Supreme Judicial Court (March 31, 2009)

Probation conditions may be enforced during a defendant's incarceration provided that the defendant had fair notice that the conditions were in effect.

The defendant pled guilty to seven indictments, including rape, that arose out of two separate life-threatening attacks upon the victim, a woman the defendant had a longstanding relationship with, and with whom the defendant shared a child. The Court sentenced the defendant to a term of imprisonment, to be followed by a period of probation. The written terms of probation, which the defendant signed at sentencing, included a stipulation that he have no contact with the victim, among other conditions.

While the defendant was incarcerated, he sent four frightening letters to the victim. The probation office issued a probation revocation notice to the defendant and a revocation hearing was held. The defendant admitted that he sent the letters. However, the defendant argued that he was not given fair warning or clear notice that any condition of his probation, including the condition that prohibited him from contacting the victim, were in effect while he was incarcerated. He argued that the "no contact" probationary conditions were not in effect during his incarceration, but were to run "from and after" his years in jail. The Superior Court rejected this argument and the defendant was sentenced to an additional term of incarceration. The Appeals Court affirmed. The defendant appealed, and the SJC reversed.

The SJC held that the principles of due process apply to probation revocation proceedings and where a defendant is sentenced to both incarceration and probation, probation typically begins on the defendant's release from incarceration. In this case, the defendant had no notice that any of his probation conditions were in effect during his incarceration since many of the conditions could not even apply during the defendant's term of incarceration (i.e., that the defendant report to probation "immediately upon release," that he not "reside in the same house or apartment with the victim unless approved by the court," etc.) While a judge "is not barred from placing a defendant on probation during the period of his incarceration," there must be evidence that the judge in fact did so. That was not done in this case.

The SJC stated that the Commonwealth may act to prevent an incarcerated criminal from contacting his victim by "request[ing] that a sentence of probation run concurrently with the defendant's term of incarceration. . . . Thus the terms of probation [would] state explicitly - as they did not do so here - that probation and some or all of its attendant conditions are to commence during the period of incarceration."