author: Barteau, Senior Judge.

text:
    Steven BETHEL, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
    Court of Appeals Case No. 18A-PC-117
    Court of Appeals of Indiana.
    Filed October 16, 2018
    Attorney for Appellant: Marielena Duerring, South Bend, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Monika Prekopa Talbot, Supervising Deputy Attorney General, Indianapolis, Indiana
   Barteau, Senior Judge.

Statement of the Case

[1] Steven Bethel appeals the denial of his successive petition for post-conviction relief. We affirm.

Issue

[2] Bethel raises one issue, which we restate as: whether the post-conviction court erred in denying his claim of ineffective assistance of trial counsel.

Facts and Procedural History

[3] The facts of Bethel's case, as stated by the Indiana Supreme Court, are as follows:

[O]n March 5, 1991, the defendant agreed to assist Curtis Crenshaw in obtaining money and [ ] they went to the J & S Dairy Mart in South Bend, Indiana, at approximately 11:20 p.m. Armed with handguns, they approached Robaska and Wrobel, two store employees, as they were closing the store. The defendant held a gun to Robaska's head, Crenshaw grabbed Wrobel, and together they forced the two clerks back into the store. The defendant and Crenshaw tried unsuccessfully to obtain cash from the safe. One of the robbers threatened to shoot Robaska. They also forced Wrobel to empty his pockets, but he had no cash. The defendant and Crenshaw then took the two clerks back outside, told them to lie on the ground behind an ice machine, and began walking away. Robaska and Wrobel got up and observed the defendant and Crenshaw. Describing the ensuing events, Wrobel testified:
They were about fifteen feet away, and [Crenshaw] turned around, and he pointed the gun at us, and I grabbed Patty [Robaska] and pulled her back down because I knew what comes out of a gun. And we laid there, and we heard a fire.
There was no testimony as to the length of time that elapsed between the time Wrobel and Robaska went back down to the ground and the time the shot was fired. No witnesses testified as to the position of Crenshaw's weapon or the direction it was pointed when fired. There was no injury to either Robaska or Wrobel, nor was there evidence of bullet damage to the ice machine or surrounding area. No bullet was recovered.
Approximately ten minutes later, the defendant and Crenshaw entered the Burger Dairy store in South Bend and found three men inside. They robbed the three at gunpoint, taking cash from the register and a wallet from one of the men. During the robbery, Charles Flora attempted to enter the store, and the defendant pointed a gun at him. Flora ran to his van in the parking lot and called the police from his van. The defendant and Crenshaw came out of the store while Flora was still in the lot. The direct examination of Flora includes the following:
[Prosecutor] Did-before you were shot at, did you see the people that came out of the store? You said you saw them, right?
[Flora] When they both ran out of the store, they both looked directly at my van.
[Prosecutor] Did you see whether they had anything in their hands?
[Flora] They had a gun in their hand.
[Prosecutor] Both of them?
[Flora] I'm not sure if both of them did. One I know did.
[Prosecutor] Was the gun pointed at you?
[Flora] When they ran out, no.
[Prosecutor] At some point in time, was it?
[Flora] Yes.
[Prosecutor] When was that?
[Flora] They was partly across the drive lot, and they pointed at my van, and I heard two or three shots. I know it was more than one shot.
[Prosecutor] What did you do?
[Flora] Well, I got down in my van and proceeded to go back up onto the lot because I didn't know what to do.
Neither Flora nor his van was hit, and no bullets were ever found. Although Flora stated at trial that he did not see and was "not sure" which of the two men shot at him, record at 681, he testified that he gave a statement to police within about an hour of the shooting in which he identified Crenshaw as the person who shot at him. As the defendant and Crenshaw attempted to flee, they successively encountered two police officers and fired shots at each officer.

Bethel v. State , 730 N.E.2d 1242, 1244-45 (Ind. 2000) (footnotes and record citations omitted).

[4] Officers captured Bethel and Crenshaw after a car chase, which ended when Crenshaw crashed the car. During the chase, an officer saw Bethel throw something out of the car. A police officer with a K-9 unit later searched the area and found a revolver. The same officer found a second revolver near the Burger Dairy store. Robert Lucas, who worked at the Burger Dairy store, recognized the revolvers as the guns that were used in the attempted robbery.

[5] The State charged Bethel with two counts of attempted robbery, two counts of robbery, and four counts of attempted murder. The State further alleged he was an habitual offender. Bethel was tried by jury and testified in his own defense, claiming Crenshaw forced him under threat of death to accompany him as he committed the offenses. The jury determined Bethel was guilty as charged and was also an habitual offender. The trial court sentenced Bethel to 120 years.

[6] Bethel belatedly appealed. The Indiana Supreme Court reversed two of the counts of attempted murder, determining that there was insufficient evidence to prove that he had attempted to kill Robaska and Flora. Id. at 1246. The Court affirmed his other convictions. The reversal of the two convictions resulted in Bethel's sentence being reduced to 102 years.

[7] Next, Bethel filed a petition for post-conviction relief in Cause Number 71D08-0502-PC-10. The post-conviction court denied Bethel's petition in 2012, and he appealed. Bethel claimed on appeal that the trial court had erred in admitting certain evidence and in determining that he was an habitual offender. A panel of this Court issued a memorandum decision affirming the post-conviction court's judgment, concluding both claims were waived for post-conviction review. Bethel v. State , No. 71A03-1203-PC-139, 2013 WL 684793 (Ind. Ct. App. Feb. 25, 2013).

[8] A panel of this Court later authorized Bethel to file a successive petition for post-conviction relief. Bethel v. State , No. 71A04-1602-SP-396 (Ind. Ct. App. March 29, 2016). Next, Bethel filed a successive petition alleging ineffective assistance of counsel. The post-conviction court held an evidentiary hearing and denied Bethel's successive petition. This appeal followed.

Discussion and Decision

[9] In his successive petition for post-conviction relief, Bethel claimed he received ineffective assistance of trial, appellate, and post-conviction counsel. In this appeal, Bethel presents only a claim of ineffective assistance of trial counsel.

[10] The purpose of a petition for post-conviction relief is to provide a means for raising issues unknown or unavailable to a defendant at the time of the original trial and appeal. Dixon v. State , 760 N.E.2d 613, 614 (Ind. Ct. App. 2001). When a petitioner has already been afforded the benefit of a direct appeal, post-conviction relief contemplates a rather small window for further review.

Emerson v. State , 812 N.E.2d 1090, 1095 (Ind. Ct. App. 2004). Thus, post-conviction procedures do not provide petitioners with a "super appeal." Richardson v. State , 800 N.E.2d 639, 643 (Ind. Ct. App. 2003), trans. denied .

[11] Post-conviction proceedings are civil proceedings in which the petitioner must prove claims by a preponderance of the evidence. Hampton v. State , 961 N.E.2d 480, 491 (Ind. 2012). When appealing from the denial of a petition for post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment. Campbell v. State , 19 N.E.3d 271, 274 (Ind. 2014). To prevail on appeal, the petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Id.

