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Commonwealth v. Kozlowski

Appeals Court of Massachusetts

June 30, 2015

Commonwealth
v.
Richard Kozlowski

Editorial Note:

This decision has been referenced in an "Appeals Court of Massachusetts Summary Dispositions" table in the North Eastern Reporter. And pursuant to its rule 1:28, As Amended by 73 Mass.App.Ct. 1001 (2009) are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 N.4, 881 N.E.2d 792 (2008).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant appeals from a District Court order revoking his probation and committing him to the balance of his suspended sentence. He argues that he was not required, as a condition of his probation, to refrain from illegal drug use and that, therefore, a positive drug screen showing cocaine use should not have been considered at his probation violation hearing; he also contends that the judge considered unreliable hearsay evidence in revoking his probation. We affirm.

On September 16, 2011, the defendant pleaded guilty to one count of operating under the influence, fourth offense; he was sentenced to two and one-half years in a house of correction, with one year to serve, with the balance suspended for three years probation. On the order of probation conditions, signed by the judge, the defendant, and the probation officer, the defendant was ordered, in pertinent part, to " [o]bey all court orders and all local, [S]tate and [F]ederal laws . . . submit to a substance abuse evaluation and treatment . . . remain drug free . . . [and] submit to random testing as required." He also was ordered to " attend [two alcoholics' anonymous meetings] (AA) per week." [1]

On October 7, 2013, the defendant was, by agreement, found to be in violation of the terms of his probation.[2] The docket sheet does not indicate what disposition resulted from that violation. However, on April 17, 2014, during a random test conducted by another District Court probation department that was charged with supervising the defendant, the defendant tested positive for alcohol and cocaine. On May 8, 2014, after a probation violation hearing, the defendant was found to be in violation of the terms of his probation based on his positive tests for both cocaine and alcohol.[3]

" In a probation revocation hearing, the issue to be determined is not guilt beyond a reasonable doubt but, rather, whether the probationer more likely than not violated the conditions of his probation." Commonwealth v. Kelsey, 464 Mass. 315, 324, 982 N.E.2d 1134 (2013). The defendant argues that the sentencing judge never ordered him to refrain from drug use and, therefore, the positive test for cocaine should not have been considered. Relying on Commonwealth v. MacDonald, 435 Mass. 1005, 757 N.E.2d 725 (2001), the defendant contends that, where the docket sheet and green sheet differ, the docket sheet (which prohibits only alcohol use) is the controlling order, rather than the order of probation terms that prohibited drug use. See id. at 1006-1007. The defendant's argument does not assist him.

First, unlike in MacDonald, where the additional " no contact" condition of probation was imposed by a probation officer and not the sentencing judge, the conditions imposed on the defendant here were ordered (and signed) by the sentencing judge. Ibid. Even if we were to agree with the defendant that he was not required to refrain from drug use as a special condition of probation, the requirement to " obey all local, [S]tate and [F]ederal laws and court orders" is a condition " imposed on all defendants who are placed on probation." Commonwealth v. Maggio, 414 Mass. 193, 194, 605 N.E.2d 1247 (1993). Based on the facts before him, the judge reasonably could infer from the positive drug test that the defendant had, at some point, illegally possessed cocaine in violation of State and Federal laws; thus violating his conditions of probation. After finding that a violation has occurred, it is then within the judge's discretion to determine " whether violation of a condition warrants revocation of probation." Commonwealth v. Malick, 86 Mass.App.Ct. 174, 178, 14 N.E.3d 338 (2014), quoting from Commonwealth v. Faulkner, 418 Mass. 352, 365 n.11, 638 N.E.2d 1 (1994).

The defendant also argues that the judge impermissibly considered unreliable hearsay evidence, namely, drug screen reports from a probation officer located in a different District Court. This argument also fails. The record indicates that the drug test was administered by the defendant's supervising probation officer, who is named, although the signature is difficult to read. The testifying probation officer told the judge that he had received the report from the " Attleboro District Court."

The " preeminent concern with respect to the evidence presented and considered at revocation proceedings is its reliability. . . . If the evidence . . . is not admissible under [standard evidentiary rules], a judge must 'independently' evaluate its reliability. . . . With respect to a defendant's right to cross-examine witnesses whose evidence is admitted through third parties, we have explained that where such evidence is found by the judge to be substantially trustworthy and reliable there is sufficient good cause to dispense with a defendant's opportunity to confront them." Commonwealth v. Thissell, 457 Mass. 191, 196, 928 N.E.2d 932 (2010).

In this case, we see no error in the hearing judge's implicit finding that the drug test record was reliable. See Commonwealth v. Ivers, 56 Mass.App.Ct. 444, 446, 778 N.E.2d 942 (2002) (" It is reasonable to assume that a probation officer on duty in [one] District Court can be reliably informed about circumstances of a violation of probation of which a supervising probation officer attached to [another] District Court has direct knowledge" ).

Order revoking probation affirmed.

Kantrowitz, Kafker & Hanlon, JJ. [4] ...


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