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16-P-429 Appeals Court

COMMONWEALTH vs. HENRY JOHNSON.

No. 16-P-429.

Bristol. April 10, 2018. - September 14, 2018.

Present: Agnes, Massing, & Neyman, JJ.

Due Process of Law, Probation revocation, Hearing. Practice, 

Criminal, Probation, Revocation of probation, Stipulation, 

Waiver, Assistance of counsel. Waiver.

Indictments found and returned in the Superior Court 

Department on October 19, 2011.

A proceeding for revocation of probation was heard by Renee 

P. Dupuis, J., and a motion to withdraw a stipulation was also 

heard by her.

Xiomara M. Hernandez for the defendant.

Tara L. Johnston, Assistant District Attorney, for the 

Commonwealth.

AGNES, J. In Commonwealth v. Sayyid, 86 Mass. App. Ct. 

479, 489 (2014), this court held that in order for an admission 

to a violation of probation and a waiver of the right to a 

revocation hearing to be valid, the record must demonstrate 
2

that, in the totality of the circumstances, the defendant's 

decision was made knowingly and voluntarily. The question 

before us is whether the judge was correct in denying the 

defendant's motion to withdraw his admission to violations of 

his probation based on his claim that he was misinformed by his 

attorney about the potential maximum sentence that the judge 

would impose if the judge revoked his probation. For the 

reasons that follow, we agree with the judge that the 

defendant's admission and his waiver of the right to a probation 

violation hearing were made knowingly and voluntarily. 

Accordingly, we affirm.

Background. 1. The defendant's guilty pleas. On December 

20, 2013, the defendant pleaded guilty to indictments charging

as follows: one count of rape of a child, three counts of 

indecent assault and battery on a child under the age of 

fourteen, and one count of dissemination of obscene matter to a 

minor. He was sentenced to concurrent terms of from three years 

to three years and one day in State prison on two of the counts

of indecent assault and battery, and two years of probation on 

the remaining three counts, including the charge of rape of a 

child, to be served upon release from State prison. The terms 

of the defendant's probation required that he wear a global 

positioning system (GPS) monitoring device, attend and 

successfully complete sex offender counselling, report to a 
3

probation officer, stay away from the victim, register as a sex 

offender, and have no unsupervised contact with children under 

the age of sixteen.

Briefly, the facts underlying the charges to which the 

defendant pleaded guilty are that in 2010, the victim, a child 

under the age of fourteen, disclosed to her maternal grandmother 

that on diverse dates when she was between the ages of five and 

eight the defendant, her mother's then live-in boy friend, 

sexually assaulted her. Among other things, the victim 

disclosed that the defendant put his fingers in her vagina and 

forced her to put his penis in her mouth.

2. Final probation violation hearing. Upon his release 

from State prison on September 16, 2014, the defendant began his 

two-year period of probation. Because he wished to reside with 

his mother in New Bedford, supervision of his probation was 

transferred from Suffolk County to Bristol County. A notice of 

violation of probation and an arrest warrant issued on October 

9, 2014, because the defendant had failed to report to his 

probation officer, was not residing at the address he had 

provided to the probation department and the Sex Offender 

Registry Board, had failed to attend an outpatient sex offender 

treatment program, and had removed his GPS monitoring bracelet. 

Additionally, after the defendant was released from prison, the 

victim saw him in the same store where she was shopping with her 
4

grandmother. The victim informed her grandmother, who in turn 

telephoned the police. The defendant was brought in on the 

arrest warrant on October 13, 2014, and appeared before the 

Superior Court on October 15.

A final probation violation hearing was scheduled for 

January 5, 2015. On that day, the parties were ready for the 

hearing. At the request of defense counsel, there was a sidebar 

conference attended by the defendant's counsel, the prosecutor 

who had represented the Commonwealth at the defendant's change 

of plea, a probation officer, and the judge. The defendant was 

present in the court room, but did not hear the conference. 

Defense counsel indicated that her client was prepared to accept 

an additional one year of incarceration to resolve the case, but

stated, "I discussed with him a two to three in order to dispose 

of it being more in line with the allegations . . . ." The 

Commonwealth sought an eight- to ten-year sentence. The judge 

informed the parties that she needed more information, and that 

before making a decision she wanted an aid in sentencing 

evaluation. She further stated that the defendant's sentence 

"could run the gamut from some period of incarceration to 

reprobating again." The sidebar concluded with defense counsel 

informing the judge that the defendant was "prepared to 

stipulate to the alleged facts, concede to sufficient facts to 

find him in violation of probation."
5

After the sidebar conference, the judge informed the 

defendant on the record that he was alleged to have violated the 

terms and conditions of his probation. She then informed the 

defendant that he was entitled to have his attorney represent 

him at an evidentiary hearing to determine whether he was in 

violation of his probation. The defendant said he understood.

