Commonwealth v. Jose A. Roman.

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

22-P-302

COMMONWEALTH

vs.

JOSE A. ROMAN.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from a District Court judge's order

revoking his probation. On appeal, the defendant claims that

(1) the judge erroneously relied on unreliable hearsay, (2)

there was insufficient evidence to find him in violation of the

terms of his probation, and (3) his due process rights were

violated. We affirm.

Background. We recite the facts as presented at the

surrender hearing, reserving certain facts for later discussion.

After being convicted of drug-related offenses, the defendant

was placed on probation, subject to conditions, including that

he (1) submit to random drug testing, (2) remain drug-free, and

(3) obey the law. He was alleged to have violated those

conditions by failing to comply with the drug testing

requirements and committing three motor vehicle offenses.
At the hearing on the probation violation, the defendant’s

probation officer testified that the defendant missed nine

random drug screens, offering the results of the drug tests to

prove these missed appointments, and that the defendant tested

positive for cocaine on October 21, 2021. The defendant's

counsel conceded the positive drug test and no-show

appointments.1

The Commonwealth also introduced an incident report (the

report) written by the police officer who responded to the scene

of the defendant's accident. According to the report, at

approximately 2:40 A.M. the officer arrived at the scene of a

single vehicle crash and found the defendant "sitting in the

median with leg and facial injuries"; the officer noted that

"only the driver's side and front airbags had deployed." The

defendant maintained that he was not the driver of the vehicle

but refused to provide the driver's name. The police searched

the area and found no one else.2

The judge ruled that the Commonwealth had shown by a

preponderance of the evidence that the defendant violated the

1 The defendant's counsel expressly stated that, "with regard to
the screens, I concede the positive cocaine and concede the no-
shows as well."
2 Because we are satisfied that the positive drug test and no-

show appointments were reliable and conclude that they provide
an adequate basis for revoking the defendant's probation, we do
not reach the defendant's arguments about the report.

2
terms of his probation, "mainly by committing a new criminal

offense, . . . failing to comply with testing requirements,

specifically positive for cocaine . . . and having nine missed

screens." The judge confirmed in his finding of a probation

violation that, other than as specifically excluded, the

"exhibits meet the substantial reliability test."

Discussion. 1. Reliability and sufficiency of evidence.

"The Commonwealth must prove a violation of probation by a

preponderance of the evidence." Commonwealth v. Bukin, 467

Mass. 516, 520 (2014). "A determination whether a violation of

probation has occurred lies within the discretion of the hearing

judge." Id. at 519-520. Although "standard evidentiary rules

do not apply to probation revocation hearings," a finding of a

probation violation must be based on reliable evidence.

Commonwealth v. Durling, 407 Mass. 108, 117-118 (1990). "A

judge may rely on hearsay evidence at a probation violation

hearing where the evidence has substantial indicia of

reliability." Commonwealth v. Ogarro, 95 Mass. App. Ct. 662,

668 (2019). We review for abuse of discretion. See

Commonwealth v. Jarrett, 491 Mass. 437, 445 (2023), citing L.L.

v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

a. Reliability of evidence. In assessing whether the

hearsay evidence is reliable, a hearing judge may consider:

3
"(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."

Commonwealth v. Hartfield, 474 Mass. 474, 484 (2016). "There is

no requirement that hearsay satisfy all the above criteria to be

trustworthy and reliable." Commonwealth v. Patton, 458 Mass.

119, 133 (2010).

Because the defendant conceded the positive drug test and

no-show appointments for testing, we review to determine whether

the admission of such evidence was error, and if so, whether it

caused a substantial risk of miscarriage of justice. See

Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). There was no

error. The judge's finding that drug test results and no-show

appointments for testing were reliable was reasonably based on

(1) the high level of factual detail in the drug test results,

(2) the documents having been recorded close in time to the date

of the drug tests, and (3) corroboration by the probation

officer's personal experiences with and direct observations of

the defendant. See Commonwealth v. Eldred, 480 Mass. 90, 92-93

(2018) (judge reasonably determined probation officer's

4
testimony about positive drug test, as well as drug test results

themselves, constituted sufficiently reliable evidence).

b. Sufficiency of evidence. On appeal, we assess "whether

the record discloses sufficient reliable evidence to warrant the

findings by the judge that [the probationer] had violated the

specified conditions of his probation." Commonwealth v. Morse,

50 Mass. App. Ct. 582, 594 (2000).

Here, the evidence was sufficient to prove, by a

preponderance of the evidence, that the defendant violated his

conditions of probation. The judge reasonably relied on the

drug test results, no-show appointments, and probation officer's

testimony in coming to this conclusion. The probation officer's

testimony corroborated evidence of the defendant's positive drug

test result and no-show appointments. See Commonwealth v.

Jarrett, 491 Mass. 437, 445 (2023) (officer's testimony as to

defendant's drug-related offense sufficient to find defendant in

violation of drug-free terms of probation).3

2. Due process claim. We review the defendant's due

process challenge "to determine whether the error, if any, was

'harmless beyond a reasonable doubt.'" Commonwealth v. Kelsey,

3 In this light, we need not address the defendant's claim,
raised for the first time on appeal, that his counsel was
ineffective for having failed to move for a required finding.
See Commonwealth v. Heywood, 484 Mass. 43, 49 (2020) (and cases
cited).

5
464 Mass. 315, 319 (2013), quoting Commonwealth v. Bacigalupo,

455 Mass. 485, 495 (2009). "Due process requires a judge to

issue a written statement supporting a probation revocation to

help insure accurate factfinding with respect to any alleged

violation and provide[] an adequate basis for review to

determine if the decision rests on permissible grounds supported

by the evidence" (quotation omitted). Ogarro, 95 Mass. App. Ct.

at 667. This "is not an inflexible or invariably mandatory

requirement. . . . The judge's statement is sufficient if it

provides the probationer with the reasons for the decision,

adequate for the probationer to obtain a meaningful review"

(quotation omitted). Id.

Although it would have been preferable for the judge to

mark the relevant boxes on the probation violation finding and

disposition form, we are satisfied that the defendant's due

process rights were not violated. The judge thoughtfully

assessed the proffered hearsay evidence in the report and in

screenshots offered by the Commonwealth, reasonably excluding

some of it, and noted on the form that the remaining exhibits

"meet the substantial reliability test." See Fay v.

Commonwealth, 379 Mass. 498, 504-505 (1980) (judge's transcribed

review of evidence satisfied due process requirements).

Corroborated by the hearing record, the judge's written finding,

while scant, was sufficient to indicate the specific reasons he

6
found the hearsay evidence sufficiently reliable. See

Commonwealth v. Bain, 93 Mass. App. Ct. 724, 724-727 (2018)

(judge's findings complied with due process where judge left

line blank meant "to be filled in by the judge with specific

evidence relied on to support the violation finding"). See also

Morse, 50 Mass. App. Ct. at 592-593 (judge adequately provided

reasoning for probation revocation by making written finding

that plainly derived from reliable and sufficient evidence).

Taken together, these steps satisfied due process requirements

and provided for an adequate basis for the defendant to receive

meaningful review.

Order revoking probation
affirmed.

By the Court (Blake,
Hershfang & D'Angelo, JJ.4),

Clerk

Entered: April 27, 2023.

4 The panelists are listed in order of seniority.

7