Superior Court Guidelines for Probation Violation Proceedings

Effective August 5, 2024

Section 1: Scope and purpose

These guidelines govern proceedings in the Superior Court where the Probation Service alleges that a probationer has violated one or more conditions of probation. The purpose of these guidelines is to ensure that the Superior Court conducts probation violation proceedings promptly, uniformly, and in accordance with applicable law.

These guidelines do not apply to alleged violations of pretrial probation, or conditions of pretrial release.

Commentary

These guidelines supersede the Guidelines for Probation Violation Proceedings in the Superior Court (February 1, 2016). They expand on the principles set forth in the 2016 guidelines and reflect changes in the law since 2016.

These guidelines do not cover alleged violations of pretrial probation, under G. L. c. 276, § 87; see Commonwealth v. Cheney, 440 Mass. 568, 571–575 (2003), or alleged violations of pretrial release imposed under G. L. c. 276, §§ 57, 58A, or 87. See Commonwealth v. Preston P., 483 Mass. 759, 762–765 (2020) (discussing differences between pretrial probation and pretrial conditions of release, and consequences of violations of each).

Section 2: Definitions

As used in these guidelines, the following terms shall have the following meaning:

“Continuance without a finding”, a court order following acceptance of a plea of guilty or an admission to sufficient facts that continues the case, on conditions of probation, to a date certain without entry of a guilty finding.

“Final violation hearing”, the hearing at which a judge determines whether the probationer violated conditions of probation.

“General Conditions of Probation”, the standard conditions set forth in the Order of Probation Conditions form that are part of every probation order, except as otherwise specified by the court.

“Initial violation hearing”, the hearing at which the probationer first appears before a judge or magistrate in response to a Notice of Alleged Probation Violation and Hearing, to appoint counsel, determine terms of release or detention, and schedule a final violation hearing.

“Notice of Alleged Probation Violation and Hearing”, the form issued by the Probation Service to the probationer which states the alleged violations of probation and the date for an initial violation hearing.

“Order of Probation Conditions”, the form the court uses to place a defendant on probation that sets forth the General Conditions of Probation, and any Special Conditions of Probation.

“Massachusetts Probation Service” or “Probation Service”, consists of probation departments located in the Superior, District, Boston Municipal, Juvenile, and Probate and Family courts throughout the state.

“Probation Violation Findings and Disposition”, the form that may be used by the court when determining whether the probationer violated conditions of probation, and when ordering an appropriate disposition for such a violation.

“Prosecuting Attorney”, the District Attorney or Attorney General who prosecuted the criminal case in which the court ordered probation.

“Revocation of probation”, a disposition revoking a probation order after a judge has found that the probationer violated conditions of probation.

“Special Conditions of Probation”, any condition included in an Order of Probation Conditions, in addition to the General Conditions of Probation.

“Stipulation to a violation”, an admission by a probationer to violating conditions of probation, as alleged in the Notice of Alleged Probation Violation and Hearing.

“Surrender”, the procedure by which the Probation Service requires a probationer to appear before the court to answer for alleged probation violations.

Commentary

A continuance without a finding requires that the defendant tender a guilty plea or an admission to sufficient facts, and that the judge accept the plea or admission. G. L. c. 278, § 18; see Reporter’s Notes to Mass. R. Crim. P. 12(a)(2) (2004); see also Commonwealth v. Powell, 453 Mass. 320, 324–325 (2009). Successful compliance with the conditions of probation imposed as part of a continuance without a finding will result in dismissal of the charges. See Commonwealth v. Pyles, 423 Mass. 717, 722–723 (1996). “However, in the event of a violation of those conditions, the ‘admission’ remains and may ripen into an adjudication of guilt and imposition of sentence.” Commonwealth v. Villalobos, 437 Mass. 797, 801 (2002). If the court accepted a guilty plea, a violation may result in entry of a guilty finding and imposition of sentence.

The Notice of Alleged Probation Violation and Hearing is the “notice of surrender” referred to in G. L. c. 279, § 3. “Notice of surrender” and “surrender notice” are used widely in the case law. See generally Commonwealth v. Durling, 407 Mass. 108, 111 (1990).

The sentencing judge has discretion to modify the General Conditions of Probation set forth in the Order of Probation Conditions. See Superior Court Rule 56. Space is provided on the Order of Probation Conditions form for the court to specify when the term of probation begins. Probation is presumed to begin when the probationer is released to the community, absent a clear indication by the sentencing judge to the contrary. See, e.g., Commonwealth v. Medina, 487 Mass. 616, 618–622 (2021) (probation commenced when probationer was released from civil commitment as a sexually dangerous person following his release from incarceration, where court made no clear indication to the contrary); Commonwealth v. Ruiz, 453 Mass. 474, 475, 484 (2009) (probationer could not be found in violation of condition prohibiting contact with victim during incarceration phase of sentence where defendant did not receive "clear notice" that condition was in effect at that time).

