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
Present Wolohojian, Hanlon, & Agnes, JJ.
defendant's probation was revoked by a Superior Court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
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. 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, Facebook.com, Twitter.com,
Instagram.com), 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."
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
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." It should be noted at this juncture that
the defendant's alleged violation of special condition
four (i.e., failing "to refrain from ...