The opinion
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11-P-2150 Appeals Court
COMMONWEALTH vs. ABDULLAH MUHAMMAD SAYYID. 1
No. 11-P-2150.
Worcester. March 7, 2014. - October 6, 2014.
Present: Katzmann, Rubin, & Carhart, JJ.
Due Process of Law, Probation revocation, Hearing. Practice,
Criminal, Revocation of probation, Probation, Stipulation,
Waiver. Intellectually Disabled Person. Mental
Impairment. Waiver.
Indictments found and returned in the Superior Court
Department on July 30, 1999.
A proceeding for revocation of probation was heard by Kathe
M. Tuttman, J., and Peter W. Agnes, Jr., J., and a motion for
release from unlawful restraint was heard by Daniel M. Wrenn, J.
Eleanor Hertzberg for the defendant.
Stephen J. Carley, Assistant District Attorney, for the
Commonwealth.
1
At the time of the probation revocation hearing, the
defendant's name was Anthony J. Conley. He formally changed his
name to Abdullah Muhammad Sayyid through an order of the Probate
and Family Court in August, 2009.
2
KATZMANN, J. The defendant, who is intellectually
disabled, appeals from the denial, after an evidentiary hearing,
of his claim that his attorney's stipulation to violation of
conditions of probation contravened his due process rights.
This appeal presents the questions whether, in a probation
revocation proceeding, a stipulation to probation violations
resulting in waiver of a hearing must be knowing and voluntary
and whether a judge is under an obligation to directly address
the defendant to ascertain that the waiver was knowing and
voluntary. We conclude that a defendant's agreement to waive a
probation revocation hearing -- such as by stipulating to
violations -- must be knowing and voluntary, that such waiver is
to be assessed under the totality of the circumstances, and that
although there may be sound judicial administration arguments
for the promulgation of a rule codifying a contemporaneous
waiver protocol, no particular colloquy is constitutionally
required at the time of the waiver. However, we further
conclude that the record here does not support a determination
that the defendant's waiver was knowing and voluntary. We
reverse.
Background. After being examined for competency and
criminal responsibility pursuant to G. L. c. 123, § 15(a), the
defendant executed a waiver of rights and entered an Alford plea
(North Carolina v. Alford, 400 U.S. 25 [1970]) to one count each
3
of rape of a child under sixteen by force in violation of G. L.
c. 265, § 22A, and indecent assault and battery on a child under
fourteen in violation of G. L. c. 265, § 13B. A Superior Court
judge ordered the defendant committed for a period of
observation pursuant to G. L. c. 123, § 15(e), and then
sentenced him in 2002 to from seven to eight years'
incarceration on the offense of rape of a child under sixteen by
force, with a recommendation that the sentence be served at
Bridgewater State Hospital. On the same date, the judge also
sentenced the defendant on the count of indecent assault and
battery on a child under age fourteen to three years' probation
upon discharge from the sentence of incarceration. The
defendant was released from prison in 2007 at which time he
began his probation.
At the time of his release from prison, the defendant
executed an agreement, with the assistance of his legal
guardian, Dr. Thomas Petrouski, to special conditions of
probation. 2 After an initial placement, the defendant was
2
Those conditions included the following:
"1. You must comply with the Department of Mental
Retardation (DMR) rules and regulations.
2. You must remain at the DMR Residential Treatment
Program until its successful completion.
3. You must comply with the Level II Skill Development
Plan.
4. You must participate in treatment evaluations.
4
transferred to a residential group home with twenty-four hour
staff supervision in Winchendon under the authority of the
Department of Mental Retardation (DMR). 3 The defendant was moved
there due to "numerous concerns" that his behavior could not be
controlled. During this period probation officer Marie Mercurio
served a notice of violation to the defendant and filed a
surrender on his probation for numerous allegations that he had
violated his probation. This notice of violation was the
subject of five separate court appearances. At the first court
appearance, on March 21, 2008, Attorney Peter Clifford was
appointed as counsel for the defendant. A different judge
(revocation judge) handled the four additional hearings over the
5. You must participate in recommended treatment (anger
management/emotional regulations and sex offender
treatment).
6. You must participate in a medication evaluation and
take any prescribed medications. You may seek a second
opinion.
7. You may pursue employment if deemed appropriate by the
DMR.