Previously, the Order of Probation Conditions included a provision requiring the probationer to pay monthly probation supervision fees. However, that reference was deleted, effective July 1, 2022, when the Legislature eliminated probation supervision and administrative fees, as well as victim services surcharges. See G. L. c. 276, § 87A, as amended by St. 2022, c. 126, §§ 104 & 197.

With the restrictions discussed in Section 5(c), if a judge finds a violation of probation, the judge may terminate the term of probation and either discharge the probationer or order the probationer incarcerated; reprobate the probationer under the same conditions; or impose different or additional conditions of probation, including special conditions. This commentary discusses certain special conditions of probation that may be imposed at sentencing and/or following a finding of a probation violation. Any Special Condition of Probation must be reasonably related to the goals of sentencing and probation. Commonwealth v. Santana, 489 Mass. 211, 222–223 (2022), and cases cited. A judge has discretion to impose conditions that the judge “deems proper,” G. L. c. 276, § 87, but conditions should be narrowly tailored to address rehabilitation of the probationer and protection of the public. Certain special conditions, discussed below, require particular attention:

• GPS. Before a judge may order global positioning system (GPS) monitoring, the judge must find, based on “a constellation of factors” and an “individualized determination,” that the Commonwealth’s interests in rehabilitating the probationer and protecting the public outweigh the intrusion on the probationer’s privacy. Commonwealth v. Feliz, 481 Mass. 689, 700–701, 705 (2019); see also Commonwealth v. Roderick, 490 Mass. 669, 677–683 (2022); Commonwealth v. Johnson, 481 Mass. 710, 718–719 (2019). The factors that a judge may consider include, “among others, the intrusiveness of the search; the defendant's particular circumstances, such as his or her criminal convictions, past probation violations, or risk of recidivism; and the probationary purposes, if any, for which the monitoring was imposed.” Johnson, 481 Mass. at 719.
• Substance use. A judge may order a probationer to remain drug or alcohol free, so long as the condition is reasonably related to legitimate probationary goals. Commonwealth v. Eldred, 480 Mass. 90, 94–98 (2018) (drug-free condition permissible where underlying larceny was motivated by desire to buy illegal drugs).
• Restitution. When ordering restitution, a judge must determine the appropriate length of probation before determining the monthly amount of restitution; ascertain the amount of restitution based on the victim’s actual economic loss; and consider the defendant’s ability to pay—based on the defendant’s financial resources, including income and net assets, and financial obligations, including the amount necessary to meet minimum basic needs such as food, shelter, and clothing for the defendant and his¹ dependents. Commonwealth v. Henry, 475 Mass. 117, 126, 129 (2016). Determining the monthly amount cannot be delegated to the Probation Service; the court must determine that amount. Id. at 125.
• Searches. A Special Condition of Probation allowing the Probation Service to conduct searches of a probationer’s cellular telephone or other electronic devices must be carefully tailored to comport with constitutional requirements. See, e.g., Commonwealth v. Feliz, 486 Mass. 510, 515–521 (2020) (searches of electronic devices where child pornography might be stored were permissible); Commonwealth v. Shipps, 97 Mass. App. Ct. 32, 41–44 (2020) (same). A condition of probation authorizing the Probation Service to search a probationer’s home must specify that such a search requires reasonable suspicion that the probationer violated a probation condition and a warrant or a traditional exception to the warrant requirement. See Commonwealth v. Waller, 90 Mass. App. Ct. 295, 304 (2016), citing Commonwealth v. LaFrance, 402 Mass. 789, 792–794 (1988).
• Treatment programs. A Special Condition of Probation may require that the probationer participate in a treatment program to address behavior related to the underlying offense, such as treatment for substance use disorder, domestic violence, or anger management. If the deadline for completing the program is not specified in the Order of Probation Conditions, the program “must be completed within a reasonably prompt period of time as determined initially by the [Probation Service].” Commonwealth v. Bynoe, 85 Mass. App. Ct. 13, 14 (2014). See also id. at 19–22 & nn. 7, 8, & 10. Where the probationer is convicted of violating a restraining order, in violation of G. L. c. 209A, § 7, assault or assault and battery on a family or household member, in violation of G. L. c. 265, § 13M, or strangulation, in violation of G. L. c. 265, § 15D, and the victim is an intimate partner, the sentencing court is required to assign the probationer to an Intimate Partner Abuse Education Program (IPAEP), or to make written findings setting forth the reasons for not making such an assignment. See G. L. c. 209A, § 7, par. 5; G. L. c. 265, § 13M(d); G. L. c. 265, § 15D(d).

Section 3: Commencement of violation proceedings

(a) When:

The Probation Service may begin violation proceedings where it concludes, in its discretion and consistent with its policies, standards, and training, that an alleged violation is unlikely to be resolved administratively. In addition, the law requires the Probation Service to initiate violation proceedings where a probationer has failed to participate in a treatment program ordered as a condition of probation, under G. L. c. 209A, § 7.

