
next thirteen months.
The defendant eventually telephoned her mother, who had
been actively coordinating with her probation officer in an
attempt to locate the defendant throughout the prior year. The
defendant reported to her mother that her drug use had spiraled
8
out of control and that she had "hit rock bottom." In October
2016, police officers located and arrested the defendant.
As of the time of the October 2016 hearing, the defendant
had been in violation of the terms of her probation during most
of the three years of the repeatedly extended continuance. The
probation service requested that the judge vacate the
continuance and enter a finding of guilt, revoke the defendant's
probation, and sentence her to a term of incarceration of
eighteen months. Her probation officer reported that the
defendant's family agreed that she was in "great need for
treatment," in addition to needing to be held accountable for
her crime.
Defense counsel represented that the defendant agreed she
was "not a good candidate for probation," and that she needed a
more structured environment in which to obtain treatment.
Counsel therefore requested that the defendant be sentenced to a
term of incarceration of "at least nine months," a period of
time that he stated was sufficient for her to be assigned to,
and then complete, the structured and intensive treatment
program known as "Howard Street."6
6 "Howard Street" refers to a secure residential treatment
program at a facility in Hampden County run by the sheriff's
department. The facility has since moved locations and is now
known as the Western Massachusetts Recovery and Wellness Center.
It is designed to provide for the custody, care, and treatment
of substance abusers.
9
Noting the defendant's failure to complete several
residential treatment programs and his concern that many in her
position "don't make it," the judge concluded that the defendant
presented one of the rare cases in which all efforts at
rehabilitation, other than incarceration, had been unsuccessful.
He stated that a sentence of incarceration would be imposed "not
to punish [the defendant] but to make sure that she gets through
a program and is back out on the street safe and alive."
Consequently, the judge revoked the defendant's probation and
sentenced her to two years' incarceration in a house of
correction for the underlying offense, pursuant to G. L. c. 266,
§ 30 (1). In calculating the length of the sentence, the judge
noted that the defendant would be credited with two months of
"time served," took into account the potential "good time"
credits that she could earn toward early release, and considered
her eligibility for parole after serving one-half of the
sentence. In doing so, he appeared to have reasoned that the
defendant would serve approximately nine to ten months of the
two-year sentence, a period of time adequate to complete the
program that the defendant had requested.
Months later, represented by new counsel, the defendant
sought release from the alleged unlawful restraint, as well as a
new sentencing hearing pursuant to Mass. R. Crim. P. 30. She
argued that the judge had erred in considering rehabilitative
10
programming in determining the appropriate length of
incarceration. The motion was denied. The defendant appealed,
and we transferred the case from the Appeals Court to this court
on our own motion.7
2. Discussion. a. Standard of review. We review the
denial of a motion under Mass. R. Crim. P. 30 for abuse of
discretion or error of law. See Commonwealth v. Perez, 477
Mass. 677, 681-682 (2017). See also Commonwealth v. Perez, 480
Mass. 562, 567 (2018). "Under that standard, the issue is
whether the judge's decision resulted from '"a clear error of
judgment in weighing" the factors relevant to the decision . . .
such that the decision falls outside the range of reasonable
alternatives.'" Perez, supra at 682, quoting L.L. v.
Commonwealth, 470 Mass. 169, 185 n.27 (2014).8
b. Probation revocation. When a sentencing judge, after
sufficient facts have been admitted, terminates a continuance,
7 The defendant is no longer incarcerated, rendering moot
her challenge to the order denying the motion for a new sentence
and release from unlawful confinement. See Acting Supt. of
Bournewood Hosp. v. Baker, 431 Mass. 101, 103 (2000).
Nonetheless, we decide the case because it raises important
issues concerning proper sentencing considerations that are
likely to recur in similar circumstances, but to evade review.
See id.
8 To the extent that the defendant also moved for a new
sentencing hearing pursuant to Mass. R. Crim. P. 30 (b), the
decision to allow such a motion is similarly left "to the sound
discretion of the judge." See Commonwealth v. Scott, 467 Mass.
