Date: 01-26-2016

Case Style: COMMONWEALTH OF MASSACHUSETTS vs. JOSEPH HUGAL.

Case Number: 15-P-429

Judge: Ariane D. Vuono, William J. Meade, Mark V. Green

Court: COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

Plaintiff's Attorney: Stephanie Martin Glennon

Defendant's Attorney: Stephen T. Cunningham

Description: After pleading guilty to armed assault with intent to
murder, assault and battery by means of a dangerous weapon,
mayhem, and assault by means of a dangerous weapon, the
defendant was sentenced to prison. In addition, he was placed
on lifetime probation subject to specific conditions,1 which the
defendant unsuccessfully moved to modify or terminate on five
separate occasions. On appeal, the defendant argues that the
judge improperly denied his sixth request for modification or
termination of probation. He makes numerous arguments in
support of his claim that are either waived, improper in this
appeal, or meritless.
The defendant claims that the judge's denial of his motion
constitutes violations of Massachusetts law, as well as the
Fifth, Sixth, and Fourteenth Amendments to the United States
Constitution.2 We disagree. Massachusetts General Laws c. 276,
§ 87, as appearing in St. 1974, c. 614, permits a Superior,
District, or Juvenile Court judge to "place on probation in the
care of its probation officer any person before it charged with
an offense or a crime for such time and upon such conditions as
it deems proper."3 A judge may then modify probationary terms
"from time to time as a proper regard for the welfare" of both
the defendant and community alike. Buckley v. Quincy Div. of
the Dist. Ct. Dept., 395 Mass. 815, 818 (1985).
2 The defendant also claims that he pleaded guilty as a result of ineffective assistance of counsel coupled with an inability to object to the actions of his attorney because he was taking strong antipsychotic medication. Neither a motion to terminate probation nor this appeal is the proper forum to raise and litigate such claims. As such, we decline to resolve them here.
3 The defendant also maintains G. L. c. 276, § 87, is unconstitutionally vague. Because this claim is not properly before us as a general or as-applied challenge, it is waived. See Commonwealth v. Moses, 436 Mass. 598, 605 n.4 (2002); Commonwealth v. Figueroa, 83 Mass. App. Ct. 251, 266 (2013). In any event, the statute itself and the specific conditions of the defendant's probation are comprehensible such that "men of common intelligence will know [their] meaning." Commonwealth v. Gallant, 373 Mass. 577, 580 (1977), quoting from Commonwealth v. Orlando, 371 Mass. 732, 734 (1977).

3
In this instance, the judge did not abuse his discretion in
denying the defendant's motion based on the Commonwealth's and
the defendant's submissions. See Commonwealth v. Morales, 70
Mass. App. Ct. 839, 846 (2007). Although a judge may eliminate
or modify conditions where a defendant has performed
exceptionally well, or there has been a material change in
circumstances, the judge here could properly find that the
defendant was not sufficiently rehabilitated to warrant
modification to conditions of his probation or elimination of
probation altogether. See Commonwealth v. Goodwin, 458 Mass.
11, 18 (2010). Moreover, the judge implemented some of the
conditions the defendant contends violate his fundamental rights
pursuant to the defendant's own motion to transfer his probation
to Florida.4 Contrary to the defendant's assertions, his
continuing probation sentence is proper and does not violate
double jeopardy principles.

Outcome: The judge properly denied the defendant's motion, and thus, did not abuse his discretion.

Plaintiff's Experts:

Defendant's Experts:

Comments: