Heard: April 10, 2018.
found and returned in the Superior Court Department on
October 19, 2011.
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.
L. Johnston, Assistant District Attorney, for the
Present: Agnes, Massing, & Neyman, JJ.
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.
The defendant's guilty pleas.
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.
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.
Final probation violation hearing.
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 ...