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14-P-1763 Appeals Court

COMMONWEALTH vs. JOSE RIZ.

No. 14-P-1763.

Bristol. March 9, 2016. - August 12, 2016.

Present: Cypher, Cohen, & Neyman, JJ.

Practice, Criminal, Probation, Sentence. Constitutional Law, 

Sentence. Due Process of Law, Sentence.

Indictments found and returned in the Superior Court 

Department on July 21, 2011. 

The cases were tried before Gary A. Nickerson, J. 

James A. Reidy for the defendant.

Corey T. Mastin, Assistant District Attorney, for the 

Commonwealth.

NEYMAN, J. In this case, we consider whether a probation 

condition that the defendant, Jose A. Riz, not "minimize" his

criminal activity "during his sex abuse treatment . . . in his 

contact with church authorities . . . [and] in dealing with 

[his] probation officer" is unconstitutionally vague. We hold 

that the condition does not provide reasonable guidance with 
2

respect to what conduct is prohibited, and therefore violates 

the due process clause of the Fifth and Fourteenth Amendments to 

the United States Constitution.1 

Background. In 2010 and 2011, the defendant lived at his 

brother's apartment, along with his brother and his brother's 

oldest daughter (the victim, who was also the defendant's 

niece). During this timeframe, the defendant had sexual contact 

with the victim on multiple occasions, including vaginal, anal, 

and oral sex. The victim was thirteen and fourteen years old at 

the time, while the defendant was eighteen and nineteen years 

old. The final instance of abuse occurred on May 8, 2011. That 

night, the defendant, who had consumed alcohol and smoked 

marijuana, pulled the victim into his room, undressed her, lay

on top of her, and touched her vagina with his penis. The 

defendant's brother discovered the victim leaving the 

defendant's room, and the victim subsequently told her mother of

her sexual relationship with the defendant. The defendant was 

arrested, and, during an interview with the police, confessed to 

having had sex with the victim on more than one occasion. The 

defendant was indicted for statutory rape, G. L. c. 265, § 23;

incest, G. L. c. 272, § 17; and assault of a child under the age 

1 The defendant does not challenge the condition under the 

Massachusetts Declaration of Rights. 

 
3

of sixteen with intent to commit rape, G. L. c. 265, § 24B.2 At 

his jury trial in the Superior Court, the defendant testified 

that he was drunk on the night of May 8, denied having any 

sexual contact with the victim, and claimed that his confession 

was the product of his intoxication. The jury convicted the 

defendant on all counts.

At sentencing, defense counsel told the judge, inter alia, 

that the defendant was from Guatemala, had developed some 

alcohol and marijuana problems, and had ongoing and strong 

involvement with his church. She further advised that the 

defendant had grown up in a different culture, and that "there 

is a certain amount of early sexual activity that goes on in the 

area of the world where he comes from. . . . That is what he 

was familiar with." The judge was also informed that the 

defendant had been rearrested, during the pendency of this case,

for an incident involving a prostitute. Finally, the judge 

observed or otherwise gleaned that several of the victim's 

family members had pressured the victim not to testify and had 

glared at the victim during the sentencing proceedings. 

The judge sentenced the defendant to concurrent prison 

terms of not less than four nor more than seven years for the 

statutory rape and incest convictions, and a concurrent sentence 

2 The defendant does not challenge his convictions. His 

appeal is limited only to the probation condition.

 
4

of ten years' probation for the conviction of assault of a child 

under the age of sixteen with intent to commit rape. The terms 

of probation contained various special conditions, including sex 

offender counseling, no unsupervised contact with minor 

children, and no employment or performance of volunteer 

activities "that puts [the defendant] into contact with minor 

children on a regular basis." The judge further ordered that 

the defendant was "not to minimize [his] crimes during treatment 

with church activities or with probation." The judge sought to 

clarify this condition by stating:

"In other words, [the defendant is] not to minimize 

his crimes involving [the victim] or his involvement with 

the prostitute during his sex abuse treatment.

"He's also not to minimize his criminal activity in 

his contact with church authorities -- I can't believe the 

church would knowingly put him with children if they knew 

the extent of his criminal involvement -- and he's not to 

minimize his criminal involvement in dealing with the 

probation officer." 

The defendant now appeals, claiming that the probation condition 

that he is "not to minimize his crimes" violates due process and 

the First Amendment to the United States Constitution. 

Discussion. Judges are permitted "great latitude" in 

imposing conditions of probation. Commonwealth v. Power, 420 

Mass. 410, 413 (1995), cert. denied, 516 U.S. 1042 (1996). As a 

general rule, a condition of probation is enforceable, even if 

it impacts a defendant's ability to exercise constitutionally 
5

protected rights, so long as it is "reasonably related" to the 

goals of sentencing and probation. Id. at 414-415. The 

principal goals of probation are "rehabilitation of the 

probationer and protection of the public." Commonwealth

v. Pike, 428 Mass. 393, 403 (1998), citing Power, supra at 417. 