336, 344 (2014).
11
revokes probation, and enters a guilty finding, the judge is
permitted to impose "a sentence or other disposition as provided
by law." See Rule 9(b) of the District/Municipal Court Rules
for Probation Violation Proceedings, Massachusetts Rules of
Court, at 655 (Thomson Reuters 2018) (noting dispositional
options available to judge following violation of conditions
associated with continuance). See also Commonwealth v.
Villalobos, 437 Mass. 797, 801 (2002) (when defendant admits to
sufficient facts for purposes of continuance, violation "may
lead to . . . an immediate conviction and sentence . . . during
the continuance period"). When a violation occurs and a
defendant's probation is revoked because the defendant has
"abused the opportunity" offered to avoid incarceration in the
first instance, the defendant is imprisoned not for the
violations that prompted revocation of probation, but, rather,
"the defendant is essentially being sentenced anew on his [or
her] underlying conviction" (citations omitted). See
Commonwealth v. Eldred, 480 Mass. 90, 97, 102 (2018).
Here, the defendant does not challenge that a term of
incarceration appropriately was imposed, or that the sentence
fell within the legal limits prescribed by the statute pursuant
to which she had been convicted. Rather, her challenge is to
the factors considered by the judge in fashioning that sentence.
She contends that, in setting the length of her sentence, the
12
judge abused his discretion when he took into account the time
requirements of a rehabilitative program she wished to enter and
had urged upon him. We discern no abuse of discretion in these
limited circumstances.
c. Sentencing considerations. We have long held that "[a]
judge has considerable latitude within the framework of the
applicable statute to determine the appropriate individualized
sentence." Commonwealth v. Goodwin, 414 Mass. 88, 92 (1993),
citing Commonwealth v. Celeste, 358 Mass. 307, 309-310 (1970).
"That sentence should reflect the judge's careful assessment of
several goals: punishment, deterrence, protection of the
public, and rehabilitation." Goodwin, supra. In determining
the extent to which a particular sentence will facilitate these
goals, a sentencing judge is tasked with weighing "various,
often competing, considerations." Rodriguez, 461 Mass. at 259.
Those considerations include, among others, the circumstances of
the crime, the role of the defendant in the crime, the need for
deterrence, the defendant's risk of recidivism, and the extent
to which a particular sentence will increase or diminish the
risk of recidivism. See id., and cases cited. Thus, in order
"to impose a just sentence, a judge requires not only sound
judgment" but also information concerning, among other factors,
the defendant's "criminal and personal history." See id.
13
In fashioning an appropriate and individualized sentence
that takes account of a defendant's personal history, a judge
has discretion to weigh "many factors which would not be
relevant at trial," including the defendant's behavior,
background, family life, character, history, and employment.
See Commonwealth v. Mills, 436 Mass. 387, 399-400 (2002);
Goodwin, 414 Mass. at 92, citing Celeste, 358 Mass. at 310. See
also Commonwealth v. White, 436 Mass. 340, 343 (2002) (judge may
consider such factors in assessing defendant's "propensity for
rehabilitation"). Taking into account a defendant's substance
abuse issues may be part of this calculus. See Commonwealth v.
Healy, 452 Mass. 510, 515 (2008) (judge had discretion to
consider defendant's alcohol use problem during sentencing).
See also Sentencing Commission, Advisory Sentencing Guidelines,
at 27 (Nov. 2017) ("[a] just system of punishment" is one that
"provides the defendant with treatment for mental, emotional,
psychological, or physical conditions, including substance
abuse, as needed"). In circumstances in which a defendant
specifically requests a judge's consideration of his or her
substance abuse issues and related need to complete a
rehabilitative program while incarcerated, the judge may take
these factors into account. See Lannon v. Commonwealth, 379
Mass. 786, 792-793 (1980) (defendant cannot challenge on appeal
proposal that own counsel offered).
