COMMONWEALTH vs. TIMOTHY J. MORSE

LAURENCE, J. The defendant, Timothy J. Morse, was convicted in Clinton District Court in February, 1998, on his pleas of guilty to charges (inter alia) of indecent assault and battery on a child under fourteen (the minor daughter of one Hope Bushey), domestic assault and battery on Bushey, and violation of a no contact protective order obtained against him by Bushey. He

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received a sentence of two and one-half years, six months to be served in a house of correction, to be followed by two years supervised probation, one condition of which was to have no contact with Bushey or her family. On June 18, 1998, Bushey reported to Morse's probation officer, then complained to the Clinton police department, that the defendant had, on June 17, 1998, at approximately 5:30 P.m., seen her with her daughter and mother in her car at an intersection in Hudson and had yelled at her from his car, "Hey, bitch, don't think I'm done with you and your daughter yet."

Based upon Bushey's complaint, on June 18, 1998, a warrant issued from Clinton District Court for Morse's arrest. A "notice of surrender and hearing(s)" was also issued by his probation officer listing three claimed violations of the conditions of his probation: (1) the contact with Bushey on June 17, 1998; (2) failure to notify his supervising probation department of a change of address (from Berlin to Hudson); and (3) failure to register as a sex offender in the town where he resided (Hudson). The notice did not indicate whether the hearing on the violation was to be a preliminary hearing or a final revocation hearing. On June 19, 1998, Morse was arrested on the warrant and, after a bail hearing (at which he was represented by counsel), he was held on $50,000 cash bail (which he failed to raise). He was also served with the notice of surrender on June 19. At his arraignment, Morse stated that his current address was in Hudson, although he had previously provided the probation department with an address in Berlin. His case was "continued to 6/23/98 for violation of probation hearing."

On June 23, 1998, the presiding judge appointed counsel for Morse, who claimed indigence. (The exact time of that appointment is not revealed by the record.) At some point thereafter (again, the time is unknown), an evidentiary hearing on the charged probation violations took place. Neither Morse nor his counsel raised as an issue whether this was a preliminary or a final revocation hearing. Bushey testified to the facts regarding the June 17 encounter. Morse's counsel cross-examined Bushey, and then had Morse testify in his own behalf. While admitting that he currently lived in Hudson with a woman named "Sally" and that he had neither informed the probation department of that fact nor registered as a sex offender in Hudson, Morse explained that he had never actually resided in Berlin, having only "stayed there [with his brother] probably one night," but claimed (without substantiation) that he had registered as a sex

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offender in Berlin. He explicitly denied (both in direct testimony and in response to a question from the judge) any contact with Bushey on June 17, claiming that he had been at an auto repair shop in Hudson from about 5:00 P.m. to 5:15 P.m. or possibly as late as 5:30 P.m., talking with "a guy named Tom" about a repair estimate. Admitting that he had no verification "today" that he was at the shop as he claimed, Morse said, "[I]f I can be granted more time to receive that I could . . . present that to the Court [Note 1]."

After closing arguments by the probation officer (who asked for immediate imposition of Morse's unserved sentence) and Morse's counsel (who began by saying that he "would like to have more time to at least prepare for this particular matter"), the judge stated, "I find him in violation of all [three] matters [Note 2]"; and sentenced Morse to serve two and one-half years on and after his "original" sentence. On July 3, 1998, Morse filed notices of appeal as to the probation violations found on two of his convictions, which were docketed in this court on December 4, 1998. No notice of appeal was filed as to the third until January 11, 1999 (with the approval of a single justice of this court). On July 24, 1998, Morse's counsel was permitted to withdraw.

On July 28, 1998, Morse filed, pro se, a "motion to revise and revoke," claiming that the sentences imposed on the probation violations were "too harsh." In an affidavit supporting the motion, he acknowledged that on June 17, 1998, he had in fact 6 'coincidentally r[u]n into [Bushey] at a traffic light in . . . Hudson . . . [while she was] a passenger in her mother's car," but he denied saying anything to her [Note 3]. The motion to revise and revoke was heard in Clinton District Court on December 28,

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1998, by a new judge (the probation surrender judge having retired). Morse was represented at the hearing by a new attorney. The judge denied the motion [Note 4] and also corrected the sentence

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imposed on the defendant by his predecessor. (The corrected sentence is not currently challenged on appeal.)

Morse's appeal raises several alleged constitutional defects in his probation surrender and revocation proceedings. We agree with the Commonwealth that no reversible error occurred and that the revocation of Morse's probation should be affirmed.

1. Insufficient time for counsel to prepare. Pointing to the undoubted right of one facing probation revocation to have a "reasonable opportunity to prepare" for the hearing, and in particular a reasonable opportunity for counsel to aid him in his defense, Commonwealth v. Faulkner, 418 Mass. 352, 358-360, 365 (1994), quoting from Commonwealth v. Cavanaugh, 371 Mass. 46, 50 (1976), Morse asserts that his due process rights were violated by being given no more than four days' notice of the hearing on the alleged violations and being assigned counsel only on the day of the hearing [Note 5]. His argument founders on the fact that, while mentioning that they wished they had had more time to prepare, neither he nor his counsel moved for a continuance, much less made an offer of proof or even a statement regarding what they would do or what evidence they would present if they received more time to prepare [Note 6].

