Commonwealth v. Dylan J. St. Francis.

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

23-P-724

COMMONWEALTH

vs.

DYLAN J. ST. FRANCIS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Dylan J. St. Francis, appeals from an order

of a District Court judge revoking his probation. The defendant

argues that his due process rights were violated when the judge

based the probation violation finding on information in a police

report that was unreliable hearsay. We affirm.

Background. On June 17, 2021, the defendant pleaded guilty

in the Uxbridge District Court to indecent assault and battery

and was sentenced to two years in the house of correction, with

one year to serve and the balance suspended for eighteen months.

His conditions of probation included that he obey all state

laws.
On July 17, 2022, a complaint issued in the Worcester

District Court alleging that the defendant had committed rape in

violation of G. L. c. 265, § 22 (b), and assault and battery on

a household member in violation of G. L. c. 265, § 13M (a).1 As

a result, a notice of probation violation issued in the Uxbridge

case. The probation officer summonsed the alleged victim in the

Worcester case to testify at the probation violation hearing.

The probation violation hearing was held on October 5,

2022. The probation officer testified that the alleged victim

in the Worcester case was unable to attend because she was

living in New Hampshire and had difficulty obtaining

transportation. The probation officer asked to submit a police

report in evidence; the defendant objected, arguing that it was

not reliable. The judge found that the police report was

factually detailed and reliable. The judge concluded that the

defendant had violated his probation by violating a criminal

law, noting the docket number of the Worcester case. On the

probation violation finding and disposition form, the judge

indicated the basis for the violation by checking the box next

to the words "PROBATIONER'S ADMISSION." On the same form, the

judge did not check the boxes next to the option that the

finding of a violation was based on testimonial, documentary, or

1 That complaint involved a different alleged victim from
the one in the Uxbridge case.

2
hearsay evidence. The judge revoked the defendant's probation

and sentenced him to one year in the house of correction.2

On February 24, 2023, on the Worcester District Court

complaint, the defendant pleaded guilty to so much of the count

for assault and battery on a household member as alleged assault

and battery, and by agreement of the parties was sentenced to

one year probation. As to the count alleging rape, it was

amended to indecent assault and battery and dismissed. The

tender of plea form noted that the probation officer objected to

the disposition. It set forth the judge's reasons for the

disposition as "Victim has left state & did not appear at VOP.

Comm. represents she doesn't want to further prosecute & wants

prob[ation]."

Discussion. The defendant argues that the judge improperly

based the finding of a probation violation on unreliable hearsay

in the police report.3 The judge's findings make clear that he

revoked the defendant's probation based on the defendant's

2 At oral argument, defense counsel informed the panel that
the defendant has completed serving that sentence.

3 To the extent that the defendant argues that the testimony
of the alleged victim in the Worcester case was "necessary" at
the probation violation hearing, he waived that argument because
he did not seek to call her to testify. Contrast Commonwealth
v. Costa, 490 Mass. 118, 131 (2022) (judge erred in precluding
defendant from calling sexual assault victim to testify at
probation violation hearing).

3
admission that he "pushed" the victim, which, as the defendant

later admitted at the plea, amounted to an assault and battery.4

We review a judge's finding of a probation violation for

abuse of discretion. See Commonwealth v. Durling, 407 Mass.

108, 111-112 (1990). To decide whether there was an abuse of

discretion, we must determine "whether the record discloses

sufficient reliable evidence to warrant the findings by the

judge, by a preponderance of the evidence, that the probationer

had violated the specified [probation] conditions" (citation and

alterations omitted). Commonwealth v. Jarrett, 491 Mass. 437,

440 (2023). If a defendant's probation is revoked "based solely

on hearsay evidence, the proffered hearsay must have

'substantial indicia of reliability' to satisfy the good cause

requirement" for proceeding without a witness with personal

knowledge of the evidence. Commonwealth v. Costa, 490 Mass.

118, 124 (2022), quoting Commonwealth v. Hartfield, 474 Mass.

474, 484 (2016). See Rule 7(b) of the District Court Rules for

Probation Violation Proceedings (2015). To determine whether

4 Because we conclude that the police report contained
reliable hearsay, we do not reach the Commonwealth's argument
that the defendant's subsequent plea to assault and battery
rendered moot his claim that the judge impermissibly considered
unreliable hearsay at the probation violation hearing. See
Commonwealth v. Milot, 462 Mass. 197, 201 (2012).

4
hearsay has "substantial indicia of reliability," a judge may

consider

"(1) whether the evidence is based on personal knowledge or
direct observation; (2) whether the evidence, if based on
direct observation, was recorded close in time to the
events in question; (3) the level of factual detail; (4)
whether the statements are internally consistent; (5)
whether the evidence is corroborated by information from
other sources; (6) whether the declarant was disinterested
when the statements were made; and (7) whether the
statements were made under circumstances that support their
veracity."

Hartfield, supra at 484.

At the probation violation hearing, the judge found that

the Worcester police report was "factually detailed and

reliable." The police report documented that the defendant's

brother called the police and reported that while on the

telephone with the defendant, the brother heard arguing; the

brother reported that the defendant was drunk and aggressive.

Responding officers spoke to the defendant, who admitted that he

and his "girlfriend" had been drinking alcohol with others

present. The defendant told police that he pushed his

girlfriend to try to get her outside so they could discuss the

matter privately. The officers then spoke to the alleged

victim, who reported that the defendant pushed her once in the

shoulder or chest area with both hands. After police arrested

the defendant and placed him in a patrol wagon, the alleged

victim disclosed that the defendant had also raped her.

5
We conclude that the judge did not abuse his discretion in

determining that the police report contained substantial indicia

of reliability warranting the judge to find by a preponderance

of the evidence that the defendant had violated the probation

condition not to violate the criminal laws. The police report

documented statements from three witnesses: the defendant's

brother, the defendant, and the alleged victim. Contrary to the

defendant's argument the mere fact that those three witnesses'

statements were contained in a single police report did not make

their statements any less reliable. Those statements were made

soon after the events they described. The statements were

detailed, and each corroborated the statements of the other two

witnesses. Indeed, the defendant's own statement contained an

admission to assault and battery.5 Cf. Commonwealth v. Simon, 57

5 Of course, without the police officer present to testify,
the police report containing the defendant's admission
constituted hearsay. Here, however, it was reliable hearsay
under the Hartfield test.

6
Mass. App. Ct. 80, 85-86 (2003) (violation based in part on

probationer's own admission contained in police reports).

Order revoking probation
affirmed.

By the Court (Henry, Grant &
D'Angelo, JJ.6),

Assistant Clerk

Entered: July 31, 2024.

6 The panelists are listed in order of seniority.

7