Whether a defendant violates probation running “from and after” his jail sentence if he commits a crime while still serving the sentence.

The defendant was convicted of various crimes and sentenced to two and a half years in the house of corrections, with a ten year term of probation to run “from and after” the sentence. While incarcerated, criminal complaints issued against the defendant for threatening to commit a crime and assaulting a corrections officer, ultimately resulting in a separate conviction and sentence of two and a half years. The probation department sought to revoke the defendant’s probation on the original crime. The judge found a violation and extended the term of probation from ten to eleven years.

The defendant appealed from the finding of probation violation, the Appeals Court affirmed, and the SJC granted further appellate review.

The question is whether the defendant was on notice, sufficient to satisfy due process, that a crime committed prior to his release would constitute a probation violation. The Appeals Court has previously held explicitly that a crime committed prior to commencement of probation is sufficient to support probation revocation under the probation statute—but that decision did not consider the question of due process. Commonwealth v. Phillips, 40 Mass. App. Ct. 801 (1996). More recently, the SJC found that non-criminal probation conditions are not in force during incarceration, unless the defendant is specifically on notice otherwise. Commonwealth v. Ruiz, 453 Mass. 474 (2009). The defendant argues that the Court should extend Ruiz to criminal violations of probation.

Ruiz carefully limited its holding to non-criminal conditions of probation. It distinguishing precedents relating to criminal violations on the basis that all citizens are already on notice that they cannot commit crimes, so no further notice is needed. Under that rationale, the defendant in this case must lose. It is difficult to harmonize that distinction with the rest of Ruiz, however, which is founded on the idea that “Due process … requires that a defendant sentenced to probation receive fair warning of conduct that may result in the revocation of probation” (emphasis added). The notice all citizens have that crimes may result in criminal convictions (as indeed, the defendant’s crimes did) does not put them on notice that crimes may result in probation revocation. There may be good reason to apply Ruiz to criminal probation violations.

(Such a decision may have relatively little impact in practice—the defendant apparently recognizes judges’ authority to modify terms of probation in light of new criminal convictions, even in the absence of a finding of violation.)