Even were we to construe their unspecific comments as

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requests for a continuance, action on such a request "lies within the sound discretion of the judge, and will not be disturbed unless there is a clear abuse of discretion." Commonwealth v. Habarek, 402 Mass. 105, 108 (1988). Morse has failed to argue, let alone demonstrate, any such abuse on this record, and we discern none. -[I]t was a simple case to prepare and try . . . [and] the record does not support [his] contention that the denial of his motion for [a] continuance prejudiced his case." Ibid. See Commonwealth v. Joubert, 38 Mass. App. Ct. 943, 943-944 (1995) (no abuse of discretion in judge's refusing to allow a motion for a continuance on the morning of the scheduled probation revocation hearing being held, as here, on an accusation of a violative incident involving a single witness, where the probationer had, as here, four days' notice of the accusation, and defense counsel had the morning to interview the witness "and to conduct any investigation deemed necessary" before the hearing began in the afternoon). (As a cautionary note, we remind all participants in the process that there is no mechanical test for evaluating a motion for a continuance; rather, it must be considered in light of the circumstances of the particular case and only after balancing the relevant factors weighing for

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and against the need for delay. See Commonwealth v. Cavanaugh, 371 Mass. at 50-51).

2. Lack of preliminary hearing. Relying on Commonwealth v. Odoardi, 397 Mass. 28, 33 (1986), Morse protests that he was given only a final probation hearing and not the preliminary hearing to which he was entitled and which the record does not show he waived. He asserts that his due process rights were thereby violated in a manner that was not harmless beyond a reasonable doubt because the error "contribute[d] to the [outcome]." It is sufficient to reject his conclusory contention by noting that Morse fails to explain how the lack of a preliminary hearing in fact contributed to the adverse outcome, i.e., how he was in any way prejudiced.

Indeed, Odoardi tilts against Morse on this very point. There, the probationer challenged the Notice of Surrender and Hearing(s), ordering him to appear in court on a certain date for a hearing on the charge that he had violated the terms of his probation, as constitutionally defective [Note 7] because it failed to indicate whether the proceeding was to be a preliminary or a final revocation proceeding. While acknowledging that the notice was in fact "unclear," the court stated that

"there was no confusion that the . . . hearing [when held] was a final hearing, and the record reveals no objection by the defendant to the adequacy of the notice. It does not appear that the defendant was in any way prejudiced by the type of notice given. . . . [D]efense counsel . . . assumed that it was a final, rather than a preliminary, revocation hearing. There was no element of surprise involved. It is therefore difficult to perceive how the probation authorities' failure to specify in the notice what type of hearing was to convene . . . could have affected the defendant adversely."

397 Mass. at 32 [Note 8]. See, in this regard, Delisle v. Commonwealth, 416 Mass. 359, 362-363 (1993), in which the probationer

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contended that his due process rights were violated by receiving inadequate notice of the date of the revocation hearing and by being denied a continuance to retain counsel of his own choosing for the surrender hearing. The court rejected these contentions, on the same combined failure-to-raise-below and no-showing-of-prejudice bases as in Odoardi:

"The [probationer] did not present this issue [as to the notice] to the [tribunal below], and it is therefore not properly before us. We note, nonetheless, that even if the [probationer] received inadequate notice . . . [his] failure to show any prejudice is fatal to his claim [citing Odoardi]. . . . [As to] the claim that he was denied a continuance to retain counsel . . . [t]he record contains no suggestion that the [probationer] requested [such] a continuance . . . . See [Commonwealth v.] Durling, [ 407 Mass. 108, 112 [19901 (probationer not entitled to full panoply of protections applicable at criminal trial)."

A probationer's limited due process rights in connection with revocation proceedings, whether viewed as civil or quasi criminal, are, as these authorities demonstrate, subject to both waiver (like any right, constitutional or otherwise) and harmless error analysis [Note 9]. See Commonwealth v. Rivera, 429 Mass. 620, 623 (1999) (where the court rejected the defendant's appellate

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challenge to the constitutionality of police no-knock entry into his home without a reasonable belief he was inside because he did not raise it below, stating that "[b]ecause the defendant did not alert the trial judge to this argument, the waiver doctrine precludes him from doing so on appeal," and quoting Commonwealth v. Amirault, 424 Mass. 618, 641 n. 15 [1997], for the proposition that "a right that must be claimed [Note 10] is not denied if it is not claimed, and the proceeding in which the claim is not made is, in that respect, wholly free from error"); Davis v. Tabachnick, 425 Mass. 1010 (1997) ("[W]e shall not address the merits of the plaintiffs' claims because there is nothing in the record before us that indicates that those claims were adequately raised and preserved in the [lower court proceedings.")