(b) How:

The Probation Service begins probation violation proceedings by: (1) filing a Notice of Alleged Probation Violation and Hearing in the court where the probationer is supervised; and (2) serving the notice in hand if the probationer has been arrested under G. L. c. 279, § 3, or is in custody on a separate criminal case, or by serving the notice by first-class mail to the last known residential address of the probationer, unless the court orders otherwise. Out-of-court service other than by first-class mail requires written return of service, with the manner of service noted on the court docket.

The Notice of Alleged Probation Violation and Hearing shall include the name of the probationer; the offense or offenses for which the probationer is on probation; the county in which probation was imposed; each condition alleged to have been violated; the basis for each alleged violation; and the date, time, and place of the initial violation hearing. Where at least one of the crimes for which the probationer is on probation is a felony, the Probation Service must, when issuing the notice, provide a copy of the notice to the Prosecuting Attorney.

Where a probationer is charged with a new offense in a court department other than the Superior Court, communication between the court departments and the probationer concerning the Notice of Alleged Probation Violation and Hearing, as well as matters of custody and transport of the probationer, are governed by Trial Court Joint Standing Order 2-16: Uniform Interdepartmental Procedures for Probation Violation Proceedings.

(c) Amendment or withdrawal of Notice:

The Probation Service may amend a Notice of Alleged Probation Violation and Hearing reasonably in advance of a final violation hearing, provided that the probationer is served in accordance with Section (b) above. The Probation Service may withdraw a Notice of Alleged Probation Violation and Hearing, consistent with its policies, standards, and training.

Commentary

Section (a) recognizes that the Probation Service generally has discretion to determine when to initiate violation proceedings. Thus, relatively minor alleged violations may be handled administratively by the Probation Service, according to its policies, standards, and training. There is at least one instance, however, when violation proceedings are required to be initiated by law. See G. L. c. 209A, § 7 (“If a defendant ordered to undergo treatment [after being convicted of violating a restraining order issued under G. L. c. 209A] has received a suspended sentence, the original sentence shall be reimposed if the defendant fails to participate in said program as required by the terms of his probation.”).

Section (b) requires the Probation Service to file and serve a Notice of Alleged Probation Violation and Hearing to begin violation proceedings. General Laws c. 279, § 3, requires the Probation Service to provide a copy of the notice to the Prosecuting Attorney where at least one of the crimes for which the probationer is on probation is a felony. Otherwise, the Probation Service may provide a copy of the notice to the Prosecuting Attorney in its discretion. The date, time, and place of the initial violation hearing shall be stated on the Notice of Alleged Probation Violation and Hearing form, unless the Probation Service requests a warrant.

Section 4. Initial violation hearing

(a) Timing

The initial violation hearing shall be held no later than fourteen days after service of the Notice of Alleged Probation Violation and Hearing, except for good cause. The date, time, and place of the initial violation hearing shall be stated on the notice.

(b) Appointment of counsel 

The probationer is entitled to the assistance of counsel, including appointed counsel if the probationer is indigent. The probationer may waive counsel if the court finds the waiver is made knowingly and voluntarily, and if the waiver is made in writing.

(c) Scheduling of final violation hearing

A final violation hearing shall be held no earlier than seven days after the initial violation hearing unless the probationer agrees to an earlier date. The final violation hearing shall be held within a reasonable time, presumptively within 30 days.

(d) Release or detention of probationer

The court may order the probationer released on personal recognizance or, if the Probation Service moves that the defendant be detained or released on bail or other terms of release and establishes probable cause to believe the probationer violated probation, the court may order the probationer detained or released on bail or other terms of release.

When determining whether to order a probationer released on personal recognizance, released on bail or other terms, or detained pending the final violation hearing, the court, in addition to making the probable cause determination referred to in the previous paragraph, shall consider the following factors. The probationer, the Probation Service, and any Prosecuting Attorney in the proceedings shall be entitled to be heard concerning these factors:

1. the probationer’s Court Activity Record Information (“CARI”), as well as the probationer’s federal and out-of-state criminal history information;
2. the nature of the offense for which the probationer is on probation;
3. the nature of any alleged new criminal conduct stated in the Notice of Alleged Probation Violation and Hearing;
4. the nature of any other alleged violations of probation stated in the Notice of Alleged Probation Violation and Hearing;
5. the likelihood of incarceration if the probationer is found in violation of probation;
6. the likelihood that the probationer will appear at the final violation hearing if released; and
7. protection of the public, any victim or alleged victim, or the probationer.

If the court sets bail or releases the probationer on personal recognizance, the court may impose additional terms and conditions that the court deems reasonably necessary to ensure the presence of the probationer at the final violation hearing, or to ensure the safety of the public, any victim or alleged victim, or the probationer.

If the Probation Service alleges that the probationer violated any term of release imposed between the initial violation hearing and the final violation hearing, the court shall hold a hearing. Upon a finding of probable cause to believe that such a violation occurred, the court, in its discretion, may order the probationer detained or released on the same or modified conditions.