[12] The post-conviction court made findings of fact and conclusions of law in accordance with Indiana Post-Conviction Rule 1(6). On review, findings of fact are accepted unless they are clearly erroneous. Witt v. State , 938 N.E.2d 1193, 1196 (Ind. Ct. App. 2010), trans. denied . The post-conviction court is the sole judge of the weight of the evidence and the credibility of witnesses. Id. By contrast, we do not defer to the post-conviction court's legal conclusions. Campbell , 19 N.E.3d at 274.

[13] Bethel argues his trial counsel rendered ineffective assistance by presenting evidence and argument in support of a defense of duress even though that defense was legally unavailable in his case. He claims his attorney "chose to adhere to a defense that was clearly not legally available" and demonstrated he did not "know the applicable law" or "simply chose to ignore the settled law in this area." Appellant's Br. p. 10.

[14] Where a post-conviction petitioner brings a petition following a direct appeal or prior petition for post-conviction relief, allegations of error asserted therein may not be raised in the absence of a showing that the issue was unascertainable or unavailable at the time of trial, direct appeal or prior petition. Clay v. State , 533 N.E.2d 1270, 1273 (Ind. Ct. App. 1989), trans. denied . Bethel could have raised his claim of ineffective assistance of trial counsel during his first post-conviction proceeding in Case Number 71A03-1203-PC-139. We conclude the claim is waived.

[15] Waiver notwithstanding, with respect to claims of ineffective assistance of trial counsel, the Indiana Supreme Court has stated:

To establish a post-conviction claim alleging violation of the Sixth Amendment right to effective assistance of counsel, a defendant must establish the two components set forth in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, a defendant must show that counsel's performance was deficient. This requires a showing that counsel's representation fell below an objective standard of reasonableness and that counsel made errors so serious that counsel was not functioning as 'counsel' guaranteed to the defendant by the Sixth Amendment. Second, a defendant must show that the deficient performance prejudiced the defense. This requires a showing that counsel's errors were so serious as to deprive the defendant of a fair trial, meaning a trial whose result is reliable. To establish prejudice, a defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is one that is sufficient to undermine confidence in the outcome.

Passwater v. State , 989 N.E.2d 766, 770 (Ind. 2013) (citations and quotations omitted).

[16] The Indiana Supreme Court has further stated:

Counsel is afforded considerable discretion in choosing strategy and tactics, and we will accord those decisions deference. A strong presumption arises that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. We recognize that even the finest, most experienced criminal defense attorneys may not agree on the ideal strategy or the most effective way to represent a client. Isolated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective.

Smith v. State , 765 N.E.2d 578, 585 (Ind. 2002) (citations omitted). Further, a poor strategic choice does not necessarily establish ineffective assistance of counsel "even though such choices may be subject to criticism or ... ultimately prove detrimental to the defendant." Garrett v. State , 602 N.E.2d 139, 142 (Ind. 1992). For these reasons, we will not lightly speculate as to what may or may not have been an advantageous trial strategy as counsel should be given deference in choosing a trial strategy which, at the time and under the circumstances, seems best. White v. State , 25 N.E.3d 107, 134 (Ind. Ct. App. 2014), trans. denied .

[17] At the time Bethel committed his offenses, a defendant could potentially avoid criminal liability by proving he or she "was compelled" to engage in the prohibited conduct "by threat of imminent serious bodily injury to himself or another person." Ind. Code § 35-41-3-8 (1977). A successful defense of duress establishes a "lack of criminal culpability" for "otherwise criminal acts." Sanders v. State , 466 N.E.2d 424, 428 (Ind. 1984) (discussing statutory defenses including duress). Among other limitations, the defense "does not apply to a person who ... committed an offense against the person as defined in IC 35-42." Id. There is no dispute that Bethel's offenses of robbery, attempted robbery, and attempted murder are crimes against the person.

[18] To determine the reasonableness of Bethel's trial counsel's strategic choices, it is necessary to understand the case against Bethel as presented at his original trial in 1991. In relevant part, the State alleged that Bethel attempted to rob, or assisted Crenshaw in attempting to rob, Don Wrobel and Patrizia Robaska at the J & S Dairy Mart, and then attempted to rob, or assisted Crenshaw in attempting to rob, Robert Lucas and others at the Burger Dairy store. The State further alleged that Bethel attempted to kill, or assisted Crenshaw in attempting to kill, Officer Gary Jerzak and Corporal Richard Powers. For each charge, the State claimed that Bethel either committed the offenses as the principal actor or was criminally liable because he aided Crenshaw in committing the offenses. Tr. Ex. Vol. 3, p. 43.

[19] In determining whether a person aided another in the commission of a crime, we consider the following factors: (1) presence at the scene of the crime; (2) companionship with another engaged in criminal activity; (3) failure to oppose the crime; and (4) a defendant's conduct before, during, and after the occurrence of the crime. Woods v. State , 963 N.E.2d 632, 634 (Ind. Ct. App. 2012). An accused's mere presence at the scene of a crime, or mere acquiescence in the commission of a crime, is insufficient to convict the accused as an accomplice. Peterson v. State , 699 N.E.2d 701, 706 (Ind. Ct. App. 1998).

[20] Based on our review of the trial transcript, Bethel's counsel did not raise a statutory defense of duress to excuse otherwise criminal acts because counsel did not concede that Bethel had committed any criminal acts in the first place. Instead, counsel claimed: (1) Bethel was not guilty of any charges as a principal actor because Crenshaw committed all offenses; and (2) Bethel was not guilty as an accomplice because Crenshaw coerced him under threat of death into accompanying Crenshaw on the crime spree. Counsel claimed Bethel was merely present for Crenshaw's crimes, and mere presence is insufficient to establish accessory liability. Bethel's counsel explained his theory of defense to the jury during closing argument:

Now, you have two counts of Robbery. You've heard Stephen say that he was there because he was afraid, because he had been coerced or under duress. It is not a defense to commit the crime of Robbery or Attempted Murder under duress, but it can explain how somebody can be at a place where a robbery is being conducted without taking part in that robbery, where you accompany the person who is doing the robbery, that you don't do it yourself, you do nothing to aid and abet him.

Tr. Ex. Vol. 4 p. 94. Rather than displaying ignorance of the law, Bethel's counsel clarified that his strategy was to challenge the evidence supporting the State's case. He did not concede, implicitly or explicitly, that the State proved the offenses but that Bethel was not guilty due to duress.

[21] Counsel's defense strategy was reasonable due to the extensive evidence that placed Bethel at the scenes of the crimes. At trial, Wrobel identified Bethel as one of the J & S Dairy Mart suspects. Robert Lucas and Charles Flora, who witnessed the Burger Dairy store incident, both told the jury that they had identified Bethel as one of the suspects after Bethel's arrest based on Bethel's clothing and body type. In addition, at trial Officer Jerzak identified Bethel as one of the suspects. Corporal Powers identified Bethel as one of the suspects who fled in a car. Powers further stated he got a good look at Bethel, the passenger, because Bethel looked back at him several times. In addition, Corporal Powers saw Bethel throw something out of the car. Finally, after the fleeing car wrecked, Corporal Powers saw Bethel get out of the car and captured him at gunpoint.

