The petitioners appeal from an order of a single justice of this court denying a series of motions, including a motion to file an untimely appeal and a motion "for suspension of the rules." We affirm.

The petitioners commenced an action in the county court, purportedly pursuant to G. L. c. 214, § 2, seeking, among other things, a declaration that art. 7 of the Massachusetts Declaration of Rights "preempts" art. 48, The Initiative, of the Amendments to the Massachusetts Constitution. After the petition was denied, the petitioners filed a motion for reconsideration. On reconsideration, the single justice allowed the judgment denying relief to stand. The petitioners then filed a notice of appeal, but failed timely to perfect their appeal, and as a result, their appeal was never entered on the full court docket. Thereafter, the petitioners filed in the county court several motions: for leave to file an untimely appeal; for "suspension of the rules"; for leave to file nonconforming papers; and for an emergency hearing, all of which the single justice denied. The petitioners then filed a request for clarification, which was denied, as well as a second notice of appeal.

This appeal, unlike their previous one, was properly perfected. The sole issue it properly raises is the correctness of the denial of the motions filed after they failed properly to perfect their initial appeal. The petitioners instead address, in their brief, the substantive merits of the issues raised in their petition before the single justice and that they attempted to raise in their initial appeal. The only relief they seek is the same relief sought therein (e.g., that the court find that art. 7 preempts art. 48). Those issues are not properly before the court.

Judgment affirmed.

Charles F. Tynan, pro se.

Peter Sacks, Assistant Attorney General, for the defendants.

Daniel Arroyo appealed from an order of a Superior Court judge revoking his probation and committing him to serve a State prison term of from three to five years. The Appeals Court affirmed the order, concluding that, although the judge erred in considering evidence of an alleged criminal offense that occurred after the probationary term had expired, it was "convinced that in this case, unlike in [Commonwealth v. Aquino, 445 Mass. 446 (2005)], even

Page 1011

absent the error in consideration of, and reference to, the [postprobationary term] offense, the revocation and sentencing disposition would remain unchanged." Commonwealth v. Arroyo, 70 Mass. App. Ct. 228, 233 (2007). We granted the defendant's application for further appellate review.

The essential facts are described in the Appeals Court's opinion, and we do not repeat them here. See id. at 229-231. Probation may be revoked if the evidence at a probation surrender hearing establishes, "at least to a reasonable degree of certainty, that the defendant had violated a condition or conditions of his probation." Commonwealth v. Maggio, 414 Mass. 193, 198 (1993). In considering the evidence, however, the judge "may not penalize the defendant for violations committed beyond" the probationary period. Commonwealth v. Aquino, supra at 449. See Commonwealth v. Sawicki, 369 Mass. 377 (1975). Including postprobationary conduct in the revocation calculus is improper. [Note 1] Id. at 384-385.

While violations of probationary conditions "may form the basis for the revocation of that probation," Rubera v. Commonwealth, 371 Mass. 177, 181 (1976), it is also true that not every violation requires revocation. Commonwealth v. Faulkner, 418 Mass. 352, 365 n.11 (1994). "There are two components to the decision to revoke probation: a retrospective factual question whether the probationer has violated a condition of probation and a discretionary determination by the judge whether violation of a condition warrants revocation of probation." Id. In making the discretionary determination whether to revoke the defendant's probation, the judge should not have weighed evidence of the defendant's postprobationary term conduct. The same also holds true with respect to the judge's determination of what sentence to impose after deciding to revoke probation. In this case, a fair reading of the sentencing transcript indicates that, while the judge did base his revocation and sentencing decisions in part on events that occurred during the probationary term, [Note 2] he also relied on postterm conduct. In particular, the record reflects that the postterm allegations of assault and battery were a substantial factor in the judge's decision to impose a State prison sentence of from three to five years.

In these circumstances, it is not for an appellate court to speculate "what action the judge would have taken had [he] found the defendant in violation of probation based on the violations committed during the original period of probation." Commonwealth v. Aquino, supra at 450-451. To do so would effectively, and improperly, supplant the judge's opportunity to exercise his discretion, on appropriate evidence, in the first instance. See Commonwealth

Page 1012

v. Arroyo, supra at 234 (Mills, J., dissenting) (role of reviewing court not to "determine what the judge would have done had he not committed that error"). Accordingly, we vacate the order revoking the defendant's probation, and remand the case to the Superior Court for consideration of the appropriate disposition, based solely on violations that occurred within the probationary period.

So ordered.

Donna Jalbert Patalano for the defendant.

Anne M. Thomas, Assistant District Attorney, for the Commonwealth.