Commonwealth v. Gibson (Lawyers Weekly No. 11-103-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 13-P-1076 Appeals Court COMMONWEALTH vs. DONALD GIBSON. No. 13-P-1076. Hampden. February 18, 2015. – August 10, 2015. Present: Green, Grainger, & Massing, JJ. Practice, Criminal, Probation, Revocation of probation, Assistance of counsel. Due Process of Law, Probation revocation, Assistance of counsel. Constitutional Law, Assistance of counsel. Indictments found and returned in the Superior Court Department on February 22, 2006. A hearing on an order to show cause why the defendant should not be deemed to have forfeited his right to counsel at a probation revocation proceeding was had before C. Jeffrey Kinder, J., and a proceeding for revocation of probation was heard by Richard J. Carey, J. Glynis Mac Veety for the defendant. Bethany C. Lynch, Assistant District Attorney, for the Commonwealth, submitted a brief. GREEN, J. After a hearing at which the defendant proceeded without counsel, a judge of the Superior Court found that the defendant had violated conditions of his probation, and entered an order revoking his probation and imposing a sentence. On appeal, the defendant challenges the judge’s ruling before the revocation hearing that he had forfeited his right to counsel.[1] We discern no error in the ruling, and discern no merit in the defendant’s other claims of error in the revocation proceeding itself. We accordingly affirm the order of revocation. Background. On August 8, 2008, the defendant was convicted by a jury on two charges of indecent assault and battery on a child under fourteen. He was sentenced on count one to not less than eight years and not more than ten years in State prison. On count two he was sentenced to probation for fifteen years to run concurrently with the sentence on count one, with the condition, among others, that he have no contact with the victim (the defendant’s daughter) or her mother without their express authorization.[2] On September 14, 2011, the probation department filed a notice of surrender alleging that the defendant, while still incarcerated, had sent letters to the victim. Following a hearing on April 16, 2013, at which the defendant proceeded without counsel, a Superior Court judge found the defendant in violation of the conditions of his probation, revoked his probation and sentenced him to not less than seven years and not more than eight years from and after the sentence […]