Commentary

The purposes of the initial violation hearing are to (1) appoint counsel, if the probationer is indigent and does not waive counsel; (2) schedule a final violation hearing; and (3) determine whether to release (on personal recognizance, or on bail or other terms of release) or detain the probationer pending the final violation hearing.

Section (a) sets a presumptive time frame of two weeks for conducting the initial violation hearing, reflecting the importance of addressing allegations of probation violations in a timely manner.

Section (b) recognizes that probationers have the right to counsel at probation violation hearings. See Commonwealth v. Pena, 462 Mass. 183, 191 (2012); Commonwealth v. Faulkner, 418 Mass. 352, 359–360 (1994). A waiver of that right must be made knowingly and voluntarily, and in writing. See S.J.C. Rule 3:10, Section 3. The Probation Service may withdraw a Notice of Alleged Probation Violation and Hearing. See Section 3(c) above.

Section (c) provides that the final violation hearing shall take place at least seven days after the initial violation hearing, unless the probationer waives the seven-day requirement, and, at the outside, presumptively within 30 days, or within a reasonable time. See Morrissey v. Brewer, 408 U.S. 471, 488 (1972) (final violation hearing should be held “within a reasonable time” after initial violation hearing); Commonwealth v. Odoardi, 397 Mass. 28, 31–32 (1986), quoting In re Gault, 387 U.S. 1, 33 (1967) (notice of final violation hearing “must be given sufficiently in advance . . . so that reasonable opportunity to prepare will be afforded”).

Section (d) concerns the probationer’s custody status during the pendency of the probation violation proceedings. A finding of probable cause to believe the probationer violated a term of probation is a prerequisite to an order detaining the probationer or otherwise curtailing the probationer’s liberty through bail or other terms. See Gagnon v. Scarpelli, 411 U.S. 778, 782, 786 (1973), citing Morrissey, 408 Mass. at 487, 489; Odoardi, 397 Mass. at 32–34; Fay v. Commonwealth, 379 Mass. 498, 504 (1980). The word “bail,” as used in Section (c), means a monetary term of release pending a final violation hearing; it does not mean pretrial bail under G. L. c. 276, § 57. See Brangan v. Commonwealth, 477 Mass. 691, 694–696 (2017) (court ordered $20,000 bail on probation surrender for probationer’s alleged commission of robbery while on probation for child rape; court later ordered an additional $20,000 bail on the robbery indictment); see also Commonwealth v. Ward, 15 Mass. App. Ct. 388, 393 (1983) (stating that probationer could “apply to the court to be released on bail pending the required hearing” on an alleged probation violation). A probationer who is the subject of a probation violation proceeding in the District Court may not seek bail review in the Superior Court, concerning the probationer’s custody status pending the final violation hearing in the District Court. See Commonwealth v. Puleio, 433 Mass. 39, 43 (2000).

Section (d) also includes the procedural requirements for a probable cause determination. See Gagnon, 411 U.S. at 786; Morrissey, 408 U.S. at 486–487. “At the hearing the [probationer] may appear and speak in his own behalf; he may bring letters, documents, or individuals who can give relevant information to the hearing officer. On request of the [probationer], a person who has given adverse information on which [probation] revocation is to be based is to be made available for questioning in his presence. However, if the hearing officer determines that an informant would be subjected to risk of harm if his identity were disclosed, he need not be subjected to confrontation and cross-examination.” Morrissey, 408 U.S. at 487. The procedural protections for a probationer at a probable cause proceeding are similar to but less exacting than those at a final violation hearing, where more is at stake; as compared to a probable cause proceeding, a final violation hearing is “somewhat more comprehensive” and “less summary.” Gagnon, 411 U.S. at 782, 786.

In addition, Section (d) provides a non-exhaustive list of factors that a court may consider when deciding, in its discretion, whether to order a probationer released on personal recognizance, released on bail or other terms, or detained. See Eldred, 480 Mass. at 98–101, citing, among other sources, Rule 5(c) of the District/Municipal Courts Rules for Probation Violation Proceedings. If the court orders bail as a term of release, the court should consider the probationer’s financial resources even though, by finding probable cause, the court has made a finding sufficient to detain the probationer. Cf. Brangan, 477 Mass. at 697–710 (when setting bail under G. L. c. 276, § 57, which may result in the defendant’s pretrial detention, the court must consider the defendant’s financial resources). As for nonmonetary terms of release, the court may impose any terms that it deems reasonably necessary and appropriate to ensure that the probationer appears at the final violation hearing, or to ensure the safety of any member of the public, any victim, or the probationer. For examples of such terms, see District Court Standing Order 4–15: Conditions of Release at a Probation Detention Hearing Part 2; Boston Municipal Court Standing Order 2–15: Conditions of Release Pursuant to Rule 5(c) of the District/Municipal Courts Rules for Probation Violation Proceedings Part III; Juvenile Court Standing Order 1–17: Violation of Probation Proceedings, Part V(c).