He was then asked by the judge whether he wanted to waive his 

right to an evidentiary hearing and to stipulate to the 

probation violations. The defendant responded in the 

affirmative. The defendant then verbally agreed with the facts 

in support of each alleged probation violation and waived his 

right to a probation violation hearing. The defendant was not 

asked to sign a written form acknowledging that he understood 

the implications of stipulating to a probation violation and 

waiving his right to a hearing. Nor was the defendant informed 

that no agreements had been reached about whether the judge 

would revoke his probation and, if she did, what sentence would 

be imposed.

3. Dispositional hearing.1 On February 13, 2015, the 

dispositional hearing took place. Once again, the judge,

 

1 Under § 6(B) of the Guidelines for Probation Violation 

Proceedings in the Superior Court, Mass. Rules of Court, at 1013 

(Thomson Reuters 2018), a final probation violation hearing 

consists of two parts: "(1) an evidentiary hearing to 

adjudicate whether the alleged violation has occurred; and (2) 

upon a finding of violation, a dispositional hearing."
6

defense counsel, the prosecutor, and the probation officer had a 

recorded sidebar conference. By this time, the judge had 

received two aid in sentencing reports from Bridgewater State 

Hospital. Counsel had an opportunity to review the reports.

The judge invited counsel to make recommendations as to the 

disposition that she should make. The prosecutor explained the 

reasons for her earlier recommendation, but added that she would 

be satisfied with an alternative recommendation of five years in

State prison. Defense counsel indicated that her client would 

prefer reprobation with different terms and conditions, but in 

the alternative she would recommend a sentence of from three

years to three and one-half years in State prison. The judge 

took the matter under advisement during the lunch recess.

The case was called again later that same day.2 The 

probation officer made a recommendation of from three to five 

years in State prison. The judge announced her sentence as 

follows: "[I]n consideration of the violation on the underlying 

offense, on all three charges I'm going to sentence him to three 

to six. He's not an appropriate candidate for probation. He 

 

2 There is no indication in the transcript that when the 

case was called the second time there was a sidebar conference, 

and we assume the hearing was in open court in the presence of 

the defendant.
7

should have some parole interaction when he's released."3 The 

sentences were to be served concurrently. Neither the defendant 

nor his counsel raised an objection based on the judge having 

exceeded the maximum sentence that the defendant later alleged 

she had assured defense counsel she would not exceed.

4. Hearing on motion to withdraw admission. On June 3, 

2016, represented by a new attorney, the defendant filed a 

motion to withdraw his admission to the probation violations. 

The factual basis for the motion was the defendant's allegation,

set forth in his affidavit, that his prior attorney informed him 

that during the sidebar conference held on January 5, 2015, the 

judge stated that if the defendant admitted to the violations, 

she would not impose a sentence in excess of three years in

State prison. By the date of the hearing on January 18, 2017, 

successor counsel had obtained an affidavit from the defendant's 

prior counsel. In that affidavit, prior counsel states in 

pertinent part her recollection that during the sidebar 

conference held on January 5, 2015, the judge said "she would 

[not] go over a set number," and "[t]he number was lower than 

that which was imposed but there were no guarantees made to the 

defendant." When at the hearing the judge pointed out that 

prior counsel's affidavit was not supported by the transcript of 

 

3 The judge thereafter corrected the sentence on the charge 

of disseminating obscene material to a minor to from three to 

five years in State prison.
8

the sidebar conference, successor counsel agreed, and argued 

that the defendant did not hear the sidebar conference. Rather, 

the defendant's misunderstanding resulted from his attorney 

giving him incorrect information. The prosecutor responded by 

arguing that even if the defendant was misled about the maximum 

sentence the judge would impose for the violation of probation, 

he was not prejudiced because he had no defenses to the alleged 

probation violations.

