Commonwealth v. Jowie Santiago.

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-615

COMMONWEALTH

vs.

JOWIE SANTIAGO.

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 argues that

the judge's finding that he had violated the terms and

conditions of his probation was not supported by sufficient

evidence. We agree and reverse.

Background. On January 29, 2021, the defendant pleaded

guilty to malicious destruction of property, vandalizing

property, violation of an abuse prevention order, and malicious

damage to a motor vehicle. The plea judge imposed split

sentences of two years in a house of correction with six months

to serve and the balance suspended during an eighteen-month term

of probation. On April 8, 2022, the defendant signed an order

of probation conditions, which, among other things, required him

to "[r]eport to [his] probation officer at such times and places
as he or she requires," and to complete an "Intimate Partner

Abuse Education Program" (IPAEP).

On September 28, 2021, the defendant admitted to being in

violation of his probation for failing to complete the IPAEP,

and as a result, his probation was extended to March 29, 2023.

The same day, the defendant reported to probation and signed a

new order of conditions, which again required him to "[r]eport

to [his] probation officer at such times and places as he or she

requires," and to complete an IPAEP. On January 4, 2022, the

District Court issued a notice of probation violation and

hearing informing the defendant that he was in violation of the

conditions of his probation because he (1) had failed to attend

the IPAEP and (2) had not reported to his probation officer

since September 28, 2021. 1

At the probation violation hearing on March 3, 2022, the

defendant's probation officer testified that the defendant

"failed to report to [the treatment center] to complete the

intake" for the IPAEP and failed to report to probation "[e]very

two week[s] as he [was] directed by the standard of probation

1 The notice also indicated that the defendant "[d]efaulted the
court on 11/29/21," and "violated a criminal law." The
defendant's probation officer did not pursue either of these
theories at the defendant's probation violation hearing. At one
point during the probation officer's testimony, he expressly
acknowledged that probation was not alleging the defendant had
committed any new offenses.

2
and the conditions of probation." The probation officer also

stated that he was not present on September 28, 2021, when the

defendant signed the new order of conditions, and that the

defendant had met with "someone else" from the probation office

on that day.

The hearing judge credited the probation officer's

testimony, finding that it was substantially reliable because it

was "based on personal knowledge and/or direct observation."

The judge found that the defendant had violated his probation

"both for failing to report to Probation since September 28,

2021, and also for failing to attend and complete the [IPAEP],"

and imposed the balance of the defendant's suspended sentences:

eighteen months in the house of correction.

Discussion. 1. Standard of review. "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 Commonwealth must prove a

violation of probation by the preponderance of the evidence.

Commonwealth v. Nunez, 446 Mass. 54, 59 (2006). We review an

order revoking probation to determine "whether the record

discloses sufficient reliable evidence to warrant the findings

by the judge that [the defendant] had violated the specified

conditions of his probation." Commonwealth v. Morse, 50 Mass.

App. Ct. 582, 594 (2000).

3
2. IPAEP. The defendant first challenges the hearing

judge's finding that he failed to attend and complete the IPAEP.

He argues that the only evidence of this alleged violation was

the probation officer's hearsay testimony that the defendant

"failed to report to [the treatment center] to complete the

intake" for the IPAEP, and that the hearing judge improperly

relied on this testimony because it lacked the requisite indicia

of reliability. The Commonwealth in fact concedes that there

was insufficient evidence to find that the defendant violated

his probation by failing to attend or complete the IPAEP.

Nevertheless, "[t]he Commonwealth's 'admission of error' does

not relieve us of our appellate function of determining whether

error was committed" (citation omitted). Commonwealth v.

McClary, 33 Mass. App. Ct. 678, 686 n.6 (1992).

Probation violation hearings are not subject to the strict

rules of evidence. Commonwealth v. Durling, 407 Mass. 108, 112

(1990). Even so, "[u]nsubstantiated and unreliable hearsay

cannot, consistent with due process, be the entire basis of a

probation revocation." Id. at 118. "[W]hen hearsay is offered

as the only evidence of the alleged violation, the indicia of

reliability must be substantial." Id. A judge evaluating the

reliability of hearsay evidence may consider, inter alia,

"whether the evidence is based on personal knowledge or direct

observation"; "the level of factual detail"; and "whether the

4
evidence is corroborated by information from other sources."

Commonwealth v. Hartfield, 474 Mass. 474, 484 (2016). None of

these factors supports a finding of reliability for the hearsay

evidence at issue here.

The hearing judge's finding that the probation officer's

testimony was based on personal knowledge is unsupported by the

record. The probation officer failed to provide any details as

to when or from whom he learned of the defendant's purported

failure to attend an intake for the IPAEP, and no other evidence

was presented to corroborate this allegation. The probation

officer's testimony regarding the defendant's failure to attend

the IPAEP therefore lacked substantial indicia of reliability.

See Commonwealth v. Grant G., 96 Mass. App. Ct. 721, 726 (2019)

(hearsay lacked substantial indicia of reliability where "case

worker had no direct or indirect knowledge of any of the details

or circumstances of [probationer's] absence from the program");

Commonwealth v. Emmanuel E., 52 Mass. App. Ct. 451, 454 (2001)

(testimony "devoid of factual detail or corroborating personal

observations" insufficient to establish probation violation by

preponderance of evidence); Commonwealth v. Podoprigora, 48

Mass. App. Ct. 136, 139 (1999) ("oral testimony based on

uncorroborated hearsay is not sufficiently reliable for

probation revocation purposes"). For these reasons, there was

5
insufficient evidence that the defendant violated the conditions

of his probation by failing to attend or complete the IPAEP.

