PROBATION VIOLATION IN ESSEX SUPERIOR COURT

On December 3, 2009 MS, then 20 years old, was convicted of Assault & Battery with a Dangerous Weapon and Armed Home Invasion in Salem (MA) Superior Court. On the A&B D/W charge she was given a 2 1/2 year sentence to the House of Correction: 18 months to be served and the balance (1 year) suspended to August 2013. On the Home Invasion charge, which carries a 10 year mandatory minimum sentence to State Prison, she was given probation to August 2013. She served 9 months of the 18 month sentence and was paroled.

On April 22, 2013 MS – 4 months prior to the date her probation is to end – MS got arrested for a DUI in Haverhill. She blew a high breathalyzer. One of the conditions of her probation was that she was to remain alcohol free. She was clearly in violation of probation. MS was very frightened that her probation in the Superior Court would be revoked and that the Judge would sentence her to finish the one year suspended sentence that was still hanging over her head – not to mention the 10 year State Prison sentence that was hanging over her head.

MS was also concerned about the DUI case; her concern was that the Judge in Haverhill District Court would see that she was on probation for a very serious crime and that the Judge in Haverhill would give her a harsh sentence.

MS retained Attorney Robert Lewin to handle both the DUI case in Haverhill District Court and the Probation Violation Hearing in Essex County Superior Court in Salem, MA.

Attorney Lewin immediately contacted the District Attorney’s Office at the Haverhill District Court and the Probation Officer in Essex Superior Court. Attorney Lewin was able to negotiate a CWOF (continuance without a finding) of the DUI case in Haverhill District Court with the minimal first offense disposition (45 day loss of license and the First Offender Driver Alcohol Education Program). The Judge in Haverhill District Court went along with the agreed disposition that Attorney Lewin and the DA had worked out.

The real problem was the Probation Violation Hearing. The Judge sitting in the First Session in Salem is tough, particularly in probation violation matters. Attorney Lewin spoke a number of times with the Probation Officer in the Superior Court. Finally the Probation Officer agreed to recommend that the Judge not sentence MS back to jail but rather that the Judge extend MS’s probation for one year. On Friday, May 17, 2013 MS and Attorney Lewin and the Probation Officer appeared before the Judge in Superior Court. The Judge voiced some displeasure with the recommendation of simply extending MS’s probation for one year. The Judge said: “This is a serious violation of probation. She had been ordered NOT to drink as a condition of probation; nevertheless she drank, she drank to excess, and then she drove – all the time knowing she was on probation with 11 years hanging over her.” Everyone in the courtroom could tell the Judge was not happy with MS. Attorney Lewin made an impassioned pitch to the Judge to extend MS’s probation for the one year and not to send her back to jail. Attorney Lewin pointed out that she had got a job and was working hard to support herself. The Judge said he was putting MS into custody (it was noontime on Friday, May 17, 2013) and that the Judge was going to order her held over the weekend and brought back to court on Monday, May 20, 2013. MS spent the weekend in MCI Framingham and was brought back to Court on Monday morning, May 20, 2013. On Monday morning after a full probation violation hearing the Judge ordered her released from custody and extended her probation for one year.

Some Judge’s call this a shock incarceration. The purpose of the shock incarceration is to get the probationer to realize that probation is serious business and that any further violations will be treated very harshly.

MS was very happy with the result, notwithstanding the fact that she had to spend a weekend in jail. Wins come in all sizes and shapes. Given the fact that she was on probation for an armed home invasion and had 11 years of suspended time hanging over her head, she was thrilled to be out in one weekend. Now hopefully she will keep her nose clean until August 2014. By the way, Monday, May 20, 2013 – the day she got released – was her 25th birthday. Not a bad birthday present.