Commonwealth v. Lazaro Trizan.

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-789

COMMONWEALTH

vs.

LAZARO TRIZAN.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Appealing from an order of a Superior Court judge revoking

his probation and imposing a sentence, the probationer, Lazaro

Trizan, claims that a series of errors denied him due process of

law. We affirm.

Background. Following guilty pleas to several offenses on

November 16, 2011, a judge sentenced the probationer to State

prison for five to seven years and a concurrent ten years of

probation. General conditions of probation included the

following requirement: "You shall obey all local, state and

federal laws and all Court orders." Nearly ten years later, the

probationer's ex-girlfriend in Florida reported to the police

that she received over one hundred telephone calls on her work

telephone from the probationer between July 15-19, 2021. On

November 19, 2021, a notice of alleged probation violation
issued from the Superior Court, indicating the following basis

for the violation: "NEW OFFENSE: 11/4/2021 Leon County

Sheriff's Office Offe[n]se Tracking Number 3703047692:

Aggravated Stalking, Harassing Communication." After a final

surrender hearing on March 18, 2022, a judge found the

probationer violated his probation and sentenced him to two to

five years in State prison.

At the hearing, the probationer raised only one issue that

is pertinent here. He unsuccessfully objected on reliable

hearsay grounds to a four-page exhibit entitled, "SUMMARY OF

OFFENSES AND PROBABLE CAUSE AFFIDAVIT" (the exhibit). The

exhibit consisted of an affidavit prepared by a police detective

from Florida and alleged facts constituting probable cause to

charge the probationer with "three counts of harassing phone

calls and one count of aggravated stalking." A county judge in

Florida signed the document and found "[p]robable cause

sufficient." On appeal, the probationer repeats his hearsay

argument and raises four new, additional claims. We discern no

error by the judge in overruling the probationer's objection to

the document on hearsay grounds, see Commonwealth v. Durling,

407 Mass. 108, 115 (1990), and we discern no error and no

"substantial risk of a miscarriage of justice" relative to the

additional claims raised for the first time on appeal.

Commonwealth v. Freeman, 352 Mass. 556, 564 (1967).

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Discussion. 1. Reliable hearsay. There is no "per se

prohibition on the use of hearsay evidence at probation

revocation hearings." Durling, 407 Mass. at 115. See

Guidelines for Probation Violation Proceedings in the Superior

Court § 6(B). "Unsubstantiated and unreliable hearsay cannot,

consistent with due process, be the entire basis of a probation

revocation. When hearsay evidence is reliable, however, then it

can be the basis of a revocation." Durling, supra at 118. "The

probation department may meet its burden of proof to establish a

violation solely through the admission of hearsay with

substantial indicia of reliability." Commonwealth v. Hartfield,

474 Mass. 474, 482 (2016).

We agree with the judge's determination that the challenged

exhibit was reliable. The exhibit included an affidavit, signed

under the pains and penalties of perjury, by a detective who

outlined the steps he took during an investigation. That

affidavit provided the following information: the victim

identified herself and met with the detective; she reported that

on July 6, 2021, the probationer appeared at her residence in

Florida, followed her, and attempted to forcibly stop her car in

traffic; she provided details of more than one hundred

unsolicited telephone calls received from the probationer

between July 15-19, 2021; she was unable to conduct business on

her office telephone because of the calls; she provided

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telephone logs to the detective; she recognized one of three

numbers that called as belonging to the probationer; telephone

records obtained by the detective linked the two other numbers

from the telephone logs to the probationer; the telephone

records of all three telephone numbers confirmed that calls were

made to the victim's telephone and were consistent with the

dates and times in the call log of the victim's telephone; the

detective spoke by telephone with the probationer; and the

probationer admitted in that recorded telephone call with the

detective that he made the calls. Given the personal knowledge,

direct observations, the level of factual detail, the consistent

and corroborated information, and the circumstances supporting

the veracity of the allegations, the challenged exhibit

demonstrated the requisite "substantial indicia of reliability."

Hartfield, 474 Mass. at 484.

2. New claims. For the first time, the probationer raises

four additional claims. These claims fail to identify an error,

let alone a substantial risk of a miscarriage of justice. See

Freeman, 352 Mass. at 564.

(1) First, the probationer contends that the exhibit "did

not provide an adequate basis for an independent determination

of criminality." Based on the detailed factual summary in the

affidavit, the judge was "capable of making an independent

finding, at least to a reasonable degree of certainty, that the

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defendant had violated a condition . . . of his probation" by

committing crimes in another jurisdiction. Commonwealth v.

Maggio, 414 Mass. 193, 198 (1993). See G. L. c. 233, § 70 ("The

courts shall take judicial notice of the law of the United

States or of any state, territory or dependency thereof or of a

foreign country whenever the same shall be material"); Fla.

Stat. § 365.16(1)(b)-(d) (1995) (prohibiting repeated telephone

calls); Fla. Stat. § 784.048(3) (2019) (prohibiting repeated

acts of following or communicating).

(2) The probationer also claims that he did not have "clear

notice" that the telephone calls risked violating Florida law.

The probationer was certainly aware that his conduct might

transgress the law because he had been charged with crimes and

was the subject of restraining orders under similar

circumstances in the past. Putting aside his prior interactions

with law enforcement and the courts, the probationer cannot rely

upon ignorance of the law in Florida, where he previously

resided before moving to Texas. See Haven v. Foster, 26 Mass.

112, 130 (1829) ("In all civil and criminal proceedings every

man is presumed to know the law of the land . . .").

(3) The probationer additionally claims that he did not

have "fair notice of the charges against him," but he took a

different position at the probation revocation hearing, where

defense counsel acknowledged that notice was not an issue. "The

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[probationer's] contrary position in the trial court bars [his]

claim on appeal." Rabinowitz v. Schenkman, 103 Mass. App. Ct.

538, 541 (2023). See Commonwealth v. Ng, 489 Mass. 242, 255-256

(2022). The record also does not support the probationer's

current contention that the judge based her decision on the

probationer's "past history" and effectively denied him an

opportunity to be heard.

(4) Finally, the probationer contends that the judge erred

by finding the probationer in violation of his probation after

his probation term expired. "There can be no violation of

probation unless committed during the probationary period, but

it is settled in the Commonwealth that in suitable circumstances

probation may be revoked after that period. However, it must

occur within a 'reasonable' time." Commonwealth v. Baillargeon,

28 Mass. App. Ct. 16, 20 (1989). The record discloses the

following timeline: following the incidents in Florida detailed

in the affidavit in the exhibit, the probationer moved to Texas;

process issued from Florida on November 4, 2021; the ten-year

probation term ended on November 16, 2021; notice of the

probation violation issued on November 19, 2021; the initial

probation surrender hearing occurred on January 12, 2022; and

following one continuance the court rescheduled the final

probation surrender hearing to March 2022 "due to [the] State of

Emergency surrounding the Covid-19 virus." This timeline of

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revocation is not unreasonable, especially given the multiple

jurisdictions, COVID-19 pandemic, and lack of prejudice to the

probationer.

Order revoking probation and
imposing sentence affirmed.

By the Court (Green, C.J.,
Hand & Hodgens, JJ. 1),

Assistant Clerk

Entered: March 15, 2024.

1 The panelists are listed in order of seniority.

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