3. Failure to report. The defendant next argues that

there was insufficient evidence of the defendant's knowledge of

any specific reporting intervals to support the hearing judge's

finding that he failed to report to probation as required. Due

process entitles probationers to clear guidance as to "when

their actions or omissions will constitute a violation of their

probation." Commonwealth v. Ruiz, 453 Mass. 474, 479 (2009),

quoting Commonwealth v. Lally, 55 Mass. App. Ct. 601, 603

(2002). A defendant "cannot be found in violation of

probationary conditions that might have been intended or would

have made sense, only of those that are unambiguous and of which

[they have] notice." Commonwealth v. King, 96 Mass. App. Ct.

703, 710 (2019). Thus, a finding a probationer is in violation

of a specific condition is dependent on the Commonwealth proving

the probationer had adequate notice of the condition.

Commonwealth v. Bunting, 458 Mass. 569, 573 (2010). "[T]he

interpretation of a probation condition and whether it affords a

probationer fair warning of the conduct proscribed thereby are

essentially matters of law." Commonwealth v. Hamilton, 95 Mass.

App. Ct. 782, 785 (2019), quoting United States v. Gallo, 20

F.3d 7, 11 (1st Cir. 1994), and any "ambiguities in probation

conditions are construed in favor of the defendant" (citation

6
omitted). King, supra at 710-711. A finding of adequate notice

is of particular importance, where, as here, the alleged

violation stems from conduct that is noncriminal. See Ruiz,

supra at 479 n.7.

Here, the only evidence concerning the intervals at which

the defendant was required to meet with probation was the

probation officer's testimony that the defendant failed to

report to probation "[e]very two week[s] as he [was] directed by

the standard of probation and the conditions of probation."

However, the probation officer did not offer any explanation or

evidence to clarify his reference to the "standard of

probation," and the "conditions" of the defendant's probation

directed him only to meet with probation "at such times and

places" as his probation officer required. The absence of

evidence that the defendant received adequate notice that he was

required to report to probation every two weeks renders the

finding that he violated the reporting requirement inconsistent

with due process. See Hamilton, 95 Mass. App. Ct. at 789

(evidence of failure to report insufficient where testimony did

"not establish who . . . told the defendant that he had to

report, or whether he was even told to report" on particular

date); Commonwealth v. Ivers, 56 Mass. App. Ct. 444, 447 (2002)

(vacating order revoking probation based on defendant's failure

to report where "record contain[ed] nothing . . . about the

7
intervals at which [the defendant] was to report to his

probation officer"). See also Commonwealth v. Maggio, 414 Mass.

193, 198 (1993) (due process requires evidence sufficient to

support "an independent finding, at least to a reasonable degree

of certainty," that defendant violated probation). Cf.

Commonwealth v. Grundman, 479 Mass. 204, 208 (2018) (judge's

"general statement" that defendant's sentence would be "subject

to the terms and conditions of the probation department"

insufficient to provide actual notice of monitoring condition).

The Commonwealth's contention that the defendant had an

implicit, affirmative duty to contact probation to inquire about

his reporting requirements is unpersuasive. Although

"[c]onditions of probation do not have to be cast in letters six

feet high, or to describe every possible permutation, or to

spell out every last, self-evident detail," Gallo, 20 F.3d at

12, a reasonable person would not have understood that the

requirement to meet with probation "at such time and places as

his or her probation officer requires" obligated the defendant

to take proactive steps to ascertain the times and places his

probation officer wanted to meet with him. See Commonwealth v.

Medeiros, 95 Mass. App. Ct. 132, 137 (2019) ("the language of

special probation conditions should be interpreted from the

perspective of a reasonable person who understands the

defendant's background"). See also Commonwealth v. Poirier, 458

8
Mass. 1014, 1015 (2010) (condition requiring monitoring on

defendant's release did not impose "affirmative obligation" on

defendant to notify probation of his release or ensure device

available). Indeed, the phrase "as required" implies that the

responsibility for determining and communicating specific

reporting requirements rested with the defendant's probation

officer. Because the defendant was not required to contact

probation to determine when he was required to report, his

purported failure to do so was not a violation of the conditions

of his probation or evidence that he did not act in good faith.

Contrast Commonwealth v. Al Saud, 459 Mass. 221, 231 (2011)

(defendant failed to make good faith effort to comply with

condition requiring him to report to probation on release where

he agreed to be deported immediately following release and did

not "make any effort to contact [probation] and explain").

In essence, the Commonwealth suggests that it was the

defendant's responsibility to ascertain what was required of

him, and that if he failed to do so, he is at fault for his lack

of knowledge. This argument impermissibly shifts the burden of

proof from the Commonwealth, to prove adequate notice and a

willful violation, to the defendant, to demonstrate that he took

all necessary steps to ensure he was aware of and in compliance

with all that was required of him. Cf. Commonwealth v. Nolin,

9
448 Mass. 207, 217 (2007) (shifting burden of proof to defendant

violates due process rights).

In view of these principles, a finding that the defendant's

probation conditions implicitly required him to ask probation

about his reporting requirements would violate the defendant's

due process by lessening the Commonwealth's burden of proof. 2

Conclusion. The order entered on March 3, 2022, finding

that the defendant violated his probation and imposing the

balance of his suspended sentences, is reversed. As the

defendant has fully served the balance of the sentences, a

remand for further proceedings is unnecessary. 3

So ordered.

By the Court (Milkey,
Walsh, & Smyth, JJ. 4),

Clerk

Entered: October 25, 2023.

2 Assuming, arguendo, that the defendant was in fact required to
ask probation about his reporting requirements, the record lacks
a sufficient basis on which to infer that he failed to do so
when he spoke with someone from the probation department and
signed the order of conditions on September 28, 2021.

3 In view of our decision, it is unnecessary to address the
parties' arguments regarding the exhibits that were excluded
from evidence.

4 The panelists are listed in order of seniority.

10