Supreme Judicial Court (September 28, 2010)

A probationer is entitled to effective assistance of counsel at a probation violation hearing if his liberty is palpably at risk, or, alternatively, in all District Court cases.

A motion for a new trial under Mass. R. Crim. P. 30(b) is the proper means to raise a claim of ineffective assistance of counsel at a probation violation hearing.

The defendant was on probation with a condition that he not violate any criminal law. He received a probation violation hearing notice that alleged he violated his probation by committing the crime of indecent assault and battery on a child. After a hearing where the defendant was represented by appointed counsel, the defendant's probation was revoked and he was sentenced to a term of incarceration. Represented by new counsel on appeal, the defendant filed a motion under Mass. R. Crim. P. 30(b), arguing that trial counsel was ineffective for failing to file a notice of appeal, that the evidence at his revocation hearing was insufficient to support a finding that he violated his probation, and that rule 30 is his only recourse for appeal.

The principal evidence at the probation violation hearing was a videotaped SAIN interview of the four year old victim who subsequently recanted. The hearing judge did not find the evidence of recantation credible, and the defendant's probation was revoked. Thereafter, the complaint for indecent assault and battery on a child was nolle prossed, and defense counsel filed a motion to reconsider the sentence imposed at the probation hearing. The motion was denied and counsel filed notice of appeal. In the meantime, CPCS appointed new counsel to represent the defendant in his appeal. Appellate counsel filed a motion to dismiss the appeal as untimely, and the appeal was dismissed "with prejudice." Appellate counsel filed a motion for a new hearing pursuant to rule 30(b) arguing that counsel was ineffective for failing to file a timely notice of appeal and motion for reconsideration, and that the evidence was insufficient to find that the probationer committed an indecent assault and battery on a child. The motion was denied and the defendant filed an appeal.

The SJC transferred the case on its own motion and determined that a probationer is entitled to effective assistance of counsel at a probation violation hearing, and that rule 30(b) is the proper procedure to raise such a claim. The Court concluded that the evidence in this case was sufficient to support the finding that the defendant violated the terms of his probation.

The Court determined that the right to counsel includes the right to effective assistance of counsel "in a proceeding that involves a person's liberty or a fundamental liberty interest." Furthermore, a motion for a new trial, pursuant to rule 30(b), is the appropriate means to question the effectiveness of counsel. The Court reasoned that Rule 30(b), used in the context of criminal appeals lost due to counsel's ineffectiveness, should apply in the similar context of a probation revocation. Finally, the Court found that the SAIN interview videotape was substantially reliable hearsay, which is admissible at probation violation hearings, and affirmed the denial of the defendant's motion for a new hearing.