Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Commonwealth v. Bowen

Appeals Court of Massachusetts, Norfolk

February 23, 2018

COMMONWEALTH
v.
JAMES M. BOWEN.

          Heard: October 4, 2017.

         Indictments found and returned in the Superior Court Department on September 2, 1999.

         A proceeding for revocation of probation was heard by Thomas A. Connors, J.; a motion to reconsider was considered by Douglas Wilkins, J.; and a motion for a new hearing was heard by Connors, J.

          Stacey Gross Marmor for the defendant.

          Tracey A. Cusick, Assistant District Attorney, for the Commonwealth.

          Present: Green, Hanlon, & Neyman, JJ.

          NEYMAN, J.

         In Commonwealth v. Sayyid, 8 6 Mass.App.Ct. 479 (2014), this court held that a defendant's agreement to waive a probation violation hearing must be knowing and voluntary. Id. at 480, 489. Here, we are asked to determine whether a defendant's stipulation during a probation violation hearing to two alleged violations constituted a breach of due process within the meaning of Sayyid. We hold that the stipulation did not fall within the ambit of Sayyid, and we discern no due process violation. Accordingly, we affirm.

         Background.

         1. Convictions and alleged probation violations.

          In 2001, the defendant pleaded guilty in Superior Court to six counts of aggravated rape. He was sentenced to concurrent terms of eight to ten years in State prison on the first five counts, and a twelve-year sentence of probation to be served from and after the State prison sentences on the sixth count.[1] The defendant was released from custody in September, 2010, and began serving the twelve-year probation sentence.

         In June, 2013, the defendant was issued a "Notice of Surrender and hearing(s) for alleged violation(s) of Probation" (notice of probation violation). He stipulated that he had violated the probation conditions, and his probation was extended for an additional year with modified conditions. In October, 2013, the defendant was issued another notice of probation violation. Following a probation violation hearing in December, 2013, the defendant was again found to have violated the probation conditions, but he was still not incarcerated. Instead, his probation was further extended to 2030 with added conditions. On April 16, 2014, a third notice of probation violation was issued and served upon the defendant while he was at the Superior Court for a matter relating to his probation. As the defendant was not present when his case was called, a warrant issued for his arrest.[2]

         On May 29, 2014, the defendant was arrested in Florida as a fugitive from justice. At the time of his arrest he was neither wearing a global positioning system (GPS) monitoring device nor had permission to leave the Commonwealth, as the terms of his probation required. In June, 2014, a fourth notice of probation violation issued, alleging eleven separate violations of probation conditions.[3]

         2. Final probation violation hearing.

         A Superior Court judge (sentencing judge) held a two-day probation violation hearing in January, 2015. At the outset of the hearing, the sentencing judge held a sidebar discussion with the probation officer[4] and defense attorney to ascertain whether the matter was "resolvable." The probation officer stated that the guidelines called for a sentence of twelve to eighteen years in State prison. Defense counsel stated that at a prior appearance, a different Superior Court judge had suggested that a sentence of five to six years would be appropriate. Defense counsel also stated that the defendant would stipulate to having left the Commonwealth and removing the GPS monitoring device from his leg, [5] but that the other technical violations of probation were at issue. The sentencing judge replied, inter alia, that "the [d]efendant apparently wants to dispute all or many of the violations alleged." The sentencing judge further stated: "[W]hat [the prior judge] proposed as a potential [sentence] did make some sense. But if ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.