Heard: October 4, 2017.
found and returned in the Superior Court Department on
September 2, 1999.
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
Gross Marmor for the defendant.
A. Cusick, Assistant District Attorney, for the Commonwealth.
Present: Green, Hanlon, & Neyman, JJ.
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.
Convictions and alleged probation violations.
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. The defendant was released from custody in
September, 2010, and began serving the twelve-year probation
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
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.
Final probation violation hearing.
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 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,  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