MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the District Court, the defendant, Robert Miranda, was convicted of (1) operating under the influence of intoxicating liquor, third offense; (2) negligent operation of a motor vehicle; and (3) operating a motor vehicle with a suspended license, subsequent offense.
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The trial judge sentenced the defendant to a split sentence wherein he would serve a period of incarceration with the balance of the sentence suspended followed by a term of probation with various conditions. After his release from incarceration, the defendant violated numerous conditions of probation. A judge (who was not the trial judge) revoked the defendants probation and ordered him to serve the balance of his suspended sentence. The defendant appeals from that order. We vacate and remand.
Background. On April 29, 2019, following his release from incarceration, the defendant signed an “Order of Probation Conditions.” On May 30, 2019, due to the defendants alleged violations of certain probation conditions, a probation detention hearing was held, and the defendant was ordered to comply with “SCRAM” testing
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as an additional condition of probation. Following a subsequent hearing on July 11, 2019, the defendant was released on additional probation conditions. On July 17, 2019, due to further alleged violations of probation conditions, the defendant was detained pending a final probation surrender hearing. On August 9, 2019, the defendant underwent a court-ordered competency evaluation pursuant to G. L. c. 123, § 15 (a). On the same date, the court clinician, Dr. John Brown, and the defendants clinical psychologist, Dr. Herbert Rothfarb, testified to their interaction with the defendant and opinions regarding his competency. The judge found, by a preponderance of the evidence, that the defendant was competent to participate in the probation violation hearing and proceedings.
Following the competency hearing, the court held a probation violation hearing at which probation officer Kevin Johnson and the defendants uncle testified. In essence, the defendant argued that he had physical and mental handicaps and a very low IQ; his ability to comply with conditions of probation had diminished since the time of his arrest; his ability to communicate was limited; his ability to understand requirements of probation conditions had diminished; and thus his violations of probation were not willful. The judge disagreed and concluded that the defendant had “committed several violations of probation,” and sentenced him to serve the balance of his sentence of incarceration.
Discussion. The defendant claims that the judge abused her discretion in finding that the defendant violated the terms of his probation and in revoking his probation. He contends that the undisputed evidence showed that he had physical and mental handicaps and hearing, communication and comprehension issues that precluded him from complying with probation conditions. See Commonwealth v. Henry, 475 Mass. 117, 121 (2016) (“A defendant can be found in violation of a probationary condition only where the violation was wilful”). With one exception, discussed infra, we disagree. The judge heard from several witnesses, including Dr. Brown, who testified that although the defendant had difficulties and challenges involving communication, “he does not exhibit substantial or significant impairments” regarding “his competence-related abilities” to participate in the probation violation hearing. The judge also considered the testimony of the other witnesses, and the defendants longstanding involvement in the criminal justice and court systems. Faced with diverging views, the judge made credibility determinations and concluded that the Commonwealth had sustained its burden of proving by a preponderance of the evidence that the defendant had willfully violated the terms of his probation. “[T]he determination of the weight and credibility of the testimony is the function and responsibility of the judge who saw the witnesses.” Commonwealth v. Sanna, 424 Mass. 92, 97 (1997), quoting Commonwealth v. Yesilciman, 406 Mass. 736, 743 (1990). The judges determination was supported by the record, and thus she did not abuse her discretion.
The Commonwealth concedes, however, that the judge abused her discretion in finding the defendant in violation of the SCRAM unit-related probationary term. Specifically, the Commonwealth acknowledges that there was no evidence to support a conclusion that the defendant was capable of correctly operating the SCRAM unit. Indeed, the evidence presented at the hearing was to the contrary. The Commonwealth further states that case law suggests that a remand is necessary for consideration of the appropriate disposition based on the remaining probation violations that were sufficiently established by the evidence. See Commonwealth v. Arroyo, 451 Mass. 1010, 1011 (2008). Although the sentence imposed by the judge was within her discretion in view of the violations properly found, the more prudent practice under the facts of this case is to vacate the order revoking the defendants probation and remand the case to the District Court for the judge to determine: (1) whether she still would have revoked the defendants probation absent the SCRAM unit-related violation, and, if so, (2) whether she would have imposed the same or a different sentence absent the SCRAM unit-related violation.
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Id.
So ordered.
Vacated and Remanded.
FOOTNOTES
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. The defendant filed an appeal, and a panel of this court affirmed the judgments in an unpublished decision pursuant to Rule 23.0 of the Rules of the Appeals Court, as appearing in 97 Mass. App. Ct. 1017 (2020). See Commonwealth v. Miranda, 97 Mass. App. Ct. 1103 (2020).
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. “SCRAM” stands for “Secure Continuous Remote Alcohol Monitor.”
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. The appellant contends that on remand the judge should order a criminal responsibility examination of the defendant pursuant to G. L. c. 123, § 15. While the judge has discretion to conduct proceedings on remand as she deems appropriate, we note that the present case involves a determination of the willfulness of the defendants violations of probation, not his criminal responsibility for the probation violations or the underlying crimes. See Henry, 475 Mass. at 121-122; Commonwealth v. Canadyan, 458 Mass. 574, 578-579 (2010). We further note that it does not appear that the defendant requested a criminal responsibility evaluation in the District Court proceedings, or gave notice of an intent to rely on such a defense. See generally Mass. R. Crim. P. 14 (b) (2), as appearing in 463 Mass. 1501 (2012). Even assuming that such a request was properly raised, the judge did not abuse her discretion in denying it.