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Commonwealth v. Gibson

Supreme Judicial Court of Massachusetts, Hampden

July 13, 2016


          HEARD: March 8, 2016

         Indictments found and returned in the Superior Court Department on February 22, 2006. A hearing on an order to show cause why the defendant should not be deemed to have forfeited his right to counsel at a probation revocation proceeding was had before C. Jeffrey Kinder, J., and a proceeding for revocation of probation was heard by Richard J. Carey, J.

         After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.

          Glynis Mac Veety for the defendant.

          Bethany C. Lynch, Assistant District Attorney, for the Commonwealth.

          Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.

          HINES, J.

         The principal issue in this appeal is whether a Superior Court judge properly ordered the forfeiture of the defendant's right to counsel in a probation revocation hearing. The judge, faced with a defendant who admittedly engaged in a pattern of quarrelsome, confrontational, hostile, and threatening conduct toward a succession of nine different court-appointed attorneys over the course of the trial and posttrial proceedings, ordered forfeiture on those grounds. Subsequent to the forfeiture order, the defendant appeared pro se at the probation revocation hearing. A different judge found the defendant in violation of probation and sentenced him to State prison for a term of not less than seven years and not more than eight years, from and after the sentence he was then serving. The defendant appealed, claiming error in the forfeiture order and the probation revocation hearing. The Appeals Court affirmed, Commonwealth v. Gibson, 87 Mass.App.Ct. 829, 835 (2015), ruling that the judge had provided the defendant a full and fair opportunity to be heard on forfeiture and that the forfeiture order had been warranted based on the defendant's pattern of threats to counsel. The Appeals Court also rejected the defendant's claims related to the probation revocation hearing.

         We granted the defendant's application for further appellate review to consider whether the forfeiture order, based on the defendant's pattern of hostile and threatening conduct toward counsel, warrants forfeiture under the guidelines we articulated in Commonwealth v. Means, 454 Mass. 81 (2009) . Although we appreciate the imperative to force an end to the defendant's interference with the timely and fair disposition of the probation revocation matter, we are constrained to conclude that the forfeiture order must be reversed, as it does not comply with the strict guidelines we adopted in Means, supra. Therefore, we vacate the forfeiture order based on our conclusion that (1) the forfeiture hearing did not meet the procedural due process requirements of Means; and (2) the defendant's conduct, although egregious in many respects, did not warrant forfeiture under the guidelines established in Means.


         We describe the details of the proceedings leading to the judge's forfeiture order and the subsequent probation violation hearing. In 2006, the defendant was indicted on three charges of indecent assault and battery on a child under fourteen, G. L. c. 265, § 13B. Six attorneys were appointed to represent the defendant during the trial proceedings. The third of these trial attorneys withdrew for a number of reasons, including the defendant's written threat to counsel that "street justice" would prevail if he were convicted. The sixth attorney represented him during trial. He was convicted on two of the three indictments in 2008.[1] The victim was his daughter. The trial judge sentenced the defendant to a term of not less than eight years and not more than ten years in State prison on the first indictment, and to probation for fifteen years on the second indictment, to run concurrently with the sentence on the first indictment. As a condition of probation, the judge ordered the defendant to have no contact, direct or indirect, with the victim or the victim's mother (his ex-wife).

         On September 14, 2011, the probation department issued a probation violation notice alleging that the defendant had violated the no-contact condition by sending sexually explicit letters to the victim from prison.[2] Prior to the probation revocation hearing and after the appointment of three different attorneys to represent the defendant in that matter, a judge issued an order to the defendant to show cause why his right to counsel should not be deemed forfeited. On February 27, 2013, the day after the issuance of the show cause order, the judge conducted the hearing and made findings and rulings summarized below.

         1. The succession of posttrial appointed counsel.

         On September 29, 2011, the court appointed an attorney from the Committee for Public Counsel Services to represent the defendant at the probation revocation hearing. On March 19, 2012, this attorney filed a motion to withdraw with an affidavit detailing the defendant's threats to file a complaint against the attorney with the Board of Bar Overseers (board) unless counsel adopted the defense strategies proposed by the defendant. A judge allowed the motion to withdraw and, on March 30, 2012, appointed a second attorney to represent the defendant. On June 21, 2012, this attorney filed a motion to withdraw, citing a breakdown in the attorney-client relationship, and further specifying the defendant's conduct in an impounded affidavit.[3] A second judge allowed the motion to withdraw. On June 28, 2012, that judge considered the defendant's motion for appointment of a third postconviction attorney and allowed the motion. During the course of the hearing, however, the probation officer reminded the judge that the matter had been pending since 2011 and opined that the delay was caused by the withdrawal of the defendant's two prior attorneys. The defendant's newly appointed counsel then assured the judge that despite this history, he would be able to "take care of" the defendant. The following exchange took place between the judge and the defendant:

         Judge: "You know what, [counsel]? I know you'll be able to take care of him, because if you can't take care of him, he's going to have to take care of himself.