If the probationer violates any term of release imposed between the initial violation hearing and the final violation hearing, the court may order the probationer detained or may modify the terms of release pending the final violation hearing. Cf. Paquette v. Commonwealth, 440 Mass. 121, 128–129 (2003) (discussing court’s inherent authority to revoke bail for breach of term of release). Such a determination is limited to addressing the probationer’s custody status until the final violation hearing and has no bearing on the ultimate question whether the probationer violated the conditions of probation.

Section 5: Final violation hearing

(a) Timing

The final violation hearing shall be scheduled according to Section 4(c). If the Notice of Alleged Probation Violation and Hearing alleges the commission of a new offense, continuing the final violation hearing until resolution of the new offense ordinarily is appropriate only where denying the continuance and conducting the final violation hearing would compromise the integrity of the investigation, prosecution, or defense of the new case.

(b) Adjudication of alleged probation violation

Whether the probationer violated conditions of probation stated in the Notice of Alleged Probation Violation and Hearing is a question of fact which the court determines by a preponderance of the evidence. The probationer may contest an alleged violation or may stipulate to the violation by admitting to it and waiving his right to contest it.

(i) Contested violation

The Probation Service bears the burden of proving a probation violation by a preponderance of the evidence and may do so by calling witnesses or introducing other evidence. The Prosecuting Attorney may assist in the presentation of evidence. The probationer shall have the right to testify and to present witnesses and evidence. Each party has the right to cross-examine witnesses. All exhibits shall be marked. At the close of all the evidence, each party shall have an opportunity to present argument summarizing the evidence.

The court may rely on out-of-court statements as evidence of a probation violation if the statements (a) are offered for a non-hearsay purpose, (b) if they fall within an exception to the hearsay rule (Mass. G. to Evid. §§ 802–804), or (c) if the court finds that the statements have substantial indicia of reliability. When determining whether hearsay statements have substantial indicia of reliability, the court shall consider, among others, the following factors:

1. whether the evidence is based on personal knowledge or direct observation;
2. whether the evidence, if based on direct observation, was recorded close in time to the events in question;
3. the level of factual detail;
4. whether the statements are internally consistent;
5. whether the evidence is corroborated by information from other sources;
6. whether the declarant was disinterested when the statements were made; and
7. whether the statements were made under circumstances that support their veracity.

The court shall make any finding of substantial indicia of reliability either orally on the record or in writing. If made in writing, the finding may be made in an addendum to the Probation Violation Findings and Disposition form.

The court shall memorialize its ultimate finding on whether a probation violation occurred either in writing, for which the court may use the Probation Violation Findings and Disposition form, or orally on the record. If after a contested hearing the court finds no violation of probation, the court shall restore the probationer to probation under the same conditions. If the court finds a violation, the court shall specify which condition or conditions were violated and explain the evidentiary basis for the findings.

(ii) Stipulation and waiver

The court may accept a waiver of the probationer’s right to contest the violation, and a stipulation to the violation, only where the court finds, after a colloquy, that the probationer has conferred with counsel and waived his rights knowingly and voluntarily.

(c) Disposition after violation(s) found

After finding a violation of probation or accepting a stipulation to a violation, the court shall determine an appropriate disposition. The court shall consider dispositional recommendations made by the probationer, the Probation Service, and/or the Prosecuting Attorney, as well as:

1. the crime for which probation was imposed and its impact on any person or the community;
2. the nature of the probation violation(s);
3. the occurrence of any prior probation violation(s);
4. the overall performance of the probationer while on probation;
5. public safety;
6. the effect of a sentence on the chances of rehabilitation; and
7. any other mitigating or aggravating circumstances.

(i) Probation after guilty finding

If probation was imposed after entry of a guilty finding where a suspended sentence was imposed, the court may continue the probationary term with or without modifying the conditions or may revoke the suspension of the execution of the sentence. If the court revokes the suspension, the court shall order execution of the sentence forthwith. The court may stay such execution pending appeal, under Mass. R. Crim. P. 31, or upon motion of the probationer. If no suspended sentence was imposed on the underlying crime, the court shall impose a sentence or other disposition as provided by law and may order one of the following dispositional options:

1. reprobate with the existing conditions, with such admonition or instruction as the court may deem appropriate;
2. terminate the probation and discharge the probationer;
3. modify the duration and/or the conditions of probation, so long as the modifications do not significantly increase the severity of probation; or
4. revoke probation and impose a committed sentence.

(ii) Continuance without a finding

If probation was imposed after a continuance without a finding, the court may impose one of the following dispositions:

1. reprobate with the existing conditions, with such admonition or instruction as the court deems appropriate;
2. terminate the continuance without a finding and dismiss the underlying criminal case;
3. modify the duration and/or conditions of the continuance without a finding; or
4. terminate the continuance without a finding, enter a guilty finding, and either (a) continue the probation, with or without modifications, or (b) revoke the probation and impose a sentence or any other disposition provided by law.

