Commonwealth v. Vargas (Lawyers Weekly No. 10-113-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11895 COMMONWEALTH vs. DANNY VARGAS. Essex. November 2, 2015. – August 3, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.[1] Marijuana. Practice, Criminal, Probation, Revocation of probation, Assistance of counsel. Constitutional Law, Assistance of counsel. Indictment found and returned in the Superior Court Department on November 19, 2012. A proceeding for revocation of probation was heard by Richard E. Welch, III, J. The Supreme Judicial Court granted an application for direct appellate review. Michael D. Cutler for the defendant. Philip A. Mallard, Assistant District Attorney, for the Commonwealth. Eva G. Jellison & David J. Nathanson, for Committee for Public Counsel Services, amicus curiae, submitted a brief. David A.F. Lewis, Sarah Heaton Concannon, & Robyn R. Schwartz, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief. HINES, J. In this appeal, we are asked to decide whether the medical marijuana law, St. 2012, c. 369 (act),[2] establishing immunity for the medical use of marijuana, applies in a probation surrender proceeding based on the use of marijuana, purportedly for medical purposes. The issue arises from a judge’s order finding the defendant, who claimed immunity under the act, in violation of probation for the use of marijuana, terminating the probation and imposing a sentence to State prison. The defendant challenges the disposition and seeks a new probation surrender hearing, arguing that the sentence violates his right, as a qualifying patient under the act, to the medical use of marijuana without adverse legal consequences. He also argues that counsel was ineffective in failing to defend the probation surrender on this ground. The Commonwealth counters that the court permissibly conditioned the defendant’s probation on the prohibition of any nonprescription controlled substance, and properly terminated probation for failure to comply with this and other conditions. The Commonwealth also argues that counsel was not ineffective for failing to assert the immunity provision of the act where defense counsel’s decision to forgo a medical marijuana defense in favor of a plea for leniency was not manifestly unreasonable. We granted the defendant’s application for direct appellate review. We conclude that, in the circumstances of this case, the judge committed no error in finding the defendant in violation of his probation and that, although counsel was ineffective in […]