8. You must register as a sex offender.
9. You must stay away from and have no contact with
children under the age of sixteen.
10. You must stay away from and have no contact with the
victim.
11. You may contact biological children through mail or
phone if approved by the Department of Social Services.
12. You must comply with the DNA statute.
13. You must abstain from drugs and alcohol.
14. You must stay away from and have no contact with [Jane
Doe] [a pseudonym]."
3
DMR is now the Department of Developmental Services.
5
course of the following six months, 4 reflecting his conscientious
concern that the defendant's competency be established and the
judge's proactive efforts to consider alternatives to
incarceration.
At the April 18, 2008, hearing, probation officer Mercurio
recited the alleged violations. She reported that during his
stay in the Winchendon home, the defendant engaged in numerous
violations of the conditions of his probation and the DMR and
Winchendon home rules. 5 Noting that the defendant's guardian had
4
The hearings occurred on April 18, 2008; May 23, 2008;
June 3, 2008; and August 14, 2008.
5
The alleged violations were as follows: The defendant
contacted a Jane Doe, with whom the probation conditions had
forbidden contact, and used the telephone to do so in violation
of house rules. He stored cups of urine in his room, dressed
himself in "full army fatigues . . . [and] boots," and again
made telephone calls without permission to "900"-number-style
sex chat lines. During a visit to a country store near the
group home, the defendant took a "video game or a DVD" from a
display and "placed it in his jacket," attempting to steal it.
The store owners elected not to file charges on the condition
that the defendant "never be brought back to that location
again." In addition, the defendant, while attending religious
services, began a relationship with another woman and provided
to her "his papers," including legal papers, and began
exchanging money with her. The defendant also established a
relationship with the woman's daughter who, although not a
child, was "a very slight, childlike-looking young lady." The
defendant's conduct in the home gave its operators concern that
he was preparing to escape and live on the run. The defendant
was found storing a tarp in his room, which "could be used as
shelter in the woods." The Winchendon home was on a country
road surrounded by trees and next door to a home with children
and a daycare center "right around the corner." The defendant
had been seen wearing "fatigue[s]" regularly, and he stated to
the house manager that "he would rather go back to jail than
6
failed to appear, the revocation judge declined to act on the
defendant's motion to dismiss or to conduct a final violation
hearing until the defendant could be evaluated for competency
with the benefit of the guardian's presence.
On May 23, the revocation judge conducted another hearing
and took testimony from the guardian, Dr. Petrouski. Dr.
Petrouski expressed his "own personal opinion" that the
defendant was not competent, that when he "is in front of the
judge, he will pretty much agree to anything." The revocation
judge, noting that his "first concern . . . is on this issue of
competency," further observed:
"The mere fact that someone has a guardian appointed, as
perhaps everyone knows, doesn't mean that the person is not
competent to stand trial, not competent to plead guilty as
it were. And unless there's something that anyone who is
here today knows that I don't know, I think it would be
presumptuous of me simply because [the defendant] has a
guardian, simply because the guardian reports that [the
defendant] functions at a cognitive level that qualifies
him for the services by the Department of Mental
Retardation that when he pleaded guilty in this case or
when his Alford plea was accepted that he was not competent
live by the rules." The defendant refused, contrary to DMR
requirements, to see his mandated psychologist, Dr. Sorrentino,
at the appointed time. He likewise refused to attend mandatory
sex offender therapy on Wednesday, March 19, 2008, stating on
that occasion "that he just didn't want to go." The house
manager also discovered that the defendant had mailed letters to
individuals to whom he had spoken on the chat lines. Some of
those letters, directed to a woman living in Arkansas, were
addressed to her by her first name followed by his last name,
i.e., "[s]o it's almost to a Mrs. So-and-So Conley" (see note 1,
supra). The defendant mailed a similarly addressed letter with
respect to a woman, a cousin of one of his housemates, with whom
he had gone bowling.
7
to stand trial. I don't think I would make that finding
just based on what I've heard. . . . [I]f it turns out that
he's not competent to stand trial even though he may have
been competent to plead guilty at some point in the past,
then I'm not sure what options the court has, but the
option of revoking his probation is not one of them."
Accordingly, the revocation judge ordered the defendant
evaluated for competency pursuant to G. L. c. 123, § 15(a).
