District/Municipal Courts Rules for Probation Violation Proceedings  Rule 8: Finding and disposition

Upon the completion of the presentation of evidence and closing arguments on the issue of whether the probationer has violated one or more conditions of a probation order, as alleged, the court shall make a determination of that issue. The court shall decide the matter promptly and shall not continue the proceeding generally. 

If the court determines that probation has failed to prove by a preponderance of the evidence that the probationer committed a violation alleged in the notice of violation, the court shall expressly so find and the finding shall be entered on the record. 

If the court determines that probation has proved by a preponderance of the evidence that the probationer has violated a condition of probation as alleged in the notice of violation, or if the probationer waives the hearing and admits such violation and the court accepts such admission in accordance with Rule 6(g), the court shall expressly so find, and such finding shall be entered on the record. In a contested proceeding, the court shall make written findings of fact to support the finding of violation, stating the evidence upon which the court relied. A finding of violation based on an admission may be recorded as such. 

After the court has entered a finding that a violation of probation has occurred, the court may order any of the following dispositions set forth below, as it deems appropriate. These dispositional alternatives shall be the exclusive options available to the court. The court shall proceed to determine disposition promptly following the entry of a finding of violation. General continuances are prohibited. Awaiting the disposition of an underlying criminal charge shall not constitute such good cause for any continuance. In determining its disposition, the court shall give such weight as it may deem appropriate to the recommendation of the Probation Department, the probationer, and the District Attorney, if any, and to such factors as public safety; the circumstances of any crime for which the probationer was placed on probation; the nature of the probation violation; the occurrence of any previous violations; and the impact of the underlying crime on any person or community, as well as any .mitigating factors. 

(i) Continuance of probation

The court may decline to modify or revoke probation and, instead, issue to the probationer such admonition or instruction as it may deem appropriate. 

(ii) Termination

The court may terminate the probation order. 

(iii) Modification

The court may modify the conditions of probation. Such modification may include the addition of reasonable conditions and the extension of the duration of the probation order. 

(iv) Revocation, statement of reasons

The court may order that the order of probation be revoked. If the court orders revocation, it shall state the reasons therefor in writing. 

Upon revocation of a probation order, any sentence that was imposed for the crime involved, the execution of which was suspended, shall be ordered executed forthwith; provided, however, that such execution maybe stayed (1) pending appeal in accordance with Mass. R. Crim. P. 31, or (2) at the court's discretion, and upon the probationer's motion, to provide a brief period of time for the probationer to attend to personal matters prior to commencement of a sentence of incarceration. The execution of such sentence shall not be otherwise stayed. 

Upon revocation of probation in a case where no sentence was imposed following conviction, the court shall impose a sentence or other disposition as provided by law.

(2015)

Section (c) differs from its antecedent, 2000 District Court Rule 7(c), in the addition of a reference to a probationer's waiver of the violation hearing as being part of the violation admission procedure. The sentence also differs in the deletion of the term "stipulates." Although an admission of a violation is often referred to as a "stipulation," it was concluded that the latter term inadequately describes the legal event at issue, and that the term "admission" is preferable. These amendments are consistent with Rule 6(g), which specifically addresses the violation admission procedure. Section (c) includes a reference to Rule 6(g). 

Section (c) makes it clear that written findings stating the evidence relied upon are not required when a finding of violation is based on an admission. Section (d) differs from its antecedent in the addition of its third sentence, which prohibits the "continuance for disposition" without good cause, and expressly eliminates delay to await the outcome of an underlying new criminal charge as constituting such good cause. The latter provision is intended to eliminate the possibility of post-finding "tracking." Delay in the form of "tracking" at the outset of a violation proceeding, before a violation is found, is expressly prohibited by Rule 6(e). 

Section (d) contains some minor improvements in terminology that are of no critical legal or procedural significance. 

Section (f) reflects the addition of the phrase "or other disposition" in recognition of the fact that, following the revocation of probation, the court's options where no sentence was imposed at the time probation was ordered are not limited to the imposition of a sentence. For example, where straight probation (which is not a "sentence") had been ordered, the court, after finding violation and revoking probation, may once again order straight probation.

(2000 Commentary to Former Rule 7)

Requirement of a finding

This rule addresses the court's two separate tasks upon completion of the violation hearing. Section (a) requires the court to adjudicate the factual issue of whether a violation has occurred. It expressly eliminates as an option a "general continuance."