[22] After the arrest, an officer searched the wrecked car and found a jacket that contained a telephone bill for Steven Bethel. Another officer with a K-9 unit searched areas near the Burger Dairy store and along the route of the car chase. The officer found a revolver near the location where Corporal Powers saw Bethel throw something out of the car. The officer further found another revolver near the Burger Dairy store. Lucas identified those revolvers as the guns that were used in the Burger Dairy store attempted robbery. Under these circumstances, it was reasonable for counsel to concede Bethel was present at the scene and develop a strategy of defense that accounted for Bethel's presence yet maintained his innocence.

[23] Bethel's counsel supported his theory of defense by stating during opening statements that "Stephen Bethel was as much a victim as the other person" and "[h]e was only acting out of fear for his own life." Tr. Ex. Vol. 3, p. 44. Further, counsel cross-examined Wrobel and Lucas, who admitted that Bethel never threatened them. In addition, on cross-examination Flora testified that he had initially told the police that Crenshaw, not Bethel, shot at him in the store's parking lot. Finally, during Bethel's case-in-chief, he testified that Crenshaw was angry at him due to an unpaid debt and had intimidated him into going along by firing a handgun in Bethel's vicinity.

[24] To be sure, counsel's defense strategy was not without challenges. Officer Jerzak and Corporal Powers both testified that Bethel, not Crenshaw, was the suspect who shot at them. Bethel's counsel addressed this issue by arguing to the jury that the officers were confused as to the identity of the shooter "in the heat of battle." Tr. Ex. Vol. 4, p. 99. Further, counsel's strategy was ultimately unsuccessful, because the jury found Bethel guilty as charged. Nevertheless, an unsuccessful defense strategy does not establish that counsel was "constitutionally ineffective." Hinesley v. State , 999 N.E.2d 975, 983 (Ind. Ct. App. 2013), trans. denied . We cannot conclude Bethel's trial counsel performed deficiently in selecting and pursuing his strategy.

[25] Bethel argues his counsel should have pursued a different, allegedly stronger strategy: challenging the on-site identifications of Bethel by witnesses Wrobel, Lucas, and Flora. After the officers arrested Bethel, they took him to the J & S Dairy Mart and the Burger Dairy store, where the three men separately identified Bethel as one of the suspects.

[26] We first reiterate that we do not "lightly speculate as to what may or may not have been an advantageous trial strategy." White , 25 N.E.3d at 134. Bethel's counsel chose to concede that Bethel was present for the offenses while arguing that Bethel was not criminally liable as either a principal or an accomplice. The attorney supported the theory at trial by providing evidence and argument, and by challenging the State's evidence.

[27] In any event, the Fourteenth Amendment's guarantee of due process of law requires the suppression of evidence when the procedure used during a pretrial identification is impermissibly suggestive. Rasnick v. State , 2 N.E.3d 17, 23 (Ind. Ct. App. 2013), trans. denied . In some circumstances, a show-up identification may be so unnecessarily suggestive and so conducive to irreparable mistake as to constitute a violation of due process. Id. (quotation omitted). The admissibility of a show-up identification turns on an evaluation of the totality of the circumstances and whether they lead to the conclusion that the confrontation was conducted in a manner that could guide a witness into making a mistaken identification. Gordon v. State , 981 N.E.2d 1215, 1218 (Ind. Ct. App. 2013). Our courts consider the following factors in evaluating the admissibility of a show-up identification:

(1) the opportunity of the witness to view the criminal at the time of the crime,
(2) the length of initial observation of the criminal,
(3) lighting conditions,
(4) distance between the witness and the criminal,
(5) the witness's degree of attention,
(6) the accuracy of the witness's prior description of the criminal,
(7) the level of certainty demonstrated by the witness, and
(8) any identifications of another person.

Id.

[28] Wrobel testified that he remembered Bethel as one of the suspects due to his unusual hairstyle. Wrobel had interacted with Bethel and Crenshaw for several minutes during the attempted robbery, at close range. Further, he unequivocally identified Bethel at trial.

[29] As for Lucas, he interacted with Bethel and Crenshaw for about ten minutes, at close range, inside the Burger Dairy store. Lucas had every incentive to pay attention to the men because they were armed. After Bethel and Crenshaw left, Lucas called the police and provided a description of the men. The description is not in the record, but twenty to thirty minutes later, officers brought Bethel and Crenshaw back to the Burger Dairy store. Lucas identified them based on their body types and Crenshaw's clothing, and he was certain in his identification. Finally, Flora saw Bethel and Crenshaw inside the Burger Dairy store as he approached it. He returned to his vehicle and saw them leave the store, both holding guns. After the police brought Bethel and Crenshaw back to the store twenty to thirty minutes later, Flora recognized Bethel by the clothes he wore and by a white streak in his hair.

[30] Considering the factors set forth above, especially the length of duration of the initial observations of Bethel and Crenshaw by the witnesses at close distance, we cannot conclude that the post-arrest show-up identification process was unduly suggestive. See Lyles v. State , 834 N.E.2d 1035, 1045 (Ind. Ct. App. 2005) (show-up identification process was not unduly suggestive; victim of robbery had encountered defendant close up for several minutes and provided an accurate description; victim later identified defendant as the robber), trans. denied . Challenging the show-up identifications would not have been a stronger or more effective strategy than the one counsel chose: attempting to show that Bethel was not guilty of the offenses because he was not the principal actor and was merely present for Crenshaw's crimes. Bethel has failed to demonstrate the post-conviction court erred in denying his successive petition for post-conviction relief.

Conclusion

[31] For the reasons stated above, we affirm the judgment of the post-conviction court.

[32] Affirmed.

[33] Mathias, J., and Altice, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Ara ERESIAN, Jr., & Another v. John Paul SCHEFFER & Others.
    SJC-12419
    Supreme Judicial Court of Massachusetts.
    November 13, 2018
    Ara Eresian, Jr., pro se.
    Evelyn J. Eresian, pro se.
    Meredith A. Swisher & Robert W. Stetson, III, for the respondents.
    Each of the two petitioners in this case, Ara Eresian, Jr., and Evelyn J. Eresian, is a trustee of a trust; both have initiated several lawsuits pertaining largely, if not wholly, to the foreclosure of a home in Shrewsbury in 1990; neither is an attorney. In the county court, the petitioners filed a petition pursuant to G. L. c. 211, § 3, in which they asked the court to address the issue whether a "non-lawyer trustee" is "entitled" to "self-representation." That is, they asked the court to address the issue whether a trustee can appear "pro se" to represent a trust. As best we can discern from the petition, which is difficult to parse, the petitioners averred that in various lower court proceedings they were sometimes allowed to represent their respective trusts and sometimes not. A single justice denied the petition without a hearing.
    The petitioners filed a notice of appeal and, after the appeal was entered in this court, one of them, Evelyn, filed a motion for leave to file a "pro se" brief "on behalf of" the Marion D. Aharonian trust. Regardless of whether we were to allow the motion, and putting aside the fact that Ara has not joined the motion or otherwise sought to proceed with the appeal, the petitioners are not entitled to relief pursuant to G. L. c. 211, § 3. Such relief is properly denied "where there are adequate and effective routes ... by which the petitioning party may seek relief."
    Greco v. Plymouth Sav. Bank, 423 Mass. 1019, 1019, 672 N.E.2d 535 (1996). In the cases to which the petitioners referred in their petition, where, they allege, they were not allowed to proceed on behalf of their respective trusts, there is no reason why they could not have raised the "pro se" representation issue therein by, for example, raising it in an appeal from any adverse ruling or final judgment. Given the number of legal proceedings in which the petitioners are involved, they are undoubtedly aware of such avenues for review. This case does not, in short, present the type of exceptional circumstance that requires the exercise of this court's extraordinary power of general superintendence pursuant to G. L. c. 211, § 3.