On June 3, the same judge conducted a further hearing and noted
that, since the prior hearing, the defendant had been evaluated
and had been deemed legally competent. In his forensic health
report, Dr. Alan Schonberger had concluded that the defendant
has "mental retardation, a mental defect" and that he appeared
to be in the "mild mental retardation level" of intelligence.
While opining that the defendant has "many of the abilities and
understanding usually associated with CST [competency to stand
trial]," Dr. Schonberger cautioned:
"Depending upon the demands placed upon him at a violation
of probation hearing, in my opinion, will determine whether
the court will find him either CST or Incompetent to Stand
Trial (IST). Thus if the demands of a hearing require
following complicated testimony or comprehending difficult
legal questions, then I would have concerns about his
capacity to adequately follow those issues. On the other
hand if the demands at a hearing are more simple, then in
my opinion [the defendant] is well able to handle those
demands. At present [the defendant] understands his
charges and the potential consequences of those charges.
He understands the roles of the attorneys and judge
involved in the hearing. While unable to define words like
guilt, truth, or lie, [the defendant] demonstrates his
capacity to comprehend these concepts when given relatively
more simple examples.
8
"Due to his cognitive deficits, [the defendant's] thinking
tends to be concrete and thus he will need to hear
information in smaller chunks and in a more simplified
manner in order to help him process it. He also will
require additional time to process new information. In my
opinion [the defendant] appears more marginal in terms of
his CST in regards to more complicated legal issues, such
as his understanding of a plea bargain. He will have a
difficult time explaining the rights he might give up by
accepting a particular plea option, and/or advantages in
pursuing a particular course of action. (Of note, it
remains unclear to me whether a plea bargain is even an
option for a defendant in a violation of probation hearing
and, if not, then this impairment is a moot point.)
However, in my opinion, with adequate time and more
simplified explanation, [the defendant] is able to
comprehend necessary legal information to make rational
decisions. Thus in my opinion no further evaluation of his
CST is needed at this time." (Emphasis supplied).
At the June 3 hearing, Attorney Clifford acknowledged that
competency had been established. Later in the same hearing,
after the judge questioned DMR representatives at length
regarding placement options other than incarceration, the judge
said,
"Well, Mr. Clifford, let me direct a question to you.
There was a fairly extensive presentation by the probation
department at the earlier hearing that led me to the
finding of probable cause, and I assume we would hear the
same presentation again from Ms. Mercurio. Would you want
an opportunity, if we were to treat this as a final
hearing, to cross-examine the probation officer, and-or
offer evidence yourself on the issue of whether [the
defendant] violated his probation, versus what the
disposition would be?"
In reply, Attorney Clifford objected to probation officer
Mercurio's recitation of misconduct outside the scope of the
violation notices. The revocation judge indicated such
9
misconduct would only be considered as to disposition, and posed
the question to Attorney Clifford again. Mr. Clifford replied,
"Sticking to the notices that have been filed, they're not in
dispute. [The defendant] admits that he violated those terms of
his probation." (Emphasis supplied). Based upon this
representation, the revocation judge -- who did not question the
defendant personally, inquire into his understanding of the
stipulation, or inquire of counsel whether he had spoken to the
defendant about the implications of a stipulation -- stated:
"All right; then I will find, on the basis of the evidence
that was presented earlier that was detailed by Ms.
Mercurio about the conduct of [the defendant] while at
. . . the home in question, which violated the rules of the
home, his failure to submit to the conditions of probation,
that he is in violation of terms and conditions of his
probation, which through counsel he acknowledges."
As suggested by the judge, the defendant then requested an aid-
in-sentencing evaluation to help formulate a plan that would
provide an alternative to incarceration. The judge denied the
defendant's motion to dismiss the probation violation
allegations. On August 14, 2008, the judge held a final hearing
as to disposition and, at its conclusion, sentenced the
defendant to from five to eight years' incarceration. The
judge, who had sought to assess alternatives to incarceration,
concluded:
"[The defendant's] record since he was placed on probation,
regrettably, is that despite every effort made by the
Probation Department, by the Department of Mental
10
Retardation, and by the people under contract with them,
that the defendant has not been able to conform his conduct
to the requirements of law. Now, on that case, the only
option is incarceration, unless a judgment is made that the
violations are so trivial and the risk of harm is so slight
that incarceration would be unjust and serve no valid
reason. That's not the case, unfortunately. I have to say
I think that the Probation Department is correct in
identifying [the defendant] as a high-risk offender, and
that's because his record suggests that he has not only
committed serious offenses, but that . . . he just does not
have the wherewithal to conform to the requirements of
law."
