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Commonwealth v. Johnson

Appeals Court of Massachusetts, Bristol

September 14, 2018

COMMONWEALTH
v.
HENRY JOHNSON.

          Heard: April 10, 2018.

         Indictments found and returned in the Superior Court Department on October 19, 2011.

         A proceeding for revocation of probation was heard by Renee P. Dupuis, J., and a motion to withdraw a stipulation was also heard by her.

          Xiomara M. Hernandez for the defendant.

          Tara L. Johnston, Assistant District Attorney, for the Commonwealth.

          Present: Agnes, Massing, & Neyman, JJ.

          AGNES, J.

         In Commonwealth v. Sayyid, 8 6 Mass.App.Ct. 479, 489 (2014), this court held that in order for an admission to a violation of probation and a waiver of the right to a revocation hearing to be valid, the record must demonstrate that, in the totality of the circumstances, the defendant's decision was made knowingly and voluntarily. The question before us is whether the judge was correct in denying the defendant's motion to withdraw his admission to violations of his probation based on his claim that he was misinformed by his attorney about the potential maximum sentence that the judge would impose if the judge revoked his probation. For the reasons that follow, we agree with the judge that the defendant's admission and his waiver of the right to a probation violation hearing were made knowingly and voluntarily. Accordingly, we affirm.

         Background.

         1. The defendant's guilty pleas.

         On December 20, 2013, the defendant pleaded guilty to indictments charging as follows: one count of rape of a child, three counts of indecent assault and battery on a child under the age of fourteen, and one count of dissemination of obscene matter to a minor. He was sentenced to concurrent terms of from three years to three years and one day in State prison on two of the counts of indecent assault and battery, and two years of probation on the remaining three counts, including the charge of rape of a child, to be served upon release from State prison. The terms of the defendant's probation required that he wear a global positioning system (GPS) monitoring device, attend and successfully complete sex offender counselling, report to a probation officer, stay away from the victim, register as a sex offender, and have no unsupervised contact with children under the age of sixteen.

         Briefly, the facts underlying the charges to which the defendant pleaded guilty are that in 2010, the victim, a child under the age of fourteen, disclosed to her maternal grandmother that on diverse dates when she was between the ages of five and eight the defendant, her mother's then live-in boy friend, sexually assaulted her. Among other things, the victim disclosed that the defendant put his fingers in her vagina and forced her to put his penis in her mouth.

         2. Final probation violation hearing.

         Upon his release from State prison on September 16, 2014, the defendant began his two-year period of probation. Because he wished to reside with his mother in New Bedford, supervision of his probation was transferred from Suffolk County to Bristol County. A notice of violation of probation and an arrest warrant issued on October 9, 2014, because the defendant had failed to report to his probation officer, was not residing at the address he had provided to the probation department and the Sex Offender Registry Board, had failed to attend an outpatient sex offender treatment program, and had removed his GPS monitoring bracelet. Additionally, after the defendant was released from prison, the victim saw him in the same store where she was shopping with her ...


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