Supreme Judicial Court (April 4, 2011)

Although, in this case, no due process violation was found for placing a non-citizen defendant on supervised probation when he intended to leave the country, a program of probation that includes standard "supervised release" is not feasible if a defendant alien is forced by the Federal government to leave the United States on his release from State custody.

When deportation or voluntary departure is anticipated prior to sentencing, the probation contract should indicate that probation will be terminated (or modified to include conditions consistent with living abroad) if the probationer is required to leave the country.

The defendant, a Saudi Arabian national, pleaded guilty to misdemeanor motor vehicle homicide and was sentenced by a judge to one year in the house of correction followed by two years' probation. At the time of his plea, the defendant notified both the Commonwealth and the court that he intended to seek permission to "voluntarily depart" the United States when he was released from incarceration. Despite the defendant's intentions to leave, supervised conditions of probation were imposed, including some with which the defendant could comply such as paying fees, and others with which he not comply if he was not in the United States, such as seeking permission to leave the Commonwealth.

Pursuant to an arrangement with Federal immigration officials, the defendant was permitted to depart the United States voluntarily. Immediately upon his release from the house of correction, he was transported to the airport under Federal custody and left the country. He has not returned to the United States. The defendant did not comply with the conditions of his probation.

Almost two years later, the probation department filed a notice of surrender based on the defendant's failure to pay fees, verify his address and employment, and report to the department upon his release. After a hearing at which the defendant's attorney conceded the violations of probation, the judge denied the defendant's motion to terminate his probation and allowed the department's motion to issue a default warrant for the defendant's arrest.

The defendant appealed arguing that the judge's order and the issuance of the default warrant violated his due process rights. He contends that, although the Commonwealth knew at the time of the plea agreement that he intended to depart, and knew in advance of his release that he would be departing, it failed to modify probation conditions that were clearly inconsistent with his departure. The Supreme Judicial Court transferred the case on its own motion. The Court pointed out that the defendant's appeal was untimely because a defendant is only entitled to challenge such a finding on appeal from a final judgment, which had not yet happened in this case. Albeit, the Court found it appropriate to decide the merits of this case because "the issue of applicability of probation conditions to deportees is a matter likely to arise in the future in other cases."

"In this case, the motion judge's order and issuance of a default warrant, based on a preliminary finding of specific and limited violations of probation, does not rise to the level of a due process violation. Nothing in our case law … suggests that a probation contract is voided in its entirety by a forced departure; if the defendant had any doubt on that point, he had abundant opportunity to inquire. The Commonwealth does not have a duty to correct a probationer's unwarranted misconceptions regarding his probation conditions." The Court affirmed the order denying the defendant's motion to dismiss probation and the order granting the probation department's motion for the issuance of a default warrant.

However, although no due process violation was found in this case, the Court noted that "[a] program of probation that includes standard "supervised release" is not feasible if a defendant alien is forced by the Federal government to leave the United States on his release from State custody. When deportation or voluntary departure is anticipated prior to sentencing, the probation contract should indicate that probation will be terminated (or modified to include conditions consistent with living abroad) if the probationer is required to leave the country."