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Commonwealth v. Vargas

Supreme Judicial Court of Massachusetts, Essex

August 3, 2016


          Heard: November 2, 2015.

          Michael D. Cutler for the defendant.

         Philip A. Mallard, Assistant District Attorney, for the Commonwealth.

          Eva G. Jellison & David J. Nathanson, for Committee for Public Counsel Services, amicus curiae, submitted a brief.

          David A.F. Lewis, Sarah Heaton Concannon, & Robyn R. Schwartz, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief.

          Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. [1]

          HINES, J.

         In this appeal, we are asked to decide whether the medical marijuana law, St. 2012, c. 369 (act), [2] establishing immunity for the medical use of marijuana, applies in a probation surrender proceeding based on the use of marijuana, purportedly for medical purposes. The issue arises from a judge's order finding the defendant, who claimed immunity under the act, in violation of probation for the use of marijuana, terminating the probation and imposing a sentence to State prison.

         The defendant challenges the disposition and seeks a new probation surrender hearing, arguing that the sentence violates his right, as a qualifying patient under the act, to the medical use of marijuana without adverse legal consequences. He also argues that counsel was ineffective in failing to defend the probation surrender on this ground. The Commonwealth counters that the court permissibly conditioned the defendant's probation on the prohibition of any nonprescription controlled substance, and properly terminated probation for failure to comply with this and other conditions. The Commonwealth also argues that counsel was not ineffective for failing to assert the immunity provision of the act where defense counsel's decision to forgo a medical marijuana defense in favor of a plea for leniency was not manifestly unreasonable.

         We granted the defendant's application for direct appellate review. We conclude that, in the circumstances of this case, the judge committed no error in finding the defendant in violation of his probation and that, although counsel was ineffective in stipulating to the violation without raising the issue as a defense to the violation, the defendant suffered no prejudice from this lapse.


         We summarize the facts as recited by the Commonwealth at the plea hearing and stipulated to by the defendant. On October 12, 2012, the defendant entered a variety store in Haverhill, pointed what appeared to be a firearm at the clerk, and demanded money. The clerk provided approximately $400, and the defendant left the store. Information from the clerk and the defendant's mother tied the defendant to the robbery, and he subsequently confessed. The defendant told police "that he used some of that money to pay back people to whom he owed money and also used some of the money to buy marijuana."

         Based on these facts, the defendant pleaded guilty to armed robbery in April 17, 2013. During the plea hearing, the defendant admitted to the regular use of marijuana and stated that he had used marijuana during the prior twenty-four hours. In accordance with an agreed-upon recommendation, the plea judge sentenced the defendant to three years of probation, which included conditions relating to illegal drug use without a prescription and random drug testing.[3] Referencing the use of marijuana as a factor in the commission of the crime, the judge specifically informed the defendant that the prohibition on the use of illegal drugs included the use of marijuana. The judge further explained that the defendant would be required to follow all Federal, State, and local laws during the period of probation. The judge also explained, "Those laws include laws regarding possession of marijuana. So during the period of probation you would not be able to possess or use marijuana even for personal use; do you understand that?" The defendant responded, "Yes, Your Honor." After receiving this information and before sentencing, the defendant stated his explicit agreement to the condition of no marijuana use: "I would just like to say if I am put on probation Your Honor I will comply with everything that is put on me. I will comply with everything and see it through and you will not see me in court again." The judge imposed the probationary sentence with the stated conditions to take effect immediately.[4]

         On April 24, 2013, within days of the plea hearing, the defendant tested positive for marijuana. He tested positive for marijuana a second time on May 14, 2013. On May 29, 2013, the defendant secured a document from a physician entitled "Physician's Certificate for the Use of Medical Marijuana in the Commonwealth of Massachusetts Pursuant To 105 [Code Mass. Regs. §] 725" (certificate).[5] That document purported to "certify and approve [the defendant's] use of medical marijuana" for the relief of symptoms of a "debilitating medical condition."[6]

         On June 17, 2013, the probation officer issued a violation of probation notice based on the positive drug screens. The defendant appeared with counsel on August 28, 2013, for the surrender hearing. On the advice of counsel, the defendant stipulated to probation violations for the use of marijuana on April 24, May 14, May 31, and June 11, 2013, and for the use of cocaine on June 11, 2013.[7]

         Based on the facts asserted in the probation violation notice and the stipulation by the defendant, the judge found the defendant in violation of the terms of his probation and approved the agreed-upon recommendation that the defendant complete the level-three program at the Lawrence Community Correction Center[8] "with the added condition that no use of drugs, including marijuana, be part of his probation." The judge summarized the recommendation regarding drug use as follows, "Full menu, drug and alcohol free, except for prescribed medication for back condition by a licensed Massachusetts physician." The probation officer inquired whether the condition would state, "including marijuana that he's not allowed to use" and defense counsel expanded that adding the words "including marijuana" would clarify the intent that all legal or illegal use is prohibited. The judge agreed, stating, "No marijuana. Okay."

         During the hearing, defense counsel informed the judge that on May 29, 2013, the defendant acquired a certificate for the medial use of marijuana. He did not, however, offer it as a defense to the violation or request a modification of the conditions of probation on that ground. Instead, defense counsel told the judge that he had reviewed the certificate and advised the defendant that it is "not a prescription, it's a medical recommendation . . . and it [is] not okay at this point in time, based on the way the law is right now, . . . for him to use marijuana under any circumstance until it's clarified or when we're clear as to who the providers are going to be."

         After being reprobated at the August, 2013, surrender hearing and agreeing on the advice of counsel to forgo reliance on the certificate, the defendant again tested positive for marijuana, and he failed to comply with other probation conditions. The probation department issued a second violation of probation notice[9] on October 7, 2013, requiring the defendant to appear for a surrender hearing. On October 23, 2013, the defendant appeared for a hearing on the appointment of counsel. At this hearing, the probation officer requested that the defendant be detained pending the final surrender hearing, explaining that he was requesting incarceration because the defendant "continues to miss drug tests and uses marijuana" in "flagrant disregard for the rules of the program that he's been sentenced to" and shows no "effort of compliance." The judge declined the request to detain the defendant, appointed new counsel, and after receiving information about the defendant's background, [10] inquired whether the parties could fashion an alternative to surrender.

         As at the first surrender hearing, newly appointed counsel made no attempt to leverage the certificate on the defendant's behalf. He agreed to a preliminary stipulation to five violations for use of marijuana, two violations for failure to report for a drug test, and five violations for failing to report to the Lawrence Community Correction Center occurring in September and October, 2013. In his argument to the court, he explained that he had discussed the medical marijuana certificate with the defendant and informed him that it would not be a defense to the probation violation.

         The judge agreed with counsel's analysis[11] and then offered the defendant two options: (1) the judge would continue sentencing for four weeks and if the defendant did not "fully comply with every single requirement of the Level Three Program, " including that he "stop using any type of drug, including marijuana, " and "show up for every single drug test, " he would receive the full State prison sentence for armed robbery and assault; or (2) the defendant could "go in for a week, and then to the county jail, and then try to have additional terms of probation after that." The defendant acknowledged his understanding of the options and that the prohibition of marijuana use included medical and nonmedical marijuana use and, through counsel, expressed ...

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