Discussion. A defendant's agreement to waive a probation 

violation hearing by admitting to the alleged violations of 

probation and waiving the right to a hearing is valid only if it 

is made knowingly and voluntarily in light of the totality of 

the circumstances. Sayyid, 86 Mass. App. Ct. at 489. See 

§ 6(B) of the Guidelines for Probation Violation Proceedings in 

the Superior Court, Mass. Rules of Court, at 1013 (Thomson 

Reuters 2018) ("The court may accept a probationer's stipulation 

to a violation of probation as alleged in the Notice of 

Surrender if the judge finds after colloquy that the probationer 

is tendering a knowing and voluntary stipulation"). See also 

Rule 6(g) of the District/Municipal Courts Rules for Probation 

Violation Proceedings, Mass. Rules of Court, at 648 (Thomson

Reuters 2018) ("The court may accept an admission to an alleged 

probation violation and a waiver of the right to a violation 

hearing only upon a determination that the admission and waiver 
9

have been made knowingly and voluntarily").4 There is no 

requirement that an admission or a stipulation to violations of 

probation and a waiver of the right to a violation hearing be in 

writing, but judges are authorized to require it.5

The essential factual underpinning of the defendant's 

motion to withdraw his stipulation is that his attorney at the 

probation violation hearing misinformed him about the sentence

the judge would impose if the defendant admitted to the 

violations. However, the judge did not credit the defendant's 

affidavit, and thus there is no basis for his claim that his 

admission was not knowing and voluntary. See Commonwealth v. 

Pingaro, 44 Mass. App. Ct. 41, 48 (1997) ("The credibility, 

weight, and impact of the affidavits in support of [a] motion 

are entirely within the [motion] judge's discretion").

Moreover, as the judge reasoned, even assuming that defense 

counsel gave the defendant incorrect advice about what sentence 

the judge would impose if the defendant admitted to the 

 

4 Compare Mass. R. Crim. P. 23 (a), 471 Mass. 1501 (2015)

(governing manner in which stipulations of fact agreed to by 

parties before or during trial are to be memorialized and used 

at trial); Mass. G. Evid. § 611(g) (2018) (explaining use of 

stipulations in pending civil and criminal cases).

5 The District and Municipal Court departments have 

developed an approved form that is available to all judges, 

which memorializes the defendant's admission and waiver of the 

right to a final hearing. See Commentary to Rule 6(g) of the 

District/Municipal Courts Rules for Probation Violation 

Proceedings, Mass. Rules of Court, supra at 650. This form is 

contained in the Appendix to this opinion.
10

violations, the defendant cannot satisfy the requirements for 

establishing an ineffective assistance of counsel claim. To 

make out such a claim, the defendant first must demonstrate 

there was a "serious incompetency . . . falling measurably below 

that which might be expected from an ordinary fallible lawyer," 

Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), and, second, 

that counsel's deficient performance likely deprived the 

defendant of an otherwise available, substantial ground of 

defense. Id. Here, the defendant's claim of ineffective 

assistance fails because there is no evidence that he was 

prejudiced by the waiver of a probation violation hearing. 

There is nothing in the record or the defendant's brief 

indicating that he had a defense to the charges that he cut off 

his GPS bracelet, failed to report to probation, failed to live 

at the stated address, and failed to participate in sex offender 

treatment. The defendant also did not explain how he could have 

expected a different outcome had he been granted a hearing. 

See, e.g., Commonwealth v. Bowen, 92 Mass. App. Ct. 793, 799 

(2018) ("Where the defendant offers no viable defense to the 

probation violations, he cannot demonstrate that the factual 

stipulations, even if prompted by reliance on allegedly 

unreasonable assurances of a sentence capped at from five to six 

years in State prison, likely deprived him of an otherwise 

available, substantial ground of defense").
11

We take this occasion to commend the judge for the manner 

in which she conducted the probation violation and dispositional 

hearings. The record before us indicates that the two sidebar 

conferences were on the record. See Murphy v. Boston Herald, 

Inc., 449 Mass. 42, 57 n.15 (2007). See also Commonwealth v. 

Fanelli, 412 Mass. 497, 501 (1992). In her discussions with the 

prosecutor, defense counsel, and the probation officer, the 

judge was careful not to condition any stipulation by the 

defendant to the probation violations on any proposed 

disposition, whether it was the recommendation of the prosecutor

or the probation officer. See § 6(B) of the Guidelines for 

Probation Violation Proceedings in the Superior Court, Mass. 