The requirement that a finding be made on the issue of violation is based on several considerations. First, and most important, it is essential for the credibility of the probation order that the issue raised by the alleged violation be resolved. Even if the alleged violation involves a relatively minor matter, the likelihood of successful change in the probationer's behavior is diminished if the court temporizes in its role as finder of fact. If a violation has occurred, the probationer should be confronted with that fact. If no violation is found, the probationer is entitled to that finding on the record. No useful judicial or probation purpose is served by failure to adjudicate after the evidence has been presented. A failure by the court to decide the issue can foster the perception on the part of the probationer that if the court does not take the matter seriously, neither should he or she.

Second, adjudication of the violation charge does not limit the court's wide discretion regarding disposition. As addressed further in the rule, if a violation is found, the court's options range from a simple warning with the current terms of probation continued, to a revocation of probation, which in many instances will result in incarceration.

Third, the adjudication of a violation will establish an appropriate record of the probationer's non-compliance, which can be essential to an appropriate disposition if a subsequent violation occurs. Minor violations, even if they do not warrant significant sanctions in themselves, may provide important information in any subsequent proceedings.

It should be noted that the "seriousness" of the violation, its impact or lack of impact on any victim and the nature of the underlying crime are irrelevant to whether the alleged violation occurred. Those matters relate solely to the court's disposition if a violation is found.

In referring to the situation where the court finds no violation, section (b) of the rule reiterates three important points: the probation officer bears the burden of proof, the standard of proof is a preponderance of the evidence, and only a violation that has been formally alleged in the Notice of Probation Violation and Hearing may be found.

Section (c) of the rule repeats these three points regarding the finding of a violation and adds that a violation may be found based on the probationer's admission. It also adds the requirements of findings of fact and a statement of the evidence relied on, which are due process requirements. Morrissey v. Brewer, 408 U.S. 471 , 489, 92 S.Ct. 2593, 2604 (1972). Failure to make findings and a statement of the evidence relied on appears to be reversible error. See Fay v. Commonwealth, 379 Mass. 498 , 504-505, 399 N.E.2d 11, 15-16 (1980). The Court in Fay also ruled that written findings were not required as a matter of due process, where such findings were announced orally on the record in the presence of the probationer and the probationer subsequently obtained a written copy in the form of a transcript. Fay v. Commonwealth, 379 Mass. at 504-505 , 399 N.E.2d 11, 15-16 (1980). The rule, however, requires that the findings and evidence relied on be stated in writing.

Disposition

Section (d) of the rule sets out four specific types of dispositions that are available to the court if a violation is found. These are expressly described as an exclusive list of the court's options, though they provide a comprehensive range of sanctions. The rule also provides factors that the court should consider on disposition, namely:

•    the recommendation of the Probation Department.
•    public safety.
•    seriousness of the crime of which the probationer was found guilty.
•    nature of the violation.
•    record of any previous violation.
•    impact on a victim of the underlying crime.

Counsel is free to argue, and the court is free to consider, any relevant mitigating factors.

Regarding the choice of disposition, two factors are essential: (1) disposition is a matter of the court's discretion. McHoul v. Commonwealth, 365 Mass. 465 , 469-470, 312 N.E.2d 539, 543 (1974); Commonwealth v. Durling, 407 Mass. 108 , 111, 551 N.E.2d 1193, 1195 (1990); and (2) disposition is not a punishment for the new crime, but rather relates to the underlying offense. Commonwealth v. Odoardi, 397 Mass. 28 , 30, 489 N.E.2d 674, 675 (1986).

Section (d)(i) provides for continuance of probation. This may be appropriate where the violation is minor and the probationer has no history of previous violations. It can be completely appropriate for a probation officer to commence and successfully prosecute a probation violation proceeding and then recommend that the current probation terms merely be continued. This may reflect the probation officer's judgment that, though minor, the offense should be adjudicated to impress upon the probationer the importance of compliance, that a warning from the court is necessary to prevent more serious violations and that the violation should be a matter of record. The continuance of current probation terms despite a finding of violation is sometimes referred to as "reprobating" the probationer.

Section (d)(ii), provides for termination of probation. This outcome can be appropriate where the offense is minor and the court determines that the purpose of probation has been accomplished. It can also be appropriate in conjunction with the disposition of a new offense, where the probationer is already serving a sentence, and where the probationer is on probation in another court.