      As trustee for Zitel Realty Trust.

      Evelyn J. Eresian, as trustee for Marion D. Aharonian.

      Martha M. Scheffer, and numerous other individuals and corporations who have not appeared in this appeal. The petitioners also named the Superior Court in Plymouth County as a respondent; the court is a nominal party only. See S.J.C. Rule 2:22, 422 Mass. 1302 (1996).

      Indeed, in at least one appeal Evelyn Eresian did raise the issue in an appellate brief (and she was represented by counsel at that time). That appeal was from a denial by a single justice of the Appeals Court of a motion, by Eresian, to vacate an order dismissing an underlying appeal, and the "pro se" issue was thus not addressed. See Eresian v. Scheffer, 92 Mass.App.Ct. 1110, 94 N.E.3d 438 (2017). Contrary to any suggestion by the petitioners, this by no means demonstrates that they did not have an adequate alternative remedy; rather, they had such a remedy but failed to properly pursue it.

   The single justice did not err or abuse his discretion in denying relief.

Judgment affirmed.

The case was submitted on briefs.


text:
    Mac S. HUDSON v. SUPERINTENDENT, MASSACHUSETTS CORRECTIONAL INSTITUTION, CONCORD, & Another.
    SJC-12285
    Supreme Judicial Court of Massachusetts.
    November 13, 2018
    The case was submitted on the papers filed, accompanied by a memorandum of law.
    Mac S. Hudson, pro se.
    Richard E. Gordon for the respondents.
    The petitioner, Mac S. Hudson, appeals from the judgment of a single justice of this court denying his petition for relief pursuant to G. L. c. 211, § 3. We dismiss the appeal as moot.
    The petitioner is a prisoner at the Massachusetts Correctional Institution, Concord. He filed a complaint in the Superior Court, pursuant to G. L. c. 249, § 4, seeking review of a certain inmate disciplinary report against him. A Superior Court judge denied the petitioner's motion to amend the complaint, and a single justice of the Appeals Court denied his petition seeking interlocutory review of that ruling under G. L. c. 231, § 118, first par. The petitioner thereafter filed a petition in the county court, pursuant to G. L. c. 211, § 3, seeking relief from the Superior Court's order. A single justice of this court denied the petition on the ground that the "petitioner has an adequate, alternate remedy and extraordinary circumstances are not present." See Mirrione v. Jacobs, 446 Mass. 1001, 1001, 841 N.E.2d 1255 (2006), quoting Greco v. Plymouth Sav. Bank, 423 Mass. 1019, 1019-1020, 672 N.E.2d 535 (1996) ("Review under G. L. c. 211, § 3, does not lie where review under [G. L.] c. 231, § 118, would suffice"). See also Stolpinski v. McGillicuddy, 425 Mass. 1002, 1002, 680 N.E.2d 933 (1997) (denial of motion to amend complaint may be addressed on direct appeal). The petitioner appeals.
    After the single justice denied relief, the underlying inmate disciplinary report was dismissed, the guilty finding was expunged from the petitioner's administrative record, and the amount he was ordered to pay in restitution was returned to his institutional account. The respondents moved in the Superior Court to dismiss the certiorari complaint as moot, and the petitioner consented to the dismissal of the disciplinary report and expungement of his record. The judge dismissed the complaint on the ground of mootness, and final judgment to that effect has entered.
    The case is now before us on the respondents' motion to dismiss the petitioner's appeal from the judgment of the single justice. Where the underlying disciplinary report has been dismissed, and the complaint seeking certiorari review is no longer pending, the appeal is moot in the sense that the relief the petitioner sought from the single justice, i.e., leave to amend his complaint, can no longer be granted. See Martin v. Commonwealth, 452 Mass. 1028, 1029, 897 N.E.2d 991 (2008). It is also moot with respect to the original certiorari complaint that was filed; the dismissal of the disciplinary report, "in effect, rendered moot any defects in the underlying proceedings." Burns v. Commonwealth, 430 Mass. 444, 447, 720 N.E.2d 798 (1999).
    Appeal dismissed.

      Lauren Vinisky.

      According to the G. L. c. 211, § 3, petition, the proposed amendments generally sought to correct certain "deficiencies" in the petitioner's complaint, to raise additional claims related to the disciplinary hearing, and to add other claims concerning alleged retaliation and other disciplinary proceedings. The petitioner argued that relief was warranted under c. 211, § 3, because, if those matters were not joined in the Superior Court proceeding, applicable limitations periods or principles of claim preclusion might impede his ability to assert them.

      The petitioner's appeal is subject to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), which applies where, as here, a single justice denies relief from an interlocutory ruling of the trial court.

      The petitioner opposes dismissal of this appeal. He continues to assert that the Superior Court judge erred in denying his motion to amend the complaint to add additional claims. That issue can be or could have been raised as part of a direct appeal from the judgment dismissing the complaint. Particularly in a circumstance where judgment already has entered, there is no basis on which to conclude that the ordinary appellate process is inadequate to obtain review of the petitioner's claim.


author: MASSING, J.

text:
    Edwin PARRIS & others v. SHERIFF OF SUFFOLK COUNTY.
    No. 17-P-189
    Appeals Court of Massachusetts, Suffolk..
    Argued January 16, 2018 Decided September 5, 2018
    Dennis M. Coyne, Southborough, for the plaintiffs.
    Janna Hansen, Assistant Attorney General, for the defendant.
    Present: Green, C.J., Trainor, Vuono, Massing, & Singh, JJ.

      Shane Bouyer, Augusta Akukwe, Christopher Popov, and Jail Officers and Employees Association of Suffolk County. The four lead plaintiffs seek to represent a class of 194 similarly situated individuals.

      This case was initially heard by a panel comprised of Justices Trainor, Massing, and Singh. After circulation of a majority and dissenting opinions to the other Justices of the Appeals Court, the panel was expanded to include Chief Justice Green and Justice Vuono. See Sciaba Constr. Corp. v. Boston, 35 Mass. App. Ct. 181, 181 n.2, 617 N.E.2d 1023 (1993).