On February 6, 2012, the defendant filed a motion for
"release from unlawful restraint" pursuant to Mass.R.Crim.P.
30(a), as appearing in 435 Mass. 1501 (2001). In support of his
motion, the defendant alleged that "he did not knowingly or
voluntarily stipulate to a violation of probation, or waive his
right to a hearing on the merits." Likewise, in his affidavit
in support of his motion, the defendant averred that he "d[id]
not remember if Attorney Clifford explained what it meant to
stipulate to a violation of probation." He further averred that
he had "wanted the opportunity to explain [his] side of the
story regarding the alleged violations of probation."
According to the defendant's affidavit, had he received "the
opportunity to explain [his] side to the judge," he would have
told the revocation judge a number of facts and reasons relating
to the violations of his terms of probation, including that he
"should [not] have been violated" for contacting Jane Doe, see
note 5, supra, that he "did not break the rules at the group
11
home by using the phone," that he "did not store urine" in his
room, and that the other allegations were either
misunderstandings or did not actually constitute breaches of the
house rules or the terms of his release. In his accompanying
memorandum of law, the defendant repeated that he "did not
himself stipulate to the violation of probation. The
stipulation was made by his attorney."
On November 29 and December 21, 2012, a Superior Court
judge who was not the revocation judge, and to whom we shall
refer as the motion judge, conducted an evidentiary hearing on
the defendant's motion for release, at which Attorney Clifford
and the defendant testified. 6 As detailed below, the judge made
findings and denied the defendant's motion.
Discussion. The defendant contends that the motion judge
erred in denying his motion pursuant to Mass.R.Crim.P. 30(a). 7
6
Prior to the hearing, on the Commonwealth's motion, the
motion judge declared the attorney-client privilege waived with
respect to communications between Attorney Clifford and the
defendant as to the probation violation matter and,
specifically, as to the defendant's stipulation to the
violations.
7
The Commonwealth observes correctly in its brief that the
defendant's motion was improperly filed pursuant to
Mass.R.Crim.P. 30(a) because that subsection does not allow
challenge to the procedural merits of a probation revocation.
See Commonwealth v. Christian, 429 Mass. 1022 (1999). See also
Reporter's Notes to Mass.R.Crim.P. 30(a), Mass. Ann. Laws Court
Rules, Rules of Criminal Procedure, at 1659 (LexisNexis 2013-
2014) ("In the context of a probation revocation order, a motion
under Rule 30(a) would be appropriate only as a vehicle for
12
The defendant asserts that the revocation judge erred in his
acceptance of the defendant's waiver of the right to a hearing
without inquiring of him contemporaneously whether or not he
understood the proceedings and the ramifications of a
stipulation to the violations.
"The Commonwealth must prove a violation of probation by a
preponderance of the evidence." Commonwealth v. Bukin, 467
Mass. 516, 520 (2014). "A probation violation proceeding is not
considered to be a new criminal prosecution because the
Commonwealth already has met its burden of proving guilt beyond
a reasonable doubt." Commonwealth v. Pena, 462 Mass. 183, 190
(2012). "However, due process rights under the Fourteenth
Amendment to the United States Constitution are implicated at
such a hearing because a finding of violation of probation may
result in loss of liberty." Commonwealth v. Patton, 458 Mass.
119, 125 (2010). "Where '[r]evocation deprives an individual,
not of the absolute liberty to which every citizen is entitled,
but only of the conditional liberty properly dependent on
observance of special [conditions],' . . . 'a probationer need
not be provided with the full panoply of constitutional
protections applicable at a criminal trial.'" Ibid., quoting,
challenging the legality of the sentence the defendant received
and not the legality of the order revoking probation"). The
Commonwealth acknowledges that the motion could have been filed
under rule 30(b) and does not challenge the appropriateness of
our consideration of this appeal.
13
respectively, from Gagnon v. Scarpelli, 411 U.S. 778, 781 (1973)
(Gagnon), and Commonwealth v. Durling, 407 Mass. 108, 112
(1990).