In light of the strength of the Commonwealth's evidence on the three alleged violations (two being admitted by Morse at the time and the third being acknowledged by him shortly thereafter), combined with the want of any valid defense thereto on Morse's part and his failure to make any showing of prejudice either below or here, it cannot be rationally concluded that a preliminary hearing prior to the final hearing on June 23, 1998, would have been of any material benefit to Morse. See Commonwealth v. Brown, 23 Mass. App. Ct. 612, 616-617 (1987) ("In the end . . . the axe fell because of the defendant's own admissions," notwithstanding " 'the defendant's arguments concerning [supposedly inadequate] notice and other procedural deficiencies as to the [revocation] hearing.' " As stated in a comparable situation, "There is little doubt on this record that, if the required hearing had been held, process [in that case, an arrest warrant] would [still] have issued." Commonwealth v. Lyons, 397 Mass. 644, 647 (1986) (in which the defendant claimed

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reversible error from the Commonwealth's failure, in violation of G. L. c. 218, s. 35A, to afford him a probable cause hearing to oppose the issuance of the arrest warrant).

Even without deciding whether the issuance of the warrant for Morse's arrest satisfied the underlying rationale of the preliminary hearing requirement [Note 11], and even giving him the benefit of the most stringent constitutional test in criminal cases,

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harmlessness beyond a reasonable doubt [Note 12], we can state with confidence that any error that may have occurred by reason of the absence of a preliminary hearing was, on this record, unimportant to the point of insubstantiality and did not contribute in any meaningful way to the revocation ruling. See Commonwealth v. Perez, 411 Mass. 249, 260-261 (1991); Commonwealth v. Owens, 414 Mass. 595, 603-605 (1992); Commonwealth v. Gibson, 424 Mass. 242, 245-246 (1997); Commonwealth v. Alphas, 430 Mass. 8, 13-14 (1999).

3. Statement of reasons and evidence. Morse finally asserts that his due process rights were violated by the failure of the judge to set forth a separate statement of the evidence he relied on to support the revocation of probation, either orally at the hearing or later in the judge's written "findings and orders." He speculates that the judge may have improperly relied upon an outstanding c. 209A restraining order Bushey had obtained against him, which was admitted in evidence over his objection that it was not a noticed basis for the revocation proceeding. Since that order is not contained in his record appendix, his conjecture thereon is unpersuasive, particularly in light of the fact that the judge did make a written finding, that "defendant violated his . . . probation . . . [by] contact with [the] victim [on] 6/17/98" - a finding plainly derived from Bushey's testimony [Note 13]. To the extent the restraining order also prohibited contact, it would have been superfluous [Note 14].

Although a separate written statement of the evidence relied

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on and the reasons for revocation is one of the probationer's due process rights in such proceedings, it is not an inflexible or invariably mandatory requirement and can be satisfied in other ways. See Fay v. Commonwealth, 379 Mass. 498, 504-505 (1980); Commonwealth v. Durling, 407 Mass. at 113-114 (transcription of revocation proceedings accurately reflecting the evidence relied on and reasons for revocation sufficient). See also note 11, supra. It is literally correct that the judge did not explicitly set forth the evidence he relied on (which we agree he preferably should have done). But this was a simple, straight forward case, and the entirety of the short transcript (aside from Morse's discredited false alibi) is that inculpatory evidence: Bushey's eyewitness account of their encounter and Morse's own admissions regarding his failures of required notifications. There is no reasonable basis on this record for a claim of unfair surprise or prejudice supposedly arising from the judge's reliance upon improper or inadequate evidence. Contrast Commonwealth v. Maggio, 414 Mass. at 197-199 (the only evidence introduced at revocation hearing were copies of grand jury indictments which contained none of the facts underlying them and also failed to refer to any of the evidence presented to the grand jury); Commonwealth v. Michaels, 39 Mass. App. Ct. 646, 648-649 (1996) (no evidence was introduced at revocation hearing except the fact that the defendant's probation had been revoked in another court for unknown violations of unknown conditions at unknown dates). Morse "had actual knowledge of the 'evidence relied on and [the] reasons for revoking [his probation],' " and fundamental due process was not violated in

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that respect. Fay v. Commonwealth, 379 Mass. at 504-505, quoting from Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973).

The only questions in this case are whether Morse received his minimal due process rights, or their functional equivalent; whether the record discloses sufficient reliable evidence to warrant the findings by the judge that Morse had violated the specified conditions of his probation; and whether the basic due process goals, of providing "fair treatment" to the probationer and an accurate basis for determining whether revocation was proper, were achieved. See Commonwealth v. Durling, 407 Mass. at 113-114, 116. We conclude that those questions can confidently be answered affirmatively. "All that is [otherwise] required for revocation of probation is that the court be satisfied that the probationer has abused the opportunity given him to avoid incarceration." Rubera v. Commonwealth, 371 Mass. 177, 181 (1976), quoting from Roberson v. Connecticut, 501 F.2d 305, 308 (2d Cir. 1974). The judge below was properly so satisfied, and so are we. The order revoking Morse's probation is therefore affirmed.

So ordered.