   MASSING, J.

The Wage Act, G. L. c. 149, §§ 148 and 150, generally requires that all public and private employers in the Commonwealth pay their employees' wages no more than seven days after the end of the pay period in which the wages were earned. Employees whose wages are detained longer than the Wage Act permits are entitled, after filing a complaint with the Attorney General, to initiate civil actions for injunctive relief, damages including lost wages, mandatory treble damages, and attorney's fees. The defendant sheriff of Suffolk County (sheriff), as a State employer, is required to make payments in accordance with the Wage Act to "every mechanic, workman and laborer" he employs and to "every person employed in any other capacity by [him] in any penal or charitable institution ... unless such mechanic, workman, laborer or employee requests in writing to be paid in a different manner" (emphasis supplied). G. L. c. 149, § 148, as appearing in St. 1960, c. 416.

In this case we must determine whether a provision in the collective bargaining agreements (CBAs) between the sheriff and the unions representing his employees amounts to a valid "request[ ] in writing" by the employees "to be paid in a different manner." Ibid. In addition, we must determine whether the CBAs in question effectively waived the employees' rights to judicial enforcement of claims of late payment. We conclude that the unions had the authority, through collective bargaining, to exercise the employees' election to request that payment of overtime wages be made under a different schedule than the Wage Act provides, but that the CBAs here were not effective to waive the employees' rights to enforcement in court of the altered Wage Act schedule.

Background. The facts, as presented in the parties' cross motions for summary judgment, are not in dispute. The individual plaintiffs all work or worked for the sheriff at the Nashua Street jail between January, 2010, and July 25, 2015. All of the employees are members of State collective bargaining units. Plaintiff Jail Officers and Employees Association of Suffolk County (union) is the exclusive bargaining representative for most of the employees; two other unions represent the remaining employees. The sheriff recognized these unions as the exclusive representatives of their members for the purpose of collective bargaining. See G. L. c. 150E, § 4.

The sheriff and the unions entered into a series of CBAs relevant to this litigation. These CBAs contained an identical provision (art. X, § 7) reflecting the parties' agreement concerning the timing of overtime payments: "Employees shall be paid for overtime service within twenty-five (25) working days following the month in which such service is performed." At all relevant times the sheriff paid the employees their overtime wages under the CBA twenty-five-day provision rather than under the Wage Act's seven-day period. In some instances the sheriff detained overtime wages beyond the twenty-five-day time frame permitted in the CBAs.

After obtaining authorization from the Attorney General, the lead plaintiffs commenced this action on behalf of themselves and other similarly situated employees. They alleged that the sheriff violated the Wage Act by, among other actions, failing to pay overtime wages within seven days. Acting on cross motions for summary judgment, a judge of the Superior Court held that the employees, "having approved a written request in the CBA that they be paid in a different manner, have waived their right to enforce the schedule set out in the Wage Act." On the plaintiffs' timely motion for reconsideration, the judge further concluded that to the extent the sheriff exceeded the twenty-five-day time limit, the plaintiffs were required to exhaust the CBA's grievance procedures. Judgment entered for the sheriff, the plaintiff's complaint was dismissed, and this appeal ensued.

Discussion. 1. Request to deviate from Wage Act payment schedule. "The purpose of G. L. c. 149, § 148, is to prevent the evil of the 'unreasonable detention of wages [by employers].' " Newton v. Commissioner of the Dept. of Youth Servs., 62 Mass. App. Ct. 343, 345, 816 N.E.2d 993 (2004), quoting from Boston Police Patrolmen's Assoc., Inc. v. Boston, 435 Mass. 718, 720, 761 N.E.2d 479 (2002). See American Mut. Liab. Ins. Co. v. Commissioner of Labor & Indus., 340 Mass. 144, 147, 163 N.E.2d 19 (1959) (Wage Act was adopted "primarily to prevent unreasonable detention of wages"). "We have consistently held that the legislative purpose behind the Wage Act ... is to provide strong statutory protection for employees and their right to wages." Crocker v. Townsend Oil Co., 464 Mass. 1, 13, 979 N.E.2d 1077 (2012). Accordingly, waiver of Wage Act protections is strongly disfavored. See, e.g., Melia v. Zenhire, Inc., 462 Mass. 164, 170, 967 N.E.2d 580 (2012), quoting from Camara v. Attorney Gen., 458 Mass. 756, 760-761, 941 N.E.2d 1118 (2011) ("An agreement to circumvent the Wage Act is illegal even when 'the arrangement is voluntary and assented to' ").

The fundamental public policy against forfeiture of Wage Act protections is rooted in the "special contract" provision of the statute, originally inserted in 1896, Melia, supra, which states, "No person shall by a special contract with an employee or by any other means exempt himself from this section or from [ G. L. c. 149, § 150 ]." G. L. c. 149, § 148, as appearing in St. 1956, c. 259. Public employees, however, have long been explicitly granted the ability to make written requests to alter the manner of their payments. The ability to make this election predates the special contract provision. Indeed, as early at 1887, city employees were entitled to payment of wages every seven days, "unless such employee shall request in writing to be paid in some different manner." St. 1887, c. 399, § 1.

While the Wage Act has consistently given the individual public employee the ability to make a written request for a different manner of payment, the statute does not expressly permit an employee's collective bargaining representative to make such a written request on the employee's behalf. The first question we must decide, therefore, is whether a collective bargaining representative has the authority to exercise the individual employees' election through collective bargaining.

An interpretation of the Wage Act requiring individual employees personally to make this election would create a conflict with the public employee labor relations law, G. L. c. 150E. Under c. 150E, the relevant unions are the employees' "exclusive representative of all the employees ... for the purpose of collective bargaining," G. L. c. 150E, § 4, inserted by St. 1973, c. 1078, § 2, and are empowered to act on the employees' behalf "with respect to wages, hours, standards or productivity and performance, and any other terms and conditions of employment," G. L. c. 150E, § 6, inserted by St. 1973, c. 1078, § 2. The employees' status as union members limits the sheriff's ability to deal directly with them. Rather, the unions possess the right to speak exclusively for all the employees on mandatory subjects of collective bargaining. See Service Employees Intl. Union, AFL-CIO, Local 509 v. Labor Relations Commn., 431 Mass. 710, 714, 729 N.E.2d 1100 (2000). Direct communications between the sheriff and the employees regarding changes to the statutory payment schedule would have been a prohibited practice. See id. at 715, 729 N.E.2d 1100 ; Service Employees Intl. Union, Local 509 v. Department of Mental Health, 469 Mass. 323, 333 & n.10, 14 N.E.3d 216 (2014).