14
A judge's discretion to consider external factors, however,
is not unlimited. Indeed, "[i]t is of paramount importance that
justice be administered impartially, based solely on relevant
criteria for sentencing." See Mills, 436 Mass. at 401. For
example, a sentencing judge may not punish a defendant for an
untried criminal offense, Commonwealth v. Souza, 390 Mass. 813,
817 (1984); rely on inaccurate or misleading information in
sentencing, Commonwealth v. LeBlanc, 370 Mass. 217, 221 (1976);
or punish a defendant to direct a personal message of deterrence
to a particular community, Commonwealth v. Howard, 42 Mass. App.
Ct. 322, 327-328 (1997).
The judge here expressed no personal or private beliefs
regarding the defendant's history that appeared to "interfere
with his judicial role and transform it from that of impartial
arbiter." Cf. Mills, 436 Mass. at 401. Nor did he make remarks
indicating that he was punishing the defendant for conduct
"other than that for which the defendant [stood] convicted"
(citation omitted). Cf. White, 436 Mass. at 341-342. As part
of his sentencing considerations, the judge took into account
the defendant's request to participate in a particular
rehabilitation program while incarcerated, as well as the actual
amount of time that she would be required to serve in order to
15
complete that program.9 We discern no abuse of discretion in
considering those programmatic time constraints, among various
other factors, when fashioning her sentence in the circumstances
here.10
Indeed, after the defendant's failure to make use of the
opportunity to avoid incarceration while on probation, the judge
sought to maintain an appropriate balance between the
defendant's individualized needs and those of the community in
which she resides. See Eldred, 480 Mass. at 103. In so doing,
he considered permissible factors, such as the defendant's
history, behavior, and propensity for rehabilitation while on
probation. See, e.g., White, 436 Mass. at 343; Commonwealth v.
Doucette, 81 Mass. App. Ct. 740, 744 (2012).11 Because nothing
9 The judge gave no indication that he otherwise would have
imposed a shorter sentence if it were not for the programmatic
time constraints.
10The judge, of course, could only recommend that the
defendant be allowed to participate in the Howard Street
program; the power and responsibility of implementing a sentence
reside with the sheriff's department. See Commonwealth v. Cole,
468 Mass. 294, 302 (2014). Similarly, parole eligibility and
good time credits are not within a judge's purview. It appears
that, given the judge's apparent familiarity with the area, the
available programs, and the sheriff's practices, there was
likely reason for those involved to think his recommendation as
to the Howard Street program would carry significant weight.
11As our cases have long made clear, rehabilitation remains
an important interest served by sentencing. See, e.g.,
Commonwealth v. White, 436 Mass. 340, 343 (2002); Commonwealth
v. Coleman, 390 Mass. 797, 805 (1984).
16
in our common law precludes a sentencing judge from considering
a defendant's amenability to rehabilitative programming in
imposing a sentence of incarceration expressly permitted by
statute, we cannot conclude that the judge exhibited a "clear
error of judgment" such that his decision fell "outside the
range of reasonable alternatives" here (citation omitted). See
Perez, 477 Mass. at 681-682.
That being said, we emphasize that, while we discern no
abuse of discretion in this case, it is because of the unusual
context in which the challenged sentencing decision was made.
The approach taken here, over a three-year period, consistently
embodied the recognition that incarceration is not the preferred
means of achieving rehabilitation, at least for those whose
minor, nonviolent crimes are related to the effects of substance
abuse. See, e.g., Deputy Chief Counsel for the Pub. Defender
Div. of the Comm. for Pub. Counsel Servs. v. Acting First
Justice of the Lowell Div. of the Dist. Court Dep't, 477 Mass.
