Criminal – Probation – Revocation – Hearing – Waiver

Listen to this article

Where a judge revoked a defendant’s probation, a remand is necessary because the record does not support a conclusion that the defendant’s waiver of an evidentiary hearing was knowing and voluntary.

“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.”

Commonwealth v. Sayyid (Lawyers Weekly No. 11-130-14) (22 pages) (Katzmann, J.) (Appeals Court) Proceeding for revocation of probation was heard by Tuttman, J., and Agnes, J., and a motion for release from unlawful restraint heard by Wrenn, J., in Superior Court. Eleanor Hertzberg on appeal for the defendant; Stephen J. Carley for the commonwealth (Docket No. 11-P-2150) (Oct. 6, 2014).