(iii) Compliance credits

If the court finds no violation of probation, the probationer shall receive any applicable compliance credits retroactive to the filing of the Notice of Alleged Probation Violation and Hearing. G. L. c. 276, § 87B(c). If the court finds a violation of probation, the probationer may not receive any otherwise applicable compliance credits for the months during which the violation proceedings were pending. G. L. c. 276, § 87B(d)(i). If the court imposes a sentence of incarceration, any earned compliance credits shall be revoked. G. L. c. 276, § 87B(d). If a sentence of incarceration is not imposed, in its discretion the court may or may not revoke any earned compliance credits. G. L. c. 276, § 87B(d)(ii).

Commentary

Under Section (a), scheduling the final violation hearing to occur after resolution of a new criminal case, “tracking,” is generally disfavored. Allegations of probation violations should be resolved reasonably promptly, to further the goals of probation to rehabilitate the probationer and protect the public. Nonetheless, the court has discretion to determine that tracking may be appropriate in a given case where failing to continue the hearing might impair the integrity of the new criminal case.

Section (b) sets forth the procedural requirements for the final violation hearing. “In Durling, 407 Mass. at 113–114, [the Supreme Judicial Court] adopted the minimum requirements of due process applicable to probation violation proceedings established by the United States Supreme Court in Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973).” Hartfield, 474 Mass. at 479. The substance of those requirements are incorporated in these guidelines: written notice of the alleged probation violations; disclosure of the evidence against the probationer; the opportunity to appear and present witnesses and documentary evidence; the right to confront and cross-examine adverse witnesses, absent good cause for disallowing confrontation; a neutral and detached adjudicator; and written findings explaining whether the probationer violated probation and, if so, the bases for the findings. See Gagnon, 411 U.S. at 782, 786, citing Morrissey, 408 Mass. at 489.

For a contested violation, under Section (b)(i), the standard of proof is preponderance of the evidence. Commonwealth v. Holmgren, 421 Mass. 224, 226 (1995). Under G. L. c. 279, § 3, where “at least one of the underlying crimes for which [the probationer] is on probation is a felony . . . the court shall provide to the district attorney the opportunity to be heard and present evidence at the surrender hearing.” See also Commonwealth v. Bukin, 467 Mass. 516, 523 (2014) (“[a]lthough staff from the office of the district attorney may not interfere unduly with a probation officer's conduct of a probation hearing, an assistant district attorney may in appropriate circumstances assist in such hearings because, despite the separation of powers, the ‘compartments are not watertight’”); Commonwealth v. Negron, 441 Mass. 685, 686–687 (2004) (although probation officers function within the judicial branch while prosecutors function within the executive branch, “an assistant district attorney may participate in probation hearings by providing legal representation to the probation department without interfering with that department's internal functioning”); Commonwealth v. Tate, 34 Mass. App. Ct. 446, 447–448 (1993).

Section (b)(i) addresses the use of out-of-court statements in final probation violation proceedings. Such statements may be the basis of a finding of a violation only if they are reliable. Durling, 407 Mass. at 117. “Evidence which would be admissible under standard evidentiary rules [such as evidence offered for a non-hearsay purpose, or evidence that qualifies as an exception to the hearsay rule, Mass. G. to Evid. §§ 802–804] is presumptively reliable.” Id. at 118. But “[i]f the proffered evidence is not admissible under standard evidentiary rules, then a court must independently look to the reliability of that evidence,” and must determine whether the evidence has substantial indicia of reliability. Id.; Commonwealth v. Hartfield, 474 Mass. 474, 484 (2016); see also Mass. G. to Evid. § 1101, Note, Probation Violation Hearings.

Section (b)(i) sets out the seven “Hartfield factors” used to determine whether hearsay statements have substantial indicia of reliability. See Hartfield, 474 Mass. at 484; see also Durling, 407 Mass. at 118. If the judge relies on hearsay evidence in finding a violation of probation, the judge should make findings “either in writing or orally on the record” why the judge found the hearsay to be reliable. Hartfield, 474 Mass. at 485. In Commonwealth v. Rainey, 491 Mass. 632, 647–648 (2023), the court applied the Hartfield factors in finding that a police body-camera recording of statements by a domestic violence victim concerning an altercation with her boyfriend were admissible where the statements were based on personal knowledge, factually detailed, internally consistent, and corroborated by the victim’s injuries, and where the victim’s emotional distress lent credibility to her statements. "There is no requirement that hearsay satisfy all [of] the [seven Hartfield] criteria to be trustworthy and reliable." Commonwealth v. Costa, 490 Mass. 118, 124 (2022), quoting Commonwealth v. Patton, 458 Mass. 119, 133 (2010).

Under some circumstances, the declarant’s absence at a final violation hearing may violate the probationer’s due process right to present a defense. See Costa, 490 Mass. at 124–131. To determine whether a probationer’s due process right to call an adverse witness is “overcome by countervailing interests,” the court must weigh three due process factors articulated in Hartfield (different from the seven reliability factors discussed above) to determine, under the totality of the circumstances, whether the witness’s testimony is necessary for the probationer to present a defense:

1. whether the proposed testimony of the witness might be significant in determining whether it is more likely than not that the probationer violated the conditions of probation;
2. whether . . . the witness would provide evidence that adds to or differs from previously admitted evidence rather than be cumulative of that evidence; and
3. whether, based on an individualized assessment of the witness, there is an unacceptable risk that the witness's physical, psychological, or emotional health would be significantly jeopardized if the witness were required to testify in court at the probation violation hearing.