Public employee collective bargaining was first authorized by statute long after the Wage Act was in place. See Somerville v. Commonwealth Employment Relations Bd., 470 Mass. 563, 568-569, 24 N.E.3d 552 (2015) (discussing Commonwealth's recognition in 1958 of right of public employees to organize and to bargain collectively). "We assume that the Legislature was aware of existing statutes when enacting subsequent ones." Green v. Wyman-Gordon Co., 422 Mass. 551, 554, 664 N.E.2d 808 (1996). See Everett v. Revere, 344 Mass. 585, 589, 183 N.E.2d 716 (1962), quoting from Walsh v. Commissioners of Civil Serv., 300 Mass. 244, 246, 15 N.E.2d 218 (1938) ("A statute is to be interpreted with reference to the preëxisting law.... If reasonably practicable, it is to be explained in conjunction with other statutes to the end that there may be an harmonious and consistent body of law"); Fall River v. AFSCME Council 93, Local 3177, AFL-CIO, 61 Mass. App. Ct. 404, 406, 810 N.E.2d 1259 (2004), quoting from Dedham v. Labor Relations Commn., 365 Mass. 392, 402, 312 N.E.2d 548 (1974) ("When possible, we attempt to read [statutes] and the collective bargaining law, as well as the agreements that flow from the collective bargaining law, as a 'harmonious whole' ").

To harmonize the Wage Act with c. 150E, we hold that the unions may act on behalf of their members to exercise the employees' election under the Wage Act to alter the timing of the overtime payments. We emphasize that the provision of the CBAs at issue here did not represent a waiver of individual rights under the Wage Act. Rather, the provision represents a negotiated version of a different time period for payment, elected by the employees as permitted by the terms of the Wage Act, through their collective bargaining representatives. Accordingly, to the extent that the sheriff paid the employees' overtime wages within twenty-five days of the end of the month in which they were earned, the sheriff was in compliance with what the unions, on behalf of the employees, agreed was timely payment under the Wage Act.

2. Judicial remedies. Having held that the parties validly negotiated for the employees to be paid according to a different schedule than the Wage Act provides, we must determine whether the CBAs preclude the employees from judicial enforcement of their right to prompt payment under the negotiated Wage Act schedule. We conclude that they do not. "[T]he prompt payment of wages statute creates an independent statutory right that can be enforced judicially even when a collective bargaining agreement addresses the subject matter of compensation." Newton, 62 Mass. App. Ct. at 347, 816 N.E.2d 993.

Unlike the exercise of the Wage Act election to be paid in a different manner, we deal here with the purported waiver of an individual statutory right. "Although a union has the power to waive statutory rights related to collective activity, rights ... which are of a personal, and not merely economic, nature are beyond the union's ability to bargain away." Blanchette v. School Comm. of Westwood, 427 Mass. 176, 183, 692 N.E.2d 21 (1998) (protections of antidiscrimination law, G. L. c. 151B, not waivable through collective bargaining). The Wage Act rights at issue here fall into this category: "The statutory right to the timely payment of wages does not involve the collective rights of employees but, rather, is designed to insure that each individual is paid promptly the wages due him or her." Newton, supra at 346, 816 N.E.2d 993.

No Massachusetts appellate decision has ever upheld the waiver of individual statutory rights through a CBA. In Newton, even though the CBA included provisions concerning overtime, call-back, stand-by pay, and a grievance procedure "relating to the interpretation and application of the terms of the agreement," we held that the agreement did not waive the plaintiffs' "right to the timely payment of wages" under the Wage Act. Ibid."While an individual may waive the requirements of the statute by a writing, the record does not disclose that the plaintiffs did so. Nor does their collective bargaining agreement include any reference to G. L. c. 149, § 148, or to the time when wages must be paid." Id. at 345, 816 N.E.2d 993.

The United States Supreme Court, in Barrentine v. Arkansas-Best Freight Sys., 450 U.S. 728, 745, 101 S.Ct. 1437, 67 L.Ed.2d 641 (1981), similarly held that the grievance procedures of a CBA could not waive an individual employee's right to bring an action in Federal court alleging a violation of the minimum wage provision of the Fair Labor Standards Act (FLSA). The Court stated that employees' rights under the FLSA "devolve on petitioners as individual workers, not as members of a collective organization. They are not waivable." Ibid.

More recently, in a sharply divided decision, the United States Supreme Court held for the first time that Federal law permits enforcement of a provision in a CBA that compels arbitration of individual employees' statutory age discrimination claims, but only by way of "a provision ... that clearly and unmistakably requires union members to arbitrate claims arising under the Age Discrimination in Employment Act of 1967." 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 251, 129 S.Ct. 1456, 173 L.Ed.2d 398 (2009). The Court distinguished Barrentine on the ground that "the arbitration provision under review in Barrentine did not expressly reference the statutory claim at issue." Id. at 263, 129 S.Ct. 1456.

We need not determine whether Massachusetts law permits a union to waive represented employees' rights and remedies under the Wage Act because we conclude that the CBAs before us do not include such a waiver. The Commonwealth's fundamental public policy "to provide strong statutory protection for employees and their right to wages," Crocker, 464 Mass. at 13, 979 N.E.2d 1077, would require, at the minimum, a clear and unmistakable waiver. The CBAs here do not meet this high standard.

The case of Warfield v. Beth Israel Deaconess Med. Center, Inc., 454 Mass. 390, 910 N.E.2d 317 (2009), like the case before us, considered the specificity necessary to waive judicial enforcement of an important public policy protection. The question in Warfield was whether a clause in an individual's employment agreement providing for arbitration of "[a]ny claim, controversy or dispute arising out of or in connection with" the contract applied to an employment discrimination claim under G. L. c. 151B. Warfield, supra at 392, 910 N.E.2d 317. Both the Federal Arbitration Act (FAA) and the Massachusetts Arbitration Act explicitly permit written agreements to submit to arbitration any controversy between the parties. Id. at 394-395, 910 N.E.2d 317. Moreover, Federal law allows for arbitration of Federal employment discrimination disputes, and the court assumed without deciding that Massachusetts law likewise would permit arbitration of employment discrimination claims under G. L. c. 151B.

Warfield, supra at 395, 910 N.E.2d 317. In addition, both Federal and State law and policy favor arbitration, creating a rebuttable presumption of arbitrability. Id. at 396, 910 N.E.2d 317.

Nonetheless, relying on the Commonwealth's "overriding governmental policy proscribing various types of discrimination, set forth in G. L. c. 151B," Warfield, supra at 398, 910 N.E.2d 317, quoting from Massachusetts Bay Transp. Authy. v. Boston Carmen's Union, Local 589, 454 Mass. 19, 26, 29, 907 N.E.2d 200 (2009), the court held that "an employment contract containing an agreement by the employee to limit or waive any of the rights or remedies conferred by G. L. c. 151B is enforceable only if such an agreement is stated in clear and unmistakable terms." Warfield, supra.

Similarly in Blanchette, 427 Mass. at 183, 692 N.E.2d 21, after determining that the plaintiff's individual judicial remedies could not be waived by her union's collective bargaining agreement, the court considered whether she had waived those remedies by her own actions. The court assumed that the plaintiff "may have been able explicitly and voluntarily to waive her right to pursue her statutory civil rights claim in a judicial forum," but held that "there is no evidence that [she] made such an explicit and voluntary waiver." Id. at 184, 692 N.E.2d 21.