178, 179 (2017) (in drug courts, judge "impose[s] probation to
accommodate a need for treatment rather than a sentence of
incarceration"); Department of Correction, FY16 Gap Analysis
Report, at 3 (Oct. 2017) (noting that forty-one per cent of
eligible individuals did not complete or participate in drug and
alcohol programming in jails and prisons, and thirty-two per
cent had no access to such programming). At the same time, all
17
else had failed; both the defendant's family and the defendant
herself acknowledged the need for incarceration; the defendant
requested to participate, while incarcerated, in a particular
program; and the judge considered that request, along with other
factors, when determining the length of her committed sentence.
Had the constellation of circumstances been otherwise, so might
the result.12
d. Federal approach. Acknowledging that there is no
existing jurisprudence in the Commonwealth that precludes a
sentencing judge from considering a defendant's need for
rehabilitation in imposing a sentence of incarceration, the
defendant urges us to adopt the Federal approach. See Tapia v.
United States, 564 U.S. 319 (2011). In Tapia, the United States
Supreme Court relied upon express language in the Federal
Sentencing Reform Act that directs a Federal judge, when
sentencing, to recognize that "imprisonment is not an
appropriate means of promoting correction and rehabilitation."
12By way of example, even if an imposed sentence is within
the statutory limits and thus legal, we would not be sanguine
about sentencing practices for the same underlying crime if,
following the substance-abuse-related revocation of probation,
the imposed sentence were harsher than it would have been
following the revocation of probation due to other causes.
Moreover, when determining the length of a committed sentence, a
judge's consideration of the time requirements of a
rehabilitation program that the defendant has not voluntarily
requested, but that the judge mandates, is a practice fraught
with peril and generally best avoided.
18
Id. at 326, citing 18 U.S.C. § 3582(a). In interpreting this
provision, the Court held that, although a Federal judge at
sentencing may discuss the opportunities for rehabilitation
within prison, the judge may not impose or lengthen a term of
incarceration solely to ensure that a defendant completes
rehabilitative programming. See id. at 332.
The defendant does not point to, and we are unaware of, any
controlling Massachusetts authority that would prohibit a State
trial court judge from considering rehabilitation in imposing a
term of incarceration explicitly permitted by the language of
the criminal statute pursuant to which she was convicted. As
discussed, in Massachusetts, "it is a rare sentence, whether or
not jail is a part of it, that does not in fact involve . . .
rehabilitation." Commonwealth v. Power, 420 Mass. 410, 415
(1995), cert. denied, 516 U.S. 1042 (1996), quoting United
States v. Tolla, 781 F.2d 29, 35 (2d Cir. 1986). Thus, as Tapia
concerned the interpretation of a Federal statute for which
Massachusetts has no analog, we decline to adopt its approach
today.13
13Other State courts similarly have rejected arguments that
they adopt the reasoning in Tapia v. United States, 564 U.S. 319
(2011), also on the ground that Tapia relies exclusively on the
interpretation of Federal law. See, e.g., Knox v. State, 122
A.3d 1289 (Del. 2015) (unpublished); State v. Baker, 153 Idaho
692, 699 n.2 (Ct. App. 2012). But see State v. Jepsen, 907
N.W.2d 495, 510 (Iowa 2018) (Zager, J., dissenting) (citing
19
3. Conclusion. "Trial court judges, particularly judges
in the drug courts, stand on the front lines of the opioid
epidemic." See Eldred, 480 Mass. at 99. Here, as in Eldred,
the defendant's underlying crime is substance abuse related, the
probation violations are substance abuse related, and the
relapses associated with those violations may themselves be part
of the recovery process. See id. Mindful that judges are to
steer carefully between Scylla and Charybdis when sentencing
such individuals, and that sentencing decisions are bounded by
limits, we are of the view that, given all of the circumstances
present here, the judge did not exceed those limits.
The order denying the motion for release from unlawful
confinement and for a new sentencing hearing is affirmed.
So ordered.
Tapia, in context of double jeopardy challenge, for proposition
that imprisonment is inappropriate for rehabilitation as
compared to probation).