Rules of Court, supra at 1013 ("[T]he court shall not be bound 

by any agreement between the probationer and probation officer 

or District Attorney regarding the disposition to be imposed").6 

 

6 The same principle applies in probation violation 

proceedings in the District Court and Boston Municipal Court 

departments. See Commentary to Rule 6(g) of the 

District/Municipal Courts Rules for Probation Violation 

Proceedings, Mass. Rules of Court, supra at 650, which provides 

in pertinent part:

"Section (g) also provides that, unlike a guilty plea or 

admission to sufficient facts to a criminal charge, an 

admission to a probation violation may not be accompanied 

by conditions which, if not accepted by the court, would 

allow the probationer to withdraw the admission. In other 

words, there is no equivalency to the 'defendant-capped 

plea' which can be tendered in the context of a criminal 

proceeding. The court may allow a probationer to withdraw 

a probation violation admission based on the court's 
12

Furthermore, the judge confined herself to identifying the 

information she needed to make an informed disposition and to 

listening to the recommendations made by the parties, the 

factual basis for the defendant's earlier pleas of guilty, and 

the general nature of the alleged violations. The record 

indicates that "the bare fact of the communication to the judge 

of the sentencing alternatives . . . discussed by counsel,"

Commonwealth v. Damiano, 14 Mass. App. Ct. 615, 619–620 (1982),

did not coerce the defendant into admitting to the violations 

and waiving his right to a hearing. The judge did not 

participate in the sidebar conferences as an "active 

negotiator[]" with regard to the ultimate disposition of the 

case. Commonwealth v. Gordon, 410 Mass. 498, 501 n.3 (1991). 

Cf. id. (restricting judicial involvement in plea negotiations). 

Finally, the judge followed the preferred practice of conducting 

 

intended disposition as a matter of its discretion. The 

probationer may not withdraw an admission as a matter of 

right once an admission is submitted and accepted by the 

court. . . .

"The prohibition in section (g) against 'conditioned' 

probation violation admissions also precludes admissions 

conditioned by proposed dispositions 'agreed to' by the 

probation department or by a prosecutor. Such an agreement 

does not bind the court or permit the withdrawal of the 

admission if the court's disposition is other than that 

'agreed upon' by a probation officer or prosecutor. The 

court may consult with probation regarding the disposition 

after finding a probation violation. See Rule 8(d). But 

for probation violation admissions there is no equivalent 

to the tender of criminal guilty pleas which may include 

dispositional terms agreed to by the prosecution."
13

a colloquy with the defendant in which she fairly and 

meticulously secured the defendant's agreement to the factual 

basis for each of the alleged violations prior to accepting his 

admission and his waiver of the right to a hearing.7

Accordingly, the order revoking probation and imposing 

sentence is affirmed. The order denying the defendant's motion 

to withdraw his stipulation to probation violations also is 

affirmed.

So ordered.

 

7 There are, of course, many sound reasons why a judge may 

elect to conduct a sidebar conference with the prosecutor, 

defense counsel, and the probation officer, but without the 

defendant, including security issues that arise when, as in this 

case, the defendant is in custody. In light of the defendant's 

allegations that he was misinformed about the contents of the 

sidebar conference, it is advisable that in such cases the 

judge's colloquy include a statement that no decision has been 

made about the disposition of the case and, if the defendant 

admits to one or more of the alleged violations, the judge 

reserves the right not only to allow the defendant to remain on 

probation, but to revoke the defendant's probation and to impose 

any sentence permitted by law.
Appendix.

PROBATION VIOLATION HEARING 

ADMISSION TO VIOLATION AND 

WAIVER OF HEARING

DOCKET NO(s) Trial Court of Massachusetts

District Court Department

PROBATIONER’S NAME & ADDRESS PCF NO. COURT NAME

PROBATIONER’S ADMISSION AND WAIVER

I, the undersigned probationer, understand and acknowledge that I am voluntarily and 

knowingly giving up my right to a hearing before a judge on the issue of whether I have violated 

the terms and conditions of my probation.

I have received written notice of the probation violation(s) that have been alleged. I have 

been notified of my right to request court-appointed counsel if I am determined to be indigent, 

or the right to retain private counsel.

I understand that I have the right to present witnesses and evidence in my own behalf at 

the Probation Violation Hearing and have the right to confront and cross-examine witnesses 

against me. I understand that, absent my admission and waiver, the Probation Department 

would have the burden of proving by a preponderance of the evidence that I violated a 

condition of my probation.

My admission and waiver of a Probation Violation Hearing is a free and voluntary act on 

my part and is not the result of force, threats, or intimidation. It is not the result of any promise 

or assurance as to the disposition that might be made should a violation be found.

I understand that my admission and waiver are not subject to any condition regarding the 

disposition in these proceedings. I understand that I will not be entitled to withdraw my waiver 

and admission once it is accepted by the judge.

I am not now under the influence of alcohol, drugs, medications, or any other substance 

that might impair my ability to fully understand the legal rights that I am waiving by giving up 

my right to an evidentiary hearing on whether I have committed a violation of a condition of 

probation and by admitting that I have committed a violation of a condition of probation, nor 

do I have a mental or physical condition that might cause such impairment.

DATE SIGNATURE OF PROBATIONER

X
15