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Commonwealth v. King

Appeals Court of Massachusetts, Essex

December 12, 2019


          Heard: September 10, 2019.

          Indictments found and returned in the Superior Court Department on December 11, 2014. A proceeding for revocation of probation was heard by Thomas Drechsler, J.

          Matthew Malm for the defendant.

          Kristen W. Jiang, Assistant District Attorney, for the Commonwealth.

          Present Wolohojian, Hanlon, & Agnes, JJ.

          WOLOHOJIAN, J.

         The defendant's probation was revoked by a Superior Court judge who found that the defendant had violated two conditions of his probation. On appeal, the Commonwealth acknowledges that the defendant's conduct did not violate the terms of one of those two conditions, while the defendant acknowledges that the evidence was sufficient to find that he violated the other one. The issue before us is whether, in the circumstances presented, the matter must be remanded for resentencing. For the reasons set out below, we conclude that it must.


         The defendant pleaded guilty on June 2, 2015, to possession of child pornography. During the plea colloquy, the defendant admitted that he had downloaded many images and video recordings of child pornography, and that he had possessed a number of Polaroid photographs of his young relative in various stages of nudity, focusing on her genitalia and in some cases depicting her masturbating. The defendant was sentenced to five years of probation.[1] His probationary terms included special conditions proposed by the district attorney's office and adopted verbatim by the judge. They included the following four provisions:

"(2) The probationer shall refrain from deliberately engaging in unsupervised direct or indirect contact with any child under the age of eighteen (18), in any way, including but not limited to physical contact, auditory contact, and electronic contact (e.g., chat rooms, bulletin boards, electronic mail, etc.) .
"(3) The probationer shall not access any internet services from any handheld device (e.g., Palm Pilots, Blackberries, and mobile telephones) and he shall disclose to Probation whether he presently possesses any of these devices or acquires any one or more of them in the future.
"(4) The probationer shall not use, enter, visit, participate in, or remain in any online chat room, bulletin board service, message board service, social networking site or service (for example,,,, or any other online communication service, with the sole exception of electronic mail. The probationer shall not disguise or attempt to disguise his identity or his address while accessing any online service.
". . . .
"(6) The probationer immediately shall disclose the names of all online services (e.g., an Internet service, an Internet Service Provider, an electronic bulletin board, an electronic news group, etc.), electronic mail providers, screen names, and passwords that he currently uses, and shall constantly continue to disclose these names and any new such information to Probation."

         There was a discussion during the plea colloquy about the difference in scope between special conditions three and four. Defense counsel urged that special condition three, which restricted all access to the Internet from handheld devices, be limited to the scope of special condition four, which only restricted use of social media. The prosecutor disagreed, noting the difficulty of effectively monitoring a lesser restriction on portable handheld devices. The judge then inquired of the prosecutor whether, in contrast to special condition three (which prohibited all use of the Internet), special condition four would prohibit only access to social media. The prosecutor confirmed this intended distinction between the two conditions. The discussion concluded with the judge stating, "I just want to make sure that Mr. King understands . . . that it's only the handheld device that would be subject to this bigger prohibition."

         On May 11, 2017, the probation department alleged that the defendant had (1) violated special condition two by failing "to refrain from deliberately engaging in unsupervised direct/indirect contact with minor children," (2) violated special condition four by failing "to refrain from use of [the] internet for purposes other than that of business or personal email," and (3) violated special condition six by failing "to disclose [the] names of all online services/email providers and email accounts to probation."[2] It should be noted at this juncture that the defendant's alleged violation of special condition four (i.e., failing "to refrain from ...

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