Commonwealth v. Anthony Calhoun.

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

24-P-110

COMMONWEALTH

vs.

ANTHONY CALHOUN.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Anthony Calhoun, pleaded guilty in Superior

Court to three counts of unarmed robbery, G. L. c. 265,

§ 19 (b). The plea judge imposed a two-year term of probation

on two of those counts, to be served after the defendant's

release from a committed sentence on the other count. The

defendant now appeals from an order revoking his probation.

Concluding that there was adequate evidence to support the

findings of a probation violation and that the record in this

direct appeal fails to demonstrate that defense counsel was

ineffective, we affirm.

1. Proof of probation violations. "A determination

whether a violation of probation has occurred lies within the
discretion of the hearing judge." Commonwealth v. Bukin, 467

Mass. 516, 519-520 (2014). The question is whether the

defendant "more likely than not violated the conditions of his

probation," Commonwealth v. Kelsey, 464 Mass. 315, 324 (2013),

and it is "the exclusive province of the hearing judge to assess

the weight of the evidence." Bukin, supra at 521. Accordingly,

"we uphold a judge's finding of a probation violation if it is

supported by a preponderance of the evidence." Commonwealth v.

Sargent, 98 Mass. App. Ct. 27, 29 (2020).

Here, the hearing judge found the defendant violated five

terms of his probation. The defendant challenges the adequacy

of the evidence for two of these violations, his failure to make

his whereabouts known to his probation officer and his

commission of a new criminal offense.1 At a probation violation

hearing, "[t]he Commonwealth must prove a violation of probation

by a preponderance of the evidence." Bukin, 467 Mass. at 520.

1 The defendant does not contest his failure to attend the
final probation violation hearing on September 6, 2022.
Although the defendant in his brief addresses his failure to
remain drug free and his failure to comply with drug testing, he
does not challenge the finding of violation so much as argue
that such violations would not, by themselves, warrant
revocation. In any event, although there was ample evidence
that the defendant failed or missed required drug testing, there
is no indication that the hearing judge gave undue weight to
these violations or would have even considered revocation based
on these violations alone.

2
The Commonwealth presented ample evidence that the

defendant's whereabouts were unknown to probation. The

defendant's probation officer testified that he was unaware of

the defendant's whereabouts between June 20, 2022, and September

6, 2022. Although the defendant was able to provide

documentation accounting for his whereabouts through August 12,

2022, he failed to offer any verification for his claims that he

subsequently resided in a sober home and was hospitalized prior

to his arrest on September 6, 2022. Similarly, although the

judge credited that the defendant telephoned his probation

officer in late August and early September, the defendant never

provided the verification of his whereabouts as his probation

officer requested. Moreover, the defendant failed to attend his

required, in-person biweekly meeting with his probation officer

at any point in either August or September. Accordingly, the

evidence supported the judge's findings that the defendant's

whereabouts were unknown between August 12 and September 6,

2022.

"To establish a probation violation based on a criminal

offense, the Commonwealth must prove each element of the offense

by a preponderance of the evidence." Commonwealth v. Gelin, 494

Mass. 777, 784 (2024). Here, the Commonwealth presented

adequate evidence that the defendant committed the crimes of

armed robbery and strangulation or suffocation on August 18,

3
2022. At the hearing, the Commonwealth admitted in evidence the

police report filed on the day of the incident, and a detective

testified to what the victim told her. The detective described

how the victim told her that the victim, the defendant, and a

woman entered a Downtown Crossing MBTA station elevator before

the defendant grabbed and held the victim's neck while the woman

stole items from the victim. This recounting matched and

expanded on the initial story the victim provided to the police

in the report filed on the day of the incident.2 Moreover, video

footage and photo stills presented by the Commonwealth captured

portions of the incident, corroborating the victim's statements

and police report that the defendant held the victim around the

neck while a woman stole personal items from him. The hearing

judge cited this corroboration as one of the factors supporting

his findings that the victim's statements and admitted police

report were reliable hearsay.3 In sum, there was adequate

evidence that the defendant violated his probation by committing

The victim told police on the day of the offense that the
2

defendant threatened him with a knife but he could not remember
if the defendant showed him the knife.

"[W]here a judge relies on hearsay evidence in finding a
3

violation of probation, the judge should set forth in writing or
on the record why the judge found the hearsay evidence to be
[substantially] reliable." Commonwealth v. Rainey, 491 Mass.
632, 648 (2023), quoting Commonwealth v. Hartfield, 474 Mass.
474, 485 (2016). Here, the judge provided adequate reasoning on
the record for his finding that the police report and victim's
statements were reliable.

4
armed robbery and strangulation or suffocation on August 18,

2022.

The defendant's argument that the judge should not have

considered his new criminal offense because the Commonwealth

dismissed the charges the following month is unavailing. "Where

a complaint criminally charging a defendant for conduct that

also underlies his or her notice of a probation violation is nol

prossed, the conduct remains a valid basis for a probation

violation proceeding." Commonwealth v. Williams, 102 Mass. App.

Ct. 626, 629 (2023). Here, the defendant's new offense was open

at the time of the hearing, and the prosecutor told the hearing

judge that she intended to present the charges to a grand jury.

Moreover, the Commonwealth presented ample evidence through the

admitted police report, video footage, photo stills, and the

victim's statements to prove by a preponderance of the evidence

that the defendant committed the charged offenses. See id.

("focus of a probation violation hearing where the violation

alleged is the commission of a new offense is the defendant's

conduct, not a criminal complaint based on that conduct").

2. Ineffective assistance of counsel. "To sustain a claim

of ineffective assistance of counsel, the defendant must show

that the behavior of counsel fell below that of an 'ordinary

fallible lawyer' and that such failing 'likely deprived the

defendant of an otherwise available, substantial ground of

5
defence.'" Commonwealth v. Bowen, 92 Mass. App. Ct. 793, 798

(2018), quoting Commonwealth v. Saferian, 366 Mass. 89, 96

(1974). The defendant did not raise the issue of ineffective

assistance of counsel in any posthearing motion but does so now

on direct appeal. As "our courts strongly disfavor raising

claims of ineffective assistance on direct appeal," Commonwealth

v. Zinser, 446 Mass. 807, 811 (2006), such claims "should only

be brought on direct appeal when the factual basis of the claim

appears indisputably on the trial record." Commonwealth v.

Keon K., 70 Mass. App. Ct. 568, 573-574 (2007).

Here, the defendant asserts that his hearing counsel was

ineffective given her failure to obtain and present medical

records that purportedly explained the defendant's whereabouts

after August 12, 2022. This claim fails to meet the narrow

exception for a direct appeal, as the involved medical records

are not part of the hearing's record.4 Even if such records were

properly before us, they fail to explain the defendant's

whereabouts, as they cover only a portion of the period between

August 12 and September 6, 2022. Moreover, the medical records

fail to explain the defendant's inability to provide requested

verification to his probation officer or his failure to attend

4 The defendant included medical records with his brief but
acknowledged they are not properly before the court.

6
his required, in-person biweekly meetings in August or

September. Accordingly, the defendant's claim of ineffective

assistance of counsel is unpersuasive without a motion for a new

hearing supported by affidavits and evidence.

Order revoking probation and
imposing sentence affirmed.

By the Court (Ditkoff,
Grant & Toone, JJ.5),

Clerk

Entered: February 5, 2025.

5 The panelists are listed in order of seniority.

7