Appeals Court (April 17, 2008)
A probation condition that imposes no contact with the victim may still be the basis for a probation revocation if the defendant contacts the victim while incarcerated even if the condition is not set to commence until after the defendant is released.
The defendant plead 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.
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 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 defendant appealed.
The Appeals Court rejected the defendant's argument as well. There is nothing in the law that would preclude a judge from revoking a probationary term for a violation of its conditions after its imposition but prior to its commencement. In other words, any conduct by a person on probation which constitutes a violation of any of the conditions may form the basis for probation revocation. The Court concluded that the no contact prohibition was of such immediate effect, so as to be active and binding over the defendant both during incarceration and continuing through the from and after probationary period. "[G]iving immediate effect to the no contact probationary conditions is necessary to achieve the purpose of the conditions themselves as imposed by the sentencing judge - - to protect the victim from the defendant's harassing contact."