Finally, in Crocker, 464 Mass. at 12, 979 N.E.2d 1077, the court considered whether a general release agreement made in settlement of an employment dispute could insulate an employer from Wage Act liability. Resolving the tension between the Wage Age, which generally prohibits any agreement to circumvent its protections, and "the contravening public policy favoring the enforceability of general releases," id. at 14, 979 N.E.2d 1077, the Crocker court created a limited exception to the "special contract" prohibition. Melia, 462 Mass. at 170, 967 N.E.2d 580 (citation omitted). To protect against the possibility "that the strong protections afforded by the Wage Act could be unknowingly frittered away under the cover of a general release in an employer-employee termination agreement," the court held that such an agreement "will be enforceable as to the statutorily provided rights and remedies conferred by the Wage Act only if [it] is stated in clear and unmistakable terms." Crocker, supra."In other words, the release must be plainly worded and understandable to the average individual, and it must specifically refer to the rights and claims under the Wage Act that the employee is waiving." Ibid.

Thus, even if Massachusetts were to allow a provision of a CBA to waive represented employees' individual rights and remedies under the Wage Act, the fundamental public policy to prevent employees' unwitting waiver of their individual rights would require "establishing a relatively narrow channel through which waiver of Wage Act claims can be accomplished," id. at 15, 979 N.E.2d 1077 -- that is, a clear and unmistakable statement. The CBAs here do not meet this high standard.

With respect to the grievance procedure, the CBAs state in art. VII, "Only matters involving the question whether the [sheriff] is complying with the written provisions of this Agreement shall constitute grievances under this Article." This provision does not even mention, let alone clearly and unmistakably state, that the employees have waived their rights to judicial enforcement of Wage Act violations. See Wright v. Universal Maritime Serv. Corp., 525 U.S. 70, 80, 119 S.Ct. 391, 142 L.Ed.2d 361 (1998) (general arbitration clause, providing for arbitration of "[m]atters under dispute," effective as to contractual, but not statutory, claims; "a union negotiated waiver of employees' statutory right to a judicial forum" must be "clear and unmistakable").

Even though the unions agreed to an extended period for the timely payment of wages under the Wage Act, the unions did not waive the employees' Wage Act remedies with respect to payments withheld longer than the negotiated standard permits. The twenty-five-day payment window is both a provision of the CBAs and a requirement that the sheriff must meet to comply with the Wage Act. "[I]t is ... well-established that there are certain personal, statutory rights that can be enforced judicially even though they are incorporated into a collective bargaining agreement. The mere fact that those rights may be created both by contract and by statute and may be violated by the same factual occurrence does not vitiate their distinct and separate nature." Newton, 62 Mass. App. Ct. at 346, 816 N.E.2d 993 (citations omitted). "[W]e agree with the plaintiffs that the right to timely payment of wages is a distinct, independent statutory right that can be enforced judicially even though the subject matter of overtime ... is incorporated in the plaintiffs' collective agreement." Ibid.

The cases of Machado v. System4 LLC, 471 Mass. 204, 28 N.E.3d 401 (2015), and Dixon v. Perry & Slesnick, P.C., 75 Mass. App. Ct. 271, 914 N.E.2d 97 (2009), two decisions that enforced individually negotiated agreements to submit Wage Act claims to arbitration without requiring explicit reference to the Wage Act in the arbitration clause, are not to the contrary. Neither of those cases concerned a purported waiver of individual rights in a CBA, a distinction explicitly relied upon in Dixon. See Dixon, supra at 277 & n.8, 914 N.E.2d 97.

Moreover, both cases reasoned that the arbitration provisions at issue did not implicate the employees' substantive rights under the Wage Act or "exempt" the employer from the Wage Act's operation, "but solely dictate[d] the forum in which the plaintiffs' right to recovery will be determined." Machado, supra at 217-218, 28 N.E.3d 401. See Dixon, supra at 275 & n.5, 914 N.E.2d 97. Here, however, not all of the statutory remedies available to the employees in court would be available to them under the CBAs. The grievance procedure under the CBAs is limited "[o]nly [to] matters involving the question whether the [sheriff] is complying with the written provisions of [the CBA]." The CBAs do not provide contractual remedies of treble damages or attorney's fees, which are purely Wage Act terms. Indeed, the sheriff asserts in his brief that "any alleged violation with respect to the timing of overtime pay would be a violation of that CBA provision, and not the Wage Act," and that the plaintiffs "are not entitled to damages, treble or otherwise, since there is no Wage Act violation." Even if the CBAs were considered ambiguous as to the availability of Wage Act remedies, that ambiguity alone would demonstrate why an express reference to Wage Act rights is essential. The CBAs here do not include sufficiently clear and unmistakable language to waive the employees' individual judicial remedies contained in G. L. c. 149, § 150.

Conclusion. The plaintiff employees' election, through the CBAs and authorized by the Wage Act, that payment of overtime wages would be considered timely if made "within twenty-five (25) working days following the month in which such service is performed" is effective to supplant the Wage Act's seven-day requirement. The plaintiffs did not waive their Wage Act remedies for payment of wages beyond the twenty-five-day period. Accordingly, we vacate the judgment dismissing the plaintiffs' complaint. The plaintiffs may proceed to enforce their claims for late payment in the Superior Court under G. L. c. 149, § 150.

So ordered.

I agree with the majority that the provision of the collective bargaining agreement (CBA) setting forth a twenty-five-day time limit for the payment of overtime wages, rather than a seven-day time limit as set forth in the Wage Act, is enforceable as a "request[ ] in writing to be paid in a different manner," exercised by the unions on behalf of the employees. G. L. c. 149, § 148, as appearing in St. 1960, c. 416. It follows therefore that any dispute arising out of this provision of the CBA must first be pursued within the grievance procedure provided for in the CBA. See Azzi v. Western Elec. Co., 19 Mass. App. Ct. 406, 408, 474 N.E.2d 1166 (1985) (before bringing action against employer for violation of CBA, employee required to exhaust grievance procedure), citing Vaca v. Sipes, 386 U.S. 171, 184, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). To the extent that the majority allows employees to elect a judicial remedy in the first instance, bypassing the contractual remedies provided for in the CBA, I dissent.

The CBA provides that "matters involving the question whether the [sheriff of Suffolk County (sheriff) ] is complying with the written provisions of this Agreement shall constitute grievances" and sets out a detailed grievance procedure to be followed, ultimately concluding in binding arbitration. The employees' claim to have not been paid overtime wages within twenty-five days as required by the CBA unquestionably falls within the definition of a grievance. The employees were therefore required to pursue and to exhaust their contractual remedies through the grievance procedure; election of a judicial remedy in the first instance was not permissible. See Malden Police Patrolman's Assn. v. Malden, 92 Mass. App. Ct. 53, 59, 82 N.E.3d 1055 (2017) ("Employees may not simply disregard the grievance procedures set out in a collective labor contract and go direct[ly] to court for redress against the employer"), quoting from Balsavich v. Local Union 170 of the Intl. Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of America, 371 Mass. 283, 286, 356 N.E.2d 1217 (1976).

