Supreme Judicial Court of Massachusetts, Franklin
Heard: September 6, 2018.
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,
Supreme Judicial Court on its own initiative transferred the
case from the Appeals Court.
Gauthier for the defendant.
H. Townsend, Assistant District Attorney, for the
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.
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.
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
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. 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
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
summarize the course of the probationary violations over the
next three years as follows.
January 2014, one month after the initial continuance was
imposed, the probation service filed its first notice of
violation. 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.
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,  and that ...