Other goals include punishment, deterrence, and 

retribution. Ibid., citing Power, supra at 414. "These goals 

are best served if the conditions of probation are tailored to 

address the particular characteristics of the defendant and the 

crime." Ibid.

In the present case, the judge took pains to fashion a 

sentence that addressed the goals of public protection,

punishment, rehabilitation, and deterrence. Based on the nature 

of the offenses, the representations at sentencing concerning

the claimed cultural differences regarding "early sexual 

activity" that were ostensibly ingrained in the defendant, the 

defendant's involvement with the prostitute during the pendency 

of his case, and his connection with his church, the judge had 

reason to impose special conditions to protect the public and to 

foster the defendant's rehabilitation by underscoring the 

seriousness of his crime. Having determined that the 

defendant's sentence complied with the general goals of 

sentencing and probation, we now consider whether the condition 

at issue meets the specific requirements of due process. 
6

"Due process requires that a probationer receive fair 

warning of conduct that may result in revocation of probation; 

thus, probation conditions must provide reasonable guidance with 

respect to what activities are prohibited." Commonwealth

v. Kendrick, 446 Mass. 72, 75 (2006), and cases cited. This 

notice requirement can be satisfied by "an imprecise but 

comprehensible normative standard so that [people] of common 

intelligence will know its meaning." Ibid., quoting 

from Commonwealth v. Orlando, 371 Mass. 732, 734 (1977). 

See Power, supra at 421, quoting from Commonwealth v. Adams, 389 

Mass. 265, 270 (1983) ("[I]f the language which is challenged 

conveys sufficiently definite warning as to the proscribed 

conduct when measured by common understanding and practices, it 

is constitutionally adequate").

The defendant argues that neither he, nor his probation 

officer, nor the court itself, has sufficient guidance as to 

what acts or statements would constitute a violation of the 

condition at issue. He contends that absent further definition 

of the term "minimize," or clearly delineated examples of 

violative and nonviolative statements, the condition is 

impermissibly vague. The Commonwealth counters that the term 

"minimize" is hardly a complex term. It maintains that the 

plain meaning of the word clearly forecloses the defendant from 
7

denying or downplaying his culpability to those involved with 

his rehabilitation. 

Examining a realistic hypothetical quickly demonstrates the 

difficulty with the condition. When pressed to define the scope 

of the prohibited conduct, the Commonwealth suggested at oral 

argument that the defendant still could make statements 

consistent with the "truthful representation of the facts of

this case." However, it is entirely possible that even truthful 

representations of the facts could be deemed to be prohibited by 

the condition. For example, if the defendant were to state

truthfully that he had a drinking problem and was intoxicated at 

the time of some of the incidents, that could well be perceived 

as minimizing the severity of the crime, minimizing his intent, 

or minimizing his relative culpability. Indeed, the reach of 

the condition appears to have been designed to extend to 

truthful circumstances that were not a defense to the crimes, 

but which the defendant and his supporters may have considered 

to be mitigating. At a minimum, the condition is equivocal. 

"[P]robationers are entitled to reasonably specific conditions 

that provide clear guidelines as to what and when their actions 

or omissions will constitute a violation of their 

probation." Commonwealth v. Lally, 55 Mass. App. Ct. 601, 603 

(2002).
8

We have no doubt that the well-intentioned sentencing judge 

had the goals of public safety, punishment, and rehabilitation 

in mind when structuring the defendant's sentence. The judge 

may have also viewed our decision in Commonwealth v. Morales, 70 

Mass. App. Ct. 839 (2007), as permitting such a condition. In 

that case, our primary focus was on a residency condition, but 

in passing, we stated generally that the conditions imposed by 

the judge, including a similar "minimization" condition, "were 

not unreasonable." Id. at 841, 844. Morales, however, did not 

involve a constitutional due process challenge, and thus did not 

address the issue presently before this court. Having now 

reviewed the issue, we conclude that the special condition that 

the defendant not "minimize [his] crimes during treatment with 

church activities or with his probation officer" does not 

provide reasonable guidance with respect to what conduct is 

prohibited. Therefore, the condition violates the due process 

clause of the Fifth and Fourteenth Amendments to the United 

States Constitution.3 Accordingly, we order that the special 

condition of probation that the defendant not "minimize" his 

crimes during sex abuse treatment, in contact with church 

authorities, and in dealing with his probation officer be

vacated, and that the case be remanded to the Superior Court for 

3 Where we resolve the case on the due process claim, we 

need not address the challenge under the First Amendment.

 
9

consideration whether more clearly defined conditions of 

probation should be imposed, in the sentencing judge's 

discretion, in lieu of the one vacated. The judgments are 

affirmed in all other respects.

So ordered.