MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In this consolidated appeal, the defendant, Joseph Silva, challenges three separate orders of a Juvenile Court judge: (1) an order dated October 17, 2018, finding him in violation of, and revoking, probation; (2) an order dated October 10, 2019, denying in part his motion for a new violation of probation hearing; and (3) an order dated November 25, 2019, finding him in violation of probation. The defendant contends that he received ineffective assistance of counsel at his October 2018 violation of probation hearing and that insufficient evidence supports the November 2019 finding of a violation. We affirm.
Background. In 2012, a jury found the defendant to be a youthful offender, see G. L. c. 119, § 58, with respect to charges of armed assault with intent to rob, see G. L. c. 265, § 18 (b), and assault and battery by means of a dangerous weapon, see G. L. c. 265, § 15A (b). A Juvenile Court judge committed him to the custody of the Department of Youth Services until age twenty-one, followed by a suspended State prison term of not less than five and not more than seven years, with probation until June 24, 2020.
Between 2013 and 2017, the defendant received five notices of probation violations, at least two of which resulted in findings of violations. With respect to the violations underlying this appeal, three notices were issued. The first notice, dated August 14, 2018, alleged shoplifting. An amended notice of violation, which issued on October 5, 2018, added allegations of failure to complete an anger management program, intimidation of a witness, and threatening bodily harm. A second amended notice of violation issued on October 12, 2018, adding allegations of assault and battery on a household member and assault and battery on a pregnant person based on an incident that occurred on October 9, 2018. The intimidation, threats, and assault and battery violations all involved the defendants girlfriend. The very day the defendant received the second amended notice, the hearing with respect to all three notices began. After a two-day hearing, a Juvenile Court judge (who was not the trial judge) found that the defendant had violated the conditions of his probation, revoked probation, and imposed the suspended State prison sentence.
In June 2019, the defendant filed a motion for a new violation of probation hearing on the ground of ineffective assistance of counsel, due in part to counsels failure to assert the defendants right to sufficient notice of the hearing. The judge allowed the motion only with respect to the two violations alleged in the second amended notice (arising from the October 9 incident) because the defendant did not receive the required seven days’ notice of those charges prior to the hearing. See Juvenile Court Standing Order 1-17 (III)(b)(iii), (IV)(d). The judge denied the motion with respect to the ineffective assistance claims. Notwithstanding the fact that she had vacated two of the findings of violation, the judge did not disturb her decision to revoke probation and impose the suspended sentence. The judge explained that, given the defendants repeated violations of the conditions of parole, the uncontested shoplifting violation would have warranted the same disposition:
“The defendants history on probation reveals his unwillingness -- or inability -- to comply with the terms of his probation. Had the Court been faced with only the defendants fourth violation (his shoplifting), the Court would still have revoked his probation and imposed the suspended sentence.”
After a new hearing in November 2019, the judge found the defendant in violation with respect to the assault and battery charges arising from the October 9 incident.
Discussion. 1. Ineffective assistance of counsel. The defendant contends that he was denied effective assistance of counsel at the October 2018 hearing, and that the judge abused her discretion in denying his motion for a new hearing on this ground. “It is well settled that ‘a probationer is entitled to the effective assistance of counsel at a probation violation hearing whenever imprisonment may result.’ ” Commonwealth v. Vargas, 475 Mass. 86, 95 (2016), quoting Commonwealth v. Pena, 462 Mass. 183, 188 (2012). “The defendant or probationer bears the burden of proving ineffectiveness by a showing that counsels representation was constitutionally inadequate and that the defendant suffered prejudice.” Vargas, supra.
