Commonwealth v. Carlos M. Garcia Rivera.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule
1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to
the parties and, therefore, may not fully address the facts of the case or the
panel's decisional rationale. Moreover, such decisions are not circulated to
the entire court and, therefore, represent only the views of the panel that
decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued
after February 25, 2008, may be cited for its persuasive value but, because of
the limitations noted above, not as binding precedent. See Chace v. Curran, 71
Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

25-P-862

COMMONWEALTH

vs.

CARLOS M. GARCIA RIVERA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from the revocation of his probation

with respect to two separate criminal convictions, by an order

dated August 14, 2024. Probation was revoked on the basis that

the defendant had violated his probation conditions by

committing new crimes and failing to maintain contact with

probation. The defendant argues for the first time on appeal

that the judge utilized the incorrect standard in revoking

probation. Specifically, he contends that the judge revoked the

defendant's probation on the basis that there was probable cause

with respect to the new crimes, rather than, as is required,

finding by a preponderance of the evidence that they had been

committed. Commonwealth v. Wilcox, 446 Mass. 61, 65 (2006).
We review an order revoking probation for abuse of

discretion. Commonwealth v. Bukin, 467 Mass. 516, 521 (2014).

Because the defendant's argument is based only on an out-of-

context reading of the transcript, we affirm.

Discussion. The notice informing the defendant that he had

violated the conditions of his probation alleged (1) violations

of the criminal law by reference to a specific complaint out of

the Eastern Hampshire District Court, (2) failure to report as

required to his probation officer, and (3) failure to inform the

probation department of a change of address. The crimes charged

in the complaint and enumerated in the notice of violation were

(1) assault by means of a dangerous weapon, (2) malicious

destruction of property valued over $1,200, and (3) intimidation

of a witness.

At the probation revocation hearing, the defendant admitted

to each and every alleged probation violation and signed a

probation violation admission. Near the outset, the probation

officer informed the court that the criminal complaint charging

the defendant with the alleged new violations had been disposed

of by nolle prosequi.1 The judge asked the probation officer if

1 Nolle prosequi is a Latin phrase that means "not to wish
to prosecute." In this Commonwealth, a nolle prosequi, the verb
form of which is "nol pros," Del Gallo v. District Attorney for
the Suffolk Dist., 488 Mass. 1008, 1008 (2021), and of which the
past tense of the verb form is "nol prossed," Pina v.
Commonwealth, 491 Mass. 1020, 1020 (2023), is entered by the

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she knew the reason for the nolle prosequi, and the probation

officer said she did not. The defendant's counsel stated that

the named victim of those charges did not cooperate with the

Commonwealth in any way because she did not want the charges to

be brought in the first place.

The probation officer, at the judge's request, recited the

alleged facts with respect to the new crimes. It was after that

that the judge utilized, for the only time during the hearing,

the phrase "probable cause." Specifically, the judge said,

"Sir, in regards to the violations, I am finding that you
violated the terms of probation. I am including the new
offense because it's probable cause that you were arrested
on a new offense. The fact that it was nol prossed because
the victim didn't want to go forward is one thing.

"It's a different situation, [c]ounsel, if she took the
Fifth, and there was some thought that maybe the offense
hadn't occurred, but I am going to consider that."

As the judge's statements make clear, she was explaining

why in determining whether there was a violation of probation

she was going to consider the alleged new violations of the

criminal law, despite the fact that the charges had been nol

prossed. She stated that it was because there had been probable

cause to believe that the new offenses had been committed, and

because the nolle prosequi did not imply that the crimes had not

prosecutor in order to terminate the prosecution of one or more
charges. "After jeopardy attaches, a nolle prosequi entered
without the consent of the defendant shall have the effect of an
acquittal of the charges contained in the nolle prosequi."
Mass. R. Crim. P. 16 (b), 378 Mass. 885 (1979).

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occurred. This was clearly not a description of the standard

the judge used in making her findings.

As there is thus no indication the judge utilized the wrong

standard or abused her discretion, we affirm the order revoking

probation and imposing sentence.

Order dated August 14, 2024,
revoking probation and
imposing sentence,
affirmed.

By the Court (Rubin, Grant &
Hodgens, JJ.2),

Clerk

Entered: May 13, 2026.

2 The panelists are listed in order of seniority.

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