As the defendant acknowledges, due process is a flexible
concept:
"Morrissey [v. Brewer, 408 U.S. 471 (1972),] and Gagnon
establish that the minimum requirements of due process
include '"(a) written notice of the claimed violations of
[probation or] parole; (b) disclosure to the [probationer
or] parolee of the evidence against him; (c) opportunity to
be heard in person and to present witnesses and documentary
evidence; (d) the right to confront and cross-examine
adverse witnesses (unless the hearing officer specifically
finds good cause for not allowing confrontation); (e) a
'neutral and detached' hearing body such as a traditional
parole board, members of which need not be judicial
officers or lawyers; and (f) a written statement by the
factfinders as to the evidence relied on and reasons for
revoking [probation or] parole." Morrissey v. Brewer,
supra at 489.' Gagnon v. Scarpelli, supra at 786."
Commonwealth v. Durling, supra at 113. Commonwealth v.
Durling, the touchstone case governing procedure in probation
revocation cases, notes, "[w]hile Morrissey and Gagnon identify
the components which make up a scheme satisfying due process,
the requirements of due process depend on the circumstances of
each case and an analysis of the various interests at stake."
Id. at 113-114. Indeed, cognizant of the liberty interest at
stake in probation revocation proceedings, the Supreme Judicial
Court has "taken a somewhat more expansive view than the [United
States] Supreme Court . . . ." Commonwealth v. Patton, 458
Mass. at 125 ("[W]henever imprisonment palpably may result from
14
a violation of probation, 'simple justice' requires that, absent
waiver, a probationer is entitled to assistance of counsel").
No reported Massachusetts decision has addressed the
proposition set forth by the defendant here -- namely, that in a
probation revocation proceeding, a stipulation to probation
violations resulting in waiver of a hearing must be knowing and
voluntary and that a judge is under an obligation to directly
address the defendant to determine that the waiver was knowing
and voluntary. A decision of the United States Court of Appeals
for the First Circuit, however, has addressed those very issues
in United States v. Correa-Torres, 326 F.3d 18 (1st Cir. 2003)
(Correa-Torres), and we find it to be instructive and
persuasive. There, the court considered the "requirements
[that] must be met when a probationer . . . purposes to waive
his right to a revocation hearing under Federal Rule of Criminal
Procedure 32.1." Id. at 20. That rule sets forth the same
basic procedural rights reiterated in Durling. 8 In Correa-
Torres, the First Circuit observed:
"In our system of criminal justice, most rights can be
waived. The rights enumerated in Rule 32.1 are no
exception. As a general proposition, however, the waiver
8
Federal Rule of Criminal Procedure 32.1(a)(2) (2000)
(since 2003, Fed.R.Crim.P. 32.1[b][2]) requires: "(A) written
notice of the alleged violation; (B) disclosure of the evidence
against the person; (C) an opportunity to appear and to present
evidence in the person's own behalf; (D) the opportunity to
question adverse witnesses; and (E) notice of the person's right
to be represented by counsel."
15
of virtually any right closely affecting individual liberty
must be knowingly and voluntarily made. Because adherence
to the processes prescribed by Rule 32.1 is instrumental to
the fair and efficient operation of revocation proceedings,
we hold that a waiver of the rights conferred thereunder
cannot be effective unless that waiver is made both
knowingly and voluntarily."
Correa-Torres, 326 F.3d at 22 (citations omitted). We agree.
Regarding the protocol to ensure that a waiver is knowing
and voluntary, the First Circuit further observed:
"Because we are mindful that revocation proceedings are
more informal than criminal prosecutions, we do not
prescribe any particular mantra. Instead, we emulate
several of our sister circuits and hold that,
notwithstanding the requirement that waivers of procedural
rights with respect to revocation hearings must be knowing
and voluntary, such waivers need not be accompanied either
by any magic words or by a formal colloquy of the depth and
intensity required under Federal Rule of Criminal Procedure
11 (governing guilty pleas in criminal cases).
". . .
"Where, as here, a probationer . . . mounts a retrospective
challenge to the validity of a waiver of Rule 32.1 rights,
a reviewing court should look not only to the punctilio of
the sentencing court's colloquy with the probationer
. . . , but also to the totality of the attendant
circumstances.
"The totality of the circumstances means exactly that --
all the circumstances should be considered. Still, some
circumstances are likely to have particular relevance in
the revocation hearing context. These include evidence
that sheds light upon the target's comprehension of the
charges against him and evidence as to his appreciation of
the nature of the rights afforded him by Rule 32.1. In the
final analysis, however, courts should beware of assigning
talismanic significance to any single fact or circumstance.