The defendant has not carried this burden. He contends that his attorney at the probation violation hearing failed to conduct a reasonable investigation concerning the defendants ability to pay for anger management classes and to adequately prepare to cross-examine the girlfriend. See Commonwealth v. Long, 476 Mass. 526, 532 (2017). Even if we disagreed with the judges thorough analysis in which she concluded that counsels performance did not fall measurably below that of an ordinary fallible attorney, see Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), which we do not, the defendants claim founders on his inability to demonstrate prejudice. The violation with respect to the shoplifting charge was and is unchallenged,
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and the judge specifically stated that she would have revoked probation and imposed the suspended sentence based on the shoplifting violation alone. “Probation may be revoked if the evidence at a probation surrender hearing establishes, ‘at least to a reasonable degree of certainty, that the defendant had violated a condition or conditions of his probation.’ ” Commonwealth v. Arroyo, 451 Mass. 1010, 1011 (2008), quoting Commonwealth v. Maggio, 414 Mass. 193, 198 (1993). Based on the judges explicit statement in her decision on the motion for a new hearing, we need not speculate on what she would have done based solely on the shoplifting charges. See Commonwealth v. Hamilton, 95 Mass. App. Ct. 782, 789-790 (2019). Accordingly, any alleged failure of counsel with respect to the other violations caused no cognizable prejudice. See Vargas, 475 Mass. at 97.
2. Sufficiency. We briefly discuss the evidence supporting the November 2019 findings of violation, which are independent of any claim of ineffective assistance. “The Commonwealth must prove any ‘violation of probation by a preponderance of the evidence.’ ” Commonwealth v. Grant G., 96 Mass. App. Ct. 721, 724 (2019), quoting Commonwealth v. Bukin, 467 Mass. 516, 520 (2014). A judge may rely on hearsay evidence in finding a violation of probation so long as the judge finds, in writing, that the hearsay is “substantially reliable.” See Commonwealth v. Leopold L., 96 Mass. App. Ct. 796, 803 (2020), quoting Juvenile Court Standing Order 1-17 § (VII)(b).
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Although “ ‘[u]nsubstantiated and unreliable hearsay cannot, consistent with due process, be the entire basis of a probation revocation,’ ‘[w]hen hearsay evidence is reliable ․, then it can be the basis of a revocation.’ ” Bukin, supra at 520, quoting Commonwealth v. Durling, 407 Mass. 108, 118 (1990).
Evidence admitted at the November 2019 hearing included the testimony of the police officer who responded to 911 calls on October 9, 2018, arrested the defendant, and interviewed the girlfriend about the incident. The recordings of 911 calls -- from both the defendant and the girlfriend -- the police report, the girlfriends ambulance records, and her affidavit in support of an application for a G. L. c. 209A abuse prevention order (209A) against the defendant were also admitted. The girlfriend also testified at the hearing but asserted her privilege against self-incrimination with respect to questions concerning her prior testimony about the incident and her 209A affidavit. In her written order issued after the hearing, the judge specifically credited and found substantially reliable the girlfriends statements in the 209A affidavit, her 911 call, her statements to the arresting officer, and her statements to emergency medical personnel. The judge found, and we agree, that the statements were factually detailed, internally consistent, and, in the case of the affidavit, sworn under the penalties of perjury.
The defendant argues that because the girlfriend asserted her privilege against self-incrimination, her hearsay statements “lack sufficient indicia of reliability.” However, the girlfriends invocation of her privilege goes to the weight rather than the admissibility of her statements. See Commonwealth v. Patton, 458 Mass. 119, 131 (2010) (“It was a matter for the judge to decide how much weight to give the evidence of recantation”). We discern no error in the judges conclusion that the girlfriends hearsay statements were substantially reliable, and no abuse of discretion in her determination that violations of probation occurred. See Bukin, 467 Mass. at 520-521.
The orders dated October 17, 2018; October 10, 2019; and November 25, 2019, are affirmed.
So ordered.
Affirmed
FOOTNOTES
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. The defendant did not argue ineffective assistance of counsel with respect to the shoplifting violation and does not challenge this finding on appeal.
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. In assessing the reliability of hearsay evidence, the criteria “to be considered ․ [include] (1) the level of factual detail, rather than generalized and conclusory assertions; (2) whether the statement is based on personal knowledge and direct observation; (3) whether the statement is corroborated by evidence submitted by the probationer; (4) whether the statement was provided under circumstances that support the veracity of the source; and (5) whether the statement was provided by a disinterested witness.” Commonwealth v. Patton, 458 Mass. 119, 132-133 (2010), citing Commonwealth v. Durling, 407 Mass. 108, 118 (1990).