Commonwealth v. Jonathan M. Arce.

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-118

COMMONWEALTH

vs.

JONATHAN M. ARCE.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Jonathan M. Arce, appeals from orders

revoking his probation and denying his motions for

reconsideration issued by a judge in the drug court session of

the District Court.1 The defendant argues that the judge

impermissibly considered the nature of the probation violations

because they amounted to uncharged conduct, and that the judge

1See Deputy Chief Counsel for the Pub. Defender Div. of the
Comm. for Pub. Counsel Servs. v. Acting First Justice of the
Lowell Div. of the Dist. Court Dep't, 477 Mass. 178, 179-181
(2017) (describing drug court model and its "underlying
philosophy that drug court defendants must exhibit an
unconditional commitment to engage in and comply with a rigorous
substance abuse treatment program").
should have recused himself from presiding at the probation

violation hearing. We affirm.

Background. On August 5, 2024, the defendant pleaded

guilty on complaints for possession of a class B substance,

G. L. c. 94C, § 34, and resisting arrest, G. L. c. 268, § 32B.2

The judge placed the defendant on probation for two years with

conditions including that he obey all laws, notify his probation

officer of any change of address within forty-eight hours,

undergo substance abuse treatment, enter and complete the drug

court program, and enter and complete a program at a residential

drug treatment facility.

Shortly thereafter, a notice of probation violation issued

alleging that on August 9, 2024, the defendant had been

discharged from the drug treatment facility; failed to make his

whereabouts known to his probation officer from August 9 to 13,

2024; and admitted using fentanyl, cocaine, and

tetrahydrocannabinol (THC) on August 14, 2024.

The same judge who had presided at the plea hearing held a

probation violation hearing on October 29, 2024. The defendant

waived his right to a hearing and admitted that he had violated

his probation. The judge found the defendant in violation of

2 The District Court maintained two separate dockets for the
complaints. For purposes of appeal, however, the matters have
been consolidated by this court.

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probation for failing to attend or complete the program at the

residential drug treatment facility; failing to make his

whereabouts known to his probation officer from August 9 to 13,

2024; and using fentanyl, cocaine, and THC on August 14. On the

issue of disposition, the probation officer asked that the judge

revoke probation and sentence the defendant to eighteen months

in the house of correction. The probation officer informed the

judge that the defendant had "essentially ordered drugs" for

residents in the drug treatment facility, putting them at grave

risk, and a prosecutor echoed those concerns.3 In response,

defense counsel argued that the defendant "is not in denial

about what [he] did. He's very remorseful. He

understands . . . how it could have affected . . . a lot of

other innocent people." Counsel informed the judge that the

defendant "was not charged in relation to what happened at the

[drug treatment facility]," and asked the judge to sentence the

defendant to nine months in the house of correction. The judge

revoked the defendant's probation and imposed an eighteen-month

3 The prosecutor also argued that the judge should consider
that the defendant's actions caused continued harm to the
reputation of the drug court program. The judge explicitly
stated that he did not consider the reputation of the drug court
program or his own reputation.

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sentence on the complaint charging resisting arrest and a

concurrent one-year sentence on the possession charge.

About six weeks later, the defendant filed motions for

reconsideration of the sentence, or in the alternative for

recusal of the judge, both of which the judge denied. The

defendant then filed motions to be permitted to file late

notices of appeal, which the judge allowed. The defendant

appeals.

Discussion. 1. Consideration of nature of probation

violation in sentencing. The defendant argues that in

sentencing him after revoking his probation, the judge

impermissibly considered "uncharged conduct," i.e., the

statement of the probation officer that the defendant had been

discharged from the residential drug treatment facility because

"he essentially ordered drugs" for the people in that facility.

The defendant also argues that the judge violated his due

process rights. We are not persuaded.

In sentencing a defendant after revocation of probation,

"[h]ow best to deal with the probationer is within the judge's

discretion." Commonwealth v. Eldred, 480 Mass. 90, 102-103

(2018), quoting Commonwealth v. Durling, 407 Mass. 108, 111

(1990). Rule 8(d) of the District/Municipal Court Rules for

Probation Violation Proceedings requires that the judge "shall

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give such weight as [he] may deem appropriate" to factors

including "public safety" and "the nature of the probation

violation." See Commonwealth v. Zachairah Z., 494 Mass. 417,

424 n.2 (2024). The defendant stipulated that he had violated

the conditions of his probation, and thus there is no dispute

that he was discharged from the drug treatment facility and used

fentanyl, cocaine, and THC. After the probation officer and the

prosecutor argued that the defendant's conduct posed a danger to

other residents of the drug treatment facility, defense counsel

acknowledged that the defendant understood how his conduct could

have affected "other innocent people." In those circumstances,

the judge properly considered the nature of the defendant's

violation and the risk to public safety. See Commonwealth v.

King, 96 Mass. App. Ct. 703, 712 (2019) ("the judge was entitled

to consider the totality of the information placed before him in

considering the appropriate disposition").

2. Recusal. The defendant argues that the judge was

required to recuse himself from presiding at the probation

violation hearing. To begin with, we note that the defendant

did not request that the judge recuse himself until six weeks

after that hearing, and so the motion was untimely. If the

request was timely, we would review for an abuse of discretion

the judge's decision not to recuse himself. See Commonwealth v.

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Rivera, 473 Mass. 1003, 1005 (2015). We would discern no such

abuse of discretion.

The defendant contends that the judge's comments at

sentencing revealed "bias" against him. After defense counsel

argued that the defendant was remorseful and had not been

charged with any offense as a result of his conduct at the drug

treatment facility, the judge told the defendant,

"My concern has to do with those people who were at the
program who were simply trying to get healthy and the
potential ramifications as a result of . . . the actions
that you chose to take and how that could have impacted
them.

"And when I think about all of that, it's very scary to me,
to be perfectly honest with you. There are other fathers,
mothers, wives, husbands who have loved ones who are in
those programs who are hoping that they get to see their
loved one come back healthier than when they went in. And
to the extent that you put that in jeopardy that day,
that's what truly concerns me."

We are not persuaded by the defendant's claim that those

comments exhibited the judge's "bias against [the defendant],

distinguishing him from other . . . Drug Court defendants."

While a judge "must be ever vigilant to make certain that his

personal and private beliefs do not interfere with his judicial

role," Commonwealth v. Mills, 436 Mass. 387, 401 (2002), a judge

may "freely place on record his sentencing philosophy and

particularized sentencing rationale," Commonwealth v. White, 48

Mass. App. Ct. 658, 664 (2000). The judge's concern for the

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welfare of other residents of the drug treatment facility did

not amount to bias against the defendant.

Orders dated October 29,
2024, revoking probation
and December 11, 2024,
denying motions for
reconsideration, affirmed.

By the Court (Grant, Walsh &
Brennan, JJ.4),

Clerk

Entered: May 5, 2026.

4 The panelists are listed in order of seniority.

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