The question of waiver entails endless permutations, and
each case is quite likely to be sui generis."
Id. at 23 (citations omitted).
16
In sum, we agree that a defendant's agreement to waive a
probation revocation hearing -- such as by stipulating to
violations -- must be knowing and voluntary and that such waiver
can be assessed under the totality of the circumstances. In
Correa-Torres, when faced with the defendant's contention that
his attorney's stipulation to a violation on his behalf could
not effectuate a valid waiver because the record did not show
that he understood his rights and waived them, the court held:
"Apart from the absence of a specific finding, nothing in the
record adequately evinces that the appellant understood the
nature of the accusation that triggered the revocation
proceeding." Correa-Torres, 326 F.3d at 24. "While such an
express finding is not ordinarily required in connection with a
waiver of rights, it is infinitely more difficult to find a
valid waiver based on a silent record." Id. at 23 (citation
omitted).
In the case before us -- despite the evidentiary hearing
focusing on the defendant's waiver -- the record remains
deficient on the critical question: whether the waiver by the
intellectually disabled individual here was knowing and
voluntary at the time of the stipulation. While the motion
judge made "a specific finding that the appellant's waiver was
knowing and voluntary," ibid., we conclude that there is
inadequate support for this determination.
17
Attorney Clifford's testimony 9 -- credited by the motion
judge -- does not establish that the waiver here by stipulation
was knowing and voluntary. The judge found:
"Attorney Clifford testified that on each day of hearing,
he met with the defendant both prior to the hearing and
subsequent thereto and also visited the defendant on
several occasions at the Worcester County Jail. Attorney
Clifford also agreed that he accepted the finding of
competency on behalf of the defendant as expressed in the
forensic report of Dr. Schonberger and further that
Attorney Clifford stipulated as to the content of the
notice of violation that is on behalf of the defendant,
Attorney Clifford stipulated to the probation violation.
In this regard Attorney Clifford went through his normal
and customary practice, that is, he would have met
extensively with the defendant, gone through each and every
allegation as contained in the notice of violation and then
would have discussed whatever defenses the defendant had to
the violations. Attorney Clifford understood that there
were difficulties with this defendant in terms of his
ability to understand information and Attorney Clifford
testified that it would be his practice to take as much
time as was needed to assure himself that the defendant
understood the information that was being provided."
The defendant, however, testified before the motion judge that
while Attorney Clifford "tried to explain" what would be
happening in the revocation proceeding, "I don't recall me
9
The defendant contends on appeal that the motion judge
erred in allowing the Commonwealth's "Motion for Court Order
Declaring Defendant's Attorney-Client Privilege Waived." We
disagree. The defendant's motion for release criticized
Attorney Clifford's conduct in stipulating to the probation
violations, implicitly suggesting that he had communicated to
his attorney his desire to contest the allegations and
explicitly stating that counsel had entered the stipulation
without his consent. Under these circumstances, the privilege
as to confidential communications was waived. See, e.g.,
Commonwealth v. Garvin, 456 Mass. 778, 784-787 (2010);
Commonwealth v. Woodberry, 26 Mass. App. Ct. 636, 637-640
(1988).
18
saying, okay, fine. Like I said, again, if you say something to
me, two minutes later or three minutes later, I will forget the
whole thing."
Given the defendant's difficulty processing information,
Attorney Clifford's testimony about his conversations before and
after the stipulation is not sufficient to show the defendant's
understanding at the time of the stipulation. His testimony --
credited by the motion judge -- that, although he did not have a
specific memory of the conversations he had with the defendant,
he would have contested any of the allegations had the defendant
sought to do so and that he carefully reviewed the individual
allegations and procedures to challenge them with the defendant
beforehand -- is similarly insufficient. 10
While the motion judge was able to take some measure of the
defendant, who testified at the hearing, the defendant's
testimony does not undermine his contention that he did not
knowingly and voluntarily agree to waive the hearing on
violations. The judge found:
10
At the hearing, Attorney Clifford testified that he
stipulated to probation because as a strategic matter, where it
was clear that the judge was seeking to devise a placement plan
for the defendant that would include alternatives to
incarceration, and where at least one of the numerous alleged
violations was meritorious, a stipulation would put his client
in a compassionate light. While that may have been wise as a
strategic matter, its wisdom does not resolve whether the waiver
was knowing and voluntary.