Under section (d)(iii), the court has the dispositional option of modifying the probationary terms after a finding of violation. It has been held that it is "a matter of well-established common law, that courts do possess [the authority to modify probation conditions], and that conditions of probation may be amended to serve 'the ends of justice and the best interests of both the public and the defendant.' " Buckley v. Quincy Division of the District Court Dept., 395 Mass. 815 , 817, 482 N.E.2d 511, 512 (1985), citing Burns v. United States, 287 U.S. 216 , 221, 53 S. Ct. 154, 156 (1932).

The addition of reasonable conditions to an individual's probation does not constitute a revision or revocation of a sentence under Mass. R. Crim. P. 29. Buckley, supra, at 818-819 , 482 N.E.2d at 513. The Court did not "define that point at which the modification is so drastic that it becomes the revision of a sentence subject to the requirements of rule 29," noting that the modification in Buckley was a nonpunitive rehabilitative measure, designed to facilitate the successful reintegration of the plaintiff into the community. Buckley, supra, at 818-819 n.5, 482 N.E.2d at 513 n.5.

It should be noted that the Court in Buckley was addressing a situation where conditions were added to a probation order without any finding of a violation, but rather based on an assessment by a probation officer. The Court ruled that a supervising court (as distinguished from a sentencing court) may not modify the conditions of probation without a material change in circumstances such as a violation of probation. It also indicated that a violation of probation is a material change in circumstances:

"Our holding does not limit whatever authority is held by the supervisory court to modify conditions where there has been a material change in circumstances (such as a violation of a condition of probation). Nor need we outline those situations in which the sentencing court might modify the terms of probation.".

Buckley v. Quincy Div. of Dist. Court Dept., supra, at 820, 482 N.E.2d at 514.

Section (d)(iii) addresses issues left unaddressed in Buckley by affirmatively authorizing the court conducting a probation violation hearing to modify the conditions of probation upon a finding of violation.

Revocation: stay after revocation

Section (d)(iv) provides for the most serious sanction upon a finding of probation violation, namely, revocation of probation. Under Commonwealth v. Holmgren, 421 Mass. 224, 656 N.E.2d 577 (1995), any sentence that was imposed, but its execution suspended pending probation, must be ordered executed in its entirety upon revocation of probation. This ruling was based on an unambiguous statutory requirement in G.L. c. 279, s. 3.

The requirement of executing a suspended sentence upon revocation of probation is reflected in section (e), which also provides two specific bases for a stay of execution. This provision precludes any stay other than for (1) appeal or (2) a brief time for a probationer to attend to personal matters. A stay simply to avoid the execution of sentence, with or without the addition of new terms, is not allowed under the rule. There are several reasons for this. First, there appears to be no established legal basis for such a stay. Second, such a stay is inconsistent with the plain language of Holmgren. Third, the terms of such a stay are unenforceable. Conditions on the person's behavior during the stay cannot be ordered as probation -- probation has been revoked. On the other hand, the court cannot condition the stay on unstated or vague conditions (e.g., "stay out of further trouble"), since a termination of the stay presumably requires incarceration, which, in turn, requires an opportunity for the person to be notified and heard regarding the factual issue of whether he or she violated the stay. One element of such a process would be specificity of the alleged violation. Even if conditions on such a stay were expressly stated in writing, they could not be enforced without a due process procedure similar to the same probation revocation procedure that has just been concluded. Since the person would not be on probation, there would be no one with authority to "prosecute" the alleged violation of the stay conditions. Perhaps most important, such a stay is impermissible because it implies that if the person successfully completes the stay, on whatever terms are imposed, written or unwritten, the sentence that had to be ordered executed pursuant to Holmgren somehow disappears.

Section (d)(iv) requires that, if the court decides to revoke probation, it must provide the reasons for that decision. A statement of reasons for deciding to revoke probation is a requirement of due process. Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756 (1973). While the reasons need not be put in writing to ensure due process, Fay v. Commonwealth, 379 Mass. 498, 399 N.E.2d 11(1980), the rule requires them in writing to ensure a clear and accessible record.

Disposition where no sentence originally imposed

Section (f) addresses the situation where the probationer was sentenced with "straight probation" on the underlying conviction. On the one hand, this means that upon a revocation of probation, there is no suspended sentence to be executed. On the other hand, the probationer is subject to any sentence for the underlying crime that is provided by law. Though it may appear illogical, this would appear to include a sentence involving probation, even though the triggering event for the imposition of such a sentence is a violation and revocation of the "straight" probation originally ordered. Presumably, if such post-revocation probation is imposed, the conditions and the consequences for any violation will take into account the fact that probation has already been violated.

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