         "Mr., Mr. . . .I'm talking to you, Sir. So look at me and listen.

         "I, I read prior counsel's affidavit and I was troubled by the contents of her affidavit. You will not get another attorney appointed to represent you, do you understand me, Sir?"

         Defendant: "If they don't do me justice, I can't keep them on. So, that's why I had to . . ."

         Judge: "Do you understand? It's a yes or no. Do you understand?"

         Defendant: "Yes."

         Several months later, on September 4, 2012, the defendant filed a motion for the appointment of a fourth attorney. The third attorney, who earlier had expressed optimism about his ability to represent the defendant, filed a motion to withdraw on September 10. On September 13, 2012, a third judge held a hearing during which he allowed the motion to withdraw but ordered that the attorney serve as standby counsel for the probation revocation hearing.[4] The relationship between counsel and the defendant apparently deteriorated even further, as counsel filed a second motion to withdraw on February 26, 2013. In response to this second motion to withdraw, that judge issued an order to show cause why the defendant should not be deemed to have forfeited his right to counsel. The judge then appointed a different attorney to represent the defendant at the show cause hearing scheduled for the following day.[5]

         On February 27, 2013, the day after the issuance of the show cause order, the judge held the hearing, at which he considered two issues: whether to allow counsel's motion to withdraw; and if so, whether the defendant's conduct warranted a forfeiture of the right to counsel. As to the first issue, the judge inquired of the defendant whether he wished to be heard on counsel's motion to withdraw. The defendant replied that he had no desire to have counsel withdraw, but he admitted that he had threatened to report counsel to the board. According to the defendant, he believed the threat to report counsel to the board and to the office of the Attorney General was appropriate because counsel's legal advice to cease writing letters to the victim in violation of his probation was causing him "undue stress." In particular, the defendant complained that counsel had lied in advising that the defendant could be subject to "life in prison" as a consequence of the charge of which he was convicted.[6] He also disagreed with counsel's advice that the victim did not wish to have contact with him and that his letter-writing to her was a violation of probation. Last, the defendant expressed frustration that although he had other reasons to be dissatisfied with counsel, he was unable to articulate those reasons at that time because he had been "diagnosed with a brain tumor deep in [his] brain that's . . . inoperable [causing him to have] a little trouble . . . putting things into words." After noting that much of the defendant's recitation was consistent with counsel's affidavit in support of the motion to withdraw, the judge allowed the motion and proceeded to the forfeiture issue.

         In commencing this stage of the hearing, the judge signaled his awareness of the obligation to grant an evidentiary hearing on whether, by engaging in the apparently undisputed pattern of threats against a succession of appointed counsel, the defendant forfeited his right to counsel for the probation revocation hearing. At the judge's invitation, counsel -- who minutes earlier had been allowed to withdraw from representation of the defendant -- detailed the reasons for his motion to withdraw. According to counsel, the motion was prompted by a letter from the defendant threatening to file complaints against him with the board and the office of the Attorney General. In response to questioning from the prosecutor and the defendant's newly appointed counsel, the attorney disclaimed any knowledge of the defendant's mental health issues except for what he had been told by the defendant in the days preceding the hearing. He acknowledged, however, that over the course of his representation, the defendant had engaged in conduct against his advice, including sending the letters to the victim, and that the defendant's behavior was not "logical" and "not in his best interest."

         Neither the defendant's new counsel nor the prosecutor presented evidence at the hearing. Defense counsel, however, advised the judge that he had met with the defendant "for over an hour in the back and [he] was not able to get very far." Counsel described the defendant as being "highly agitated." Without directly addressing the merits of the forfeiture issue, counsel expressed concern with the propriety of forfeiture given what appeared to be the defendant's current mental state and the long-term consequences of a probation revocation hearing without the assistance of counsel.[7] Counsel repeated what he had been told by the defendant regarding the recent diagnosis of a "brain tumor, " raising the possibility that the defendant's conduct was caused by a mental disability rather than by purposeful oppositional behavior. Counsel then argued that prior to a hearing on forfeiture, the better course was to require ...

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