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Commonwealth v. Plasse

Supreme Judicial Court of Massachusetts, Franklin

January 10, 2019


          Heard: September 6, 2018.

         Complaint received and sworn to in the Orange Division of the District Court Department on September 26, 2013. A motion for release from unlawful restraint and for a new sentencing hearing, filed on March 31, 2017, was heard by David S. Ross, J.

         The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

          Edward Gauthier for the defendant.

          Thomas H. Townsend, Assistant District Attorney, for the Commonwealth.

          Lisa Newman-Polk, for Committee for Public Counsel Services & others, amici curiae, submitted a brief.

          Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

          LENK, J.

         "Few, perhaps no, judicial responsibilities are more difficult than sentencing. The task is usually undertaken by trial judges who seek with diligence and professionalism to take account of the human existence of the offender and the just demands of a wronged society." Commonwealth v. Rodriguez, 461 Mass. 256, 259 (2012), quoting Graham v. Florida, 560 U.S. 48, 77 (2010). While the exercise of this "quintessential judicial power" is never an easy task, Rodriguez, supra at 266, it is made all the more difficult when the crime and subsequent noncompliance with probation are related to the effects of drug addiction.

         The issue here arises from the judge's imposition of a sentence of incarceration following the defendant's repeated addiction-related violations of probation over a period of several years. The defendant requested the sentence in order to participate in a secure residential drug treatment program, but, after several months of serving her sentence, sought release from the alleged unlawful restraint, as well as a new sentencing hearing. She now appeals from the denial of the motion she filed pursuant to Mass. R. Crim. P. 30, as appearing in 435 Mass. 1501 (2001); the defendant contends that the judge erred in considering the rehabilitation program when setting the length of her sentence of incarceration. We conclude that in the circumstances presented, the judge did not abuse his discretion.[1]

         1. Background.

         a. Initial disposition.

         In August 2013, the defendant stole items valued at more than $250 from a chain department store. A complaint issued approximately one month later charging her with larceny, in violation of G. L. c. 266, § 30 (1), and with using disguises to obstruct execution of the law, in violation of G. L. c. 268, § 34. At a plea colloquy, the defendant admitted to sufficient facts to warrant a finding of guilt with respect to the larceny charge.[2] The judge then continued the matter without a finding for one year, from December 2013 through December 2014. Upon the successful completion of the one-year period of probation, the charge was to be dismissed.[3]

         At that time, the defendant was twenty-one years old. The continuance was conditioned on the successful completion of two programs: "Stoplift," an Internet-based program designed to prevent shoplifting recidivism, and a program involving intensive supervision by the probation service known as level three "community corrections." The latter includes office visits, group meetings, and drug and alcohol screenings.

         b. Probationary violations.

         We summarize the course of the probationary violations over the next three years as follows.

         In January 2014, one month after the initial continuance was imposed, the probation service filed its first notice of violation.[4] The notice related to the defendant's noncompliance with the requirements of the community corrections program and her failure to pay court-ordered fees. A second notice of violation was filed in March 2014, following a drug screening in which the defendant tested positive for the presence of tetrahydrocannabinol (THC). At a hearing concerning both of these violations, the defendant, represented by counsel, stipulated to the underlying facts. The defendant was found in violation of the terms of probation and reprobated, and the continuance -- as it was initially imposed -- remained in effect.

         In April 2014, the defendant reported to the probation service and her drug screen returned a positive result for the presence of THC and cocaine. Approximately one week later, the defendant again tested positive for the presence of THC and cocaine, as well as for amphetamine and morphine. The probation service filed its third and fourth notices of violation. Counsel was appointed, and the defendant was held pending a final violation hearing. At the final violation hearing in May 2014, the judge again found the defendant in violation of the terms of probation. This time, he modified the terms of probation, requiring a substance abuse evaluation, a mental health evaluation, that the defendant remain drug and alcohol free, [5] and that ...

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