Costa, 490 Mass. at 127–128, quoting Hartfield, 474 Mass. at 481.

“A defendant can be found in violation of a probationary condition only where the violation was willful.” Commonwealth v. Henry, 475 Mass. 117, 121 (2016), and cases cited. Thus, for example, “a probationer cannot be found in violation for failing to pay a restitution amount that the probationer cannot reasonably afford to pay.” Id. at 122. Contrast id. at 124, n.5 (judge may find probation violation where probationer willfully failed to pay a restitution amount he or she had the ability to pay). A probationer may present evidence at a violation hearing relating to mental illness, and “the judge should consider such evidence at the adjudicatory stage if the evidence bears on whether a violation was willful, in the sense of having been within the probationer’s control.” Commonwealth v. Zachairah Z., 2024 WL 3627668, at *10, ___ Mass. ___ (Aug. 2, 2024).

Section (b)(ii) addresses the importance of conducting a colloquy with the probationer to ensure that any waiver of the probationer’s right to a final violation hearing is made knowingly and voluntarily. See Santana, 489 Mass. at 219; Commonwealth v. Sayyid, 86 Mass. App. Ct. 479, 489, 493 (2014). The content of the colloquy lies within the judge’s discretion, though the SJC has suggested, Santana, 489 Mass. at 220, that a judge cover the following topics, as a best practice:

1. require the probation officer to state the nature of the alleged violations, recite the factual basis for them, and summarize either orally or in writing the evidence that would be presented against the probationer at a probation violation hearing;
2. ask the probationer whether he agrees with the factual allegations stated [or concedes that the evidence would show a violation of probation, by a preponderance of the evidence];
3. inform the probationer of his rights to a hearing, to cross-examine witnesses, and to present evidence;
4. question the probationer regarding his understanding of these rights, whether he has consulted with counsel regarding his decision to waive them, and whether he intends to stipulate to the alleged violation and to waive each right; and
5. make an explicit finding on the record that the probationer's stipulation and waiver are knowing and voluntary before finding sufficient evidence of a violation. Id. at 220 (formatting adjusted here).

Other topics that a judge may wish to address, to ensure a knowing and voluntary waiver, include, for example:

• advising the probationer that the court shall not be bound by any agreement between the probationer and the Probation Service or Prosecuting Attorney concerning the disposition to be imposed after a stipulation;
• advising the probationer that he is not entitled to withdraw a knowing and voluntary stipulation after it has been accepted by the court.

Although oral findings satisfy due process requirements, Fay, 379 Mass. at 504–505, the better practice is for the court to make written findings, for which the court may use the Probation Violation Findings and Disposition form.

If the basis for a finding of a violation is a new criminal offense, the pertinent question is whether the probationer, by a preponderance of the evidence, engaged in new criminal conduct, not whether a criminal charge issued. See Commonwealth v. Williams, 102 Mass. App. Ct. 626, 629 (2023) (new criminal conduct constituted violation of probation even though new criminal charge was nol prossed before the final violation hearing; “[t]he focus of a probation violation hearing where the violation alleged is the commission of a new offense is the defendant's conduct, not a criminal complaint based on that conduct”).

If the probationer presented relevant evidence relating to mental illness in the probation violation hearing, and if the judge finds a violation of probation occurred, “the judge should consider evidence relating to mental illness in determining the appropriate disposition.” Commonwealth v. Zachairah Z., 2024 WL 3627668, at *10, ___ Mass. ___ (Aug. 2, 2024).

Under Section (c)(i), if the court finds that the probationer violated a condition of probation and if a suspended sentence was imposed on the underlying crime, the court may either continue the term of probation with or without modifying the conditions of probation or may revoke the suspension of the execution of the sentence. G. L. c. 279, § 3 (“if [the probationer] has been sentenced, [the court] may continue or revoke the suspension of the execution of his sentence”). If the court chooses to continue probation, the court may modify the conditions of probation because a violation of probation constitutes a material change in circumstances. See Commonwealth v. Buckley, 395 Mass. 815, 820 (1985) (court has authority to modify probation conditions “where there has been a material change in circumstances (such as a violation of a condition of probation)”) (parenthetical in original). That said, a modification may not be “so punitive as to significantly increase the severity of the original probation.” Commonwealth v. Goodwin, 458 Mass. 11, 18 (2010), citing Buckley, 395 Mass. at 818 n.5. If instead of continuing the term of probation the court revokes probation, the court is required to impose the suspended sentence. G. L. c. 279, § 3 (“[i]f such suspension is revoked, the sentence shall be in full force and effect”); Commonwealth v. Holmgren, 421 Mass. 224, 228 (1995); see also Commonwealth v. Bruzzese, 437 Mass. 606, 613–614 (2002) (if sentencing judge imposed bundled, concurrent suspended sentences and probation is later revoked on any of the offenses, court must order execution of all concurrent suspended sentences to avoid changing the original sentence or creating a double jeopardy problem of extending the sentence beyond that originally imposed). If no suspended sentence was imposed, and if the probationer was placed on probation for multiple offenses, the court may revoke probation and impose sentence on one or more offenses and continue probation on others.