19
"The defendant testified that he has a second or third
grade education level and that he does become confused
about certain things. The defendant confirmed, however,
that he understood that Attorney Peter Clifford was his
lawyer and that Attorney Clifford met with him in court and
also went to the jail to visit him a number of times in
addition to the meetings at court."
The fact that the defendant understood his relationship with his
lawyer, however, does not resolve the question of waiver. The
motion judge did not make any findings with respect to the
defendant's testimony at the hearing that he did not recall
agreeing to waive a hearing or that he had difficulty retaining
information. Indeed, in July, 2008, not long after the June 3,
2008, probation violation determination, the defendant sent
Attorney Clifford a handwritten letter which states: "Is all of
the things being done to me legal? . . . When are you going to
challenge all of the things that the state and the place that I
was living has done to me?" Attorney Clifford testified that he
"assume[d]" that he had discussed with the defendant whether "he
wanted to rescind or take back the stipulation that had been
entered into and have a hearing on the merits." He would have
put on the record at the time of the August 14, 2008, sentencing
that the defendant "now has reservations about stipulating to
the violations." Even though the motion judge credited Attorney
Clifford's assessment of his own general practice and concluded
that the defendant must not have been concerned with the waiver,
we cannot read so much from the absence of the expression of
20
such a concern at the August 14 hearing. If anything, the
defendant's July, 2008, letter supports his claims at the motion
hearing that he had concerns with his waiver and did not
understand the stipulation.
To be sure, the assessment whether this intellectually
disabled defendant had knowingly and voluntarily waived his
right to a revocation hearing would have been facilitated if the
court had inquired of him personally. In Correa-Torres, 326
F.3d at 24, where the defendant was not mentally impaired, the
First Circuit noted that, had the record demonstrated that "the
court advised the appellant of his rights or that counsel
reviewed those rights with him," it could have concluded as a
matter of appellate review that the defendant's waiver was
knowing and voluntary. Here, while the record supports a
determination that Attorney Clifford reviewed those rights with
the defendant, given the defendant's mental impairment and the
evidence of his lack of understanding of the ramification of the
stipulation, we cannot conclude, in the totality of the
circumstances, that at the time of the revocation proceeding the
defendant waived his rights knowingly and voluntarily. 11
11
Although on the record here the Commonwealth has not
proved that the defendant knowingly and voluntarily waived a
revocation hearing and stipulated to a violation, that does not
mean that we have concluded that he is not competent to do so in
any future circumstances.
21
Finally, we note that the claim that a colloquy is required
by due process before a judge accepts a waiver of a probation
revocation hearing has been rejected not only by the First
Circuit but by all the other Federal circuit courts that have
considered it. See, e.g., United States v. Pelensky, 129 F.3d
63, 68 (2d Cir. 1997); United States v. Manuel, 732 F.3d 283,
291 (3d Cir. 2013) ("rigid or specific collogu[y]" not required
in parole revocation hearing); United States v. Farrell, 393
F.3d 498, 500 (4th Cir. 2005); United States v. Hodges, 460 F.3d
646, 652 (5th Cir. 2006) ("Although a thorough colloquy .. . may
be the most precise means of evaluating the voluntariness of a
waiver, the failure . . . to engage in a comprehensive colloquy
is not of itself, fatal to the defendant's waiver"); United
States v. LeBlanc, 175 F.3d 511, 515-516 (7th Cir. 1999); United
States v. Taylor, 747 F.3d 516, 519 (8th Cir. 2014); United
States v. Segal, 549 F.2d 1293, 1296 (9th Cir. 1977); United
States v. Fay, 547 F.3d 1231, 1234 (10th Cir. 2008). While, as
this case shows, good arguments can be made that the
"solemnizing" of a contemporaneous waiver protocol is desirable
"in aid of sound judicial administration," Ciummei v.
Commonwealth, 378 Mass. 504, 508-509 (1979), such rule-making
falls within the ambit of the Supreme Judicial Court and outside
the purview of this court. See ibid.
22
Conclusion. The order revoking probation is vacated, and
the matter is remanded to the Superior Court for further
proceedings consistent with this opinion.
So ordered.