Commonwealth v. Sayyid (Lawyers Weekly No. 11-130-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 11-P-2150 Appeals Court COMMONWEALTH vs. ABDULLAH MUHAMMAD SAYYID.1 No. 11-P-2150. Worcester. March 7, 2014. – October 6, 2014. Present: Katzmann, Rubin, & Carhart, JJ. Due Process of Law, Probation revocation, Hearing. Practice, Criminal, Revocation of probation, Probation, Stipulation, Waiver. Intellectually Disabled Person. Mental Impairment. Waiver. Indictments found and returned in the Superior Court Department on July 30, 1999. A proceeding for revocation of probation was heard by Kathe M. Tuttman, J., and Peter W. Agnes, Jr., J., and a motion for release from unlawful restraint was heard by Daniel M. Wrenn, J. Eleanor Hertzberg for the defendant. Stephen J. Carley, Assistant District Attorney, for the Commonwealth. 1 At the time of the probation revocation hearing, the defendant’s name was Anthony J. Conley. He formally changed his name to Abdullah Muhammad Sayyid through an order of the Probate and Family Court in August, 2009. 2 KATZMANN, J. 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. Background. After being examined for competency and criminal responsibility pursuant to G. L. c. 123, § 15(a), the defendant executed a waiver of rights and entered an Alford plea (North Carolina v. Alford, 400 U.S. 25 [1970]) to one count each 3 of rape of a child under sixteen by force in violation of G. L. c. 265, § 22A, and indecent assault and battery on a child under fourteen in […]