Where the court has the discretion and chooses to extend probation or add to its conditions, or to impose a sentence, such a disposition is not punishment for the probation violation but rather is punishment for the original conviction. See Eldred, 480 Mass. at 102, and cases cited. The court may, however, consider the conduct constituting the probation violation, including conduct connected with a new offense, as relevant to the probationer’s capacity for rehabilitation. Once a defendant has been found in violation of the conditions of his probation, reliable evidence of past misconduct, both charged and uncharged, may be considered “where relevant to the judge's discretionary decision whether to revoke probation or modify conditions . . .” Commonwealth v. Herrera, 52 Mass. App. Ct. 294, 295 (2001). See also Commonwealth v. Goodwin, 414 Mass. 88, 92–93 (1993); Commonwealth v. Doucette, 81 Mass. App. Ct. 740, 744 (2012) (“goals of punishment for the underlying offense, deterrence, protection of the public, and rehabilitation are valid considerations in sentencing after revocation of straight probation”). The Probation Service and/or Prosecuting Attorney should provide the court with information about any new offense, to enable the court to craft an appropriate disposition.

“[A] judge considering the modification or addition of probation terms as an alternative to imprisonment may consider the conduct constituting the violation in modifying the conditions of probation or crafting new ones. Nevertheless, modified or additional conditions that increase the scope of the original probation may not be so punitive as to significantly increase its severity.” Santana, 489 Mass. at 224 (footnote omitted). In other words, “in cases where a probationer has violated the terms of his or her probation, the judge has the same power to modify or add probation conditions based on the violative conduct as the judge does based on materially changed circumstances in cases where there has been no violation—and is subject to the same limitation.” Id. at 224 n.12. The same limitations apply when modifying the duration and/or conditions of a continuance without a finding. For a discussion of common special conditions of probation, see the Commentary to Section 2.

As discussed in the Commentary to Section (b)(i), above, a probationer cannot be found in violation for failing to pay a restitution amount that the probationer cannot reasonably afford to pay. Henry, 475 Mass. at 122. Accordingly, “a judge may not extend the length of probation where a probationer violated an order of restitution due solely to an inability to pay.” Id. at 124. That said, “[a] judge remains free to revoke probation or to extend the term of probation where a probationer violates a condition of probation by willfully failing to pay a restitution amount he or she had the ability to pay.” Id. at n.6. See Bearden v. Georgia, 461 U.S. 660, 668 (1983) ("If the probationer has willfully refused to pay the fine or restitution when he has the means to pay, the State is perfectly justified in using imprisonment as a sanction to enforce collection”); Commonwealth v. Avram A., 83 Mass. App. Ct. 208, 214 (2013).

Section (c)(iii) reflects the requirements of the compliance-credit statute, G. L. c. 276, § 87B, which was enacted by St. 2018, c. 72, § 15, and became effective on January 13, 2019. The statute applies to defendants who begin probation after the effective date, even if they were sentenced before then. The statute requires the court, at sentencing, to notify an “eligible offender”—a criminal defendant convicted of an offense other than a sex offense under G. L. c. 6, § 178C, and sentenced to a period of incarceration followed by a period of probation—that, by complying with the conditions of probation, the offender will, beginning in the second year of probation, earn compliance credits toward shortening the probation supervision termination date. G. L. c. 276, § 87B(a), (b), & (f). A probationer earns no credits during the first year of probation, but beginning in the second year the probationer earns five days of credit each month that the probationer complies with the conditions of probation. G. L. c. 276, § 87B(b)(i) & (ii). During the third and subsequent years of probation, the earning rate is ten days per month. G. L. c. 276, § 87B(b)(iii).

While probation violation proceedings are pending, the accrual of compliance credits is suspended. G. L. c. 276, § 87B(c). And, depending on whether a violation is found, and whether the court imposes a period of incarceration, earned compliance credits may be forfeited. G. L. c. 276, § 87B(d). The statute provides that the Probation Service “shall calculate an eligible offender's supervision termination date, taking into consideration any earned compliance credits at the end of each calendar quarter. Upon such calculation, the probation service shall inform the eligible offender of the termination date.” G. L. c. 276, § 87B(e).

Effective August 5, 2024.

Michael D. Ricciuti, Chief Justice of the Superior Court

¹ These guidelines use the pronouns he, him, and his for ease of reference only. Those terms refer equally to all gender identities.

Last updated:	August 5, 2024