Relying primarily on cases involving claims of employment discrimination, the majority contends that the CBA must state in "clear and unmistakable" terms that employees waive the right to bring a Wage Act claim in court for claims arising out of the CBA provision requiring overtime wages to be paid within twenty-five days. Ante at ----, 110 N.E.3d at ----. Yet, there is a presumption of arbitrability in contracts containing arbitration clauses. See Drywall Sys., Inc. v. ZVI Constr. Co., 435 Mass. 664, 666, 761 N.E.2d 482 (2002) (arbitration of particular claim "should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage"). Thus, there is no need for the CBA to "list every possible statutory claim that might arise." Warfield v. Beth Israel Deaconess Med. Center, Inc., 454 Mass. 390, 400 n.16, 910 N.E.2d 317 (2009).

In the employment discrimination cases, the courts were concerned that individual statutory rights to be free from discrimination may be unwittingly waived through general arbitration clauses in agreements making no mention of discrimination. See id. at 402, 910 N.E.2d 317 (statutory gender discrimination claim could be pursued in court, despite arbitration clause in employment contract, where there was "no contractual term dealing with discrimination"). That concern is not present here where the claim arises out of an explicit term of the CBA concerning the time period within which overtime wages must be paid.

Additionally, the rationale for not applying the presumption of arbitrability in employment discrimination cases has no applicability here. See Wright v. Universal Maritime Serv. Corp., 525 U.S. 70, 78-79, 119 S.Ct. 391, 142 L.Ed.2d 361 (1998) (noting that presumption of arbitrability is rooted in rationale that arbitrators are in better position than courts to interpret terms of CBAs, court explained that presumption does not have force in employment discrimination context where arbitrator would be called upon to interpret discrimination statutes). The claim in this case does not require arbitrators to interpret the Wage Act but, rather, to interpret the CBA as negotiated by the parties.

Moreover, the clear and unmistakable standard has never been required to permit Wage Act claims to be submitted to arbitration. To the contrary, in Machado v. System4 LLC, 471 Mass. 204, 216-217, 28 N.E.3d 401 (2015), the court considered a broad arbitration clause that required any claim arising out of the parties' franchise relationship to be submitted to arbitration. Relying on Crocker v. Townsend Oil Co., 464 Mass. 1, 979 N.E.2d 1077 (2012), as the majority does here, the plaintiffs argued that their Wage Act claims were not arbitrable because the arbitration clause made no mention of the Wage Act. Machado, supra. Rejecting this argument, the court explained that an arbitration agreement "does not permit an employer to thwart or exempt itself from Wage Act obligations, but solely dictates the forum in which the plaintiffs' right to recovery will be determined." Id. at 217-218, 28 N.E.3d 401. Thus, despite the absence of clear and unmistakable language indicating waiver of a judicial forum for Wage Act claims, the plaintiffs were required to submit their claims to arbitration as provided in the CBA. See Dixon v. Perry & Slesnick, P.C., 75 Mass. App. Ct. 271, 275-276, 914 N.E.2d 97 (2009) (Wage Act claim required to be submitted to arbitration pursuant to general arbitration clause with no reference to Wage Act).

Given that the provision of the CBA setting forth a twenty-five-day time limit for the payment of overtime wages is enforceable, any claim that the sheriff violated this provision must be resolved, in the first instance, through the mechanism provided for in the CBA. I would affirm the judgment in its entirety.

I, like my dissenting colleague, also agree with the majority that the twenty-five-day time limit for the payment of overtime wages is enforceable as a "request[ ] in writing to be paid in a different manner" than the seven-day payment requirement contained in the Wage Act. See G. L. c. 149, § 148, as appearing in St. 1960, c. 416. However, I do not believe it was necessary to "harmonize the Wage Act with c. 150E" as the majority holds. Ante at ----, 110 N.E.3d at ----. Collective bargaining agreements (CBAs) are not the kind of contracts from which the Wage Act was attempting to protect workers. ,

See Rooney v. Yarmouth, 410 Mass. 485, 492-494, 573 N.E.2d 969 (1991) ; Crocker v. Townsend Oil Co., 464 Mass. 1, 13-15, 979 N.E.2d 1077 (2012).

I dissent, however, from the majority holding that employees subject to the CBA may elect to enforce its provision for the payment of overtime wages by employing the judicial remedy contained in the Wage Act. Ante at ----, 110 N.E.3d at ----. The appropriate forum for the remedy is arbitration, as stated in the CBA.

In 1974, the town of Yarmouth (town) voted to accept the provisions of G. L. c. 41, § 108L (the Quinn Bill). Rooney, supra at 487, 573 N.E.2d 969. Sometime after the town's acceptance, the town and the union representing police officers adopted § 108L as a provision of their CBA, including "[a]mendments passed by the State legislature, now and in the future." Rooney, supra at 487 n.2, 573 N.E.2d 969. The Rooney court determined that the parties intended to make § 108L part of, and subject to, the CBA. Id. at 491, 573 N.E.2d 969. When a dispute arose concerning the payment of certain salary increases, an employee police officer claimed that he was not required to arbitrate the dispute because G. L. c. 41, § 108L (i.e., statutory rights) and constitutional rights regarding property rights through 42 U.S.C. § 1983 were involved. Rooney, supra at 490, 573 N.E.2d 969. The employee police officer insisted that he was entitled to a judicial remedy and that even if the dispute were arbitrable under the CBA, arbitration would not be an exclusive remedy. Ibid. His failure to pursue arbitration would thus not justify a dismissal of the action. Ibid. The Rooney court held:

"[ Section] 108L does not vest in [the employee] a personal, substantive, nonwaivable statutory guarantee that he is free to enforce judicially notwithstanding the incorporation of § 108L into the [CBA].... [The employee] plainly does not have in § 108L an independent statutory right that is unencompassed by the [CBA].... We conclude that, by agreeing to the incorporation of § 108L into the [CBA], the union effectively waived any right [the employee] may have had to judicial relief based on § 108L. [The employee's] exclusive remedy ... was through the grievance process provided in the agreement."

Id. at 492, 494, 573 N.E.2d 969. Here, as the majority would agree, there was no attempted waiver by the CBA of the statutory right to timely payment of overtime wages. The CBA merely, as specifically allowed by the Wage Act, determined what the period of time would be for the prompt payment of overtime wages for the employees covered by the CBA.

The cases cited by the majority to support the proposition that this case represents a situation of a nonwaivable right are inapposite. See Blanchette v. School Comm. of Westwood, 427 Mass. 176, 183, 692 N.E.2d 21 (1998) (protections of G. L. c. 151B [anti-discrimination law] cannot be waived through CBA); Warfield v. Beth Israel Deaconess Med. Center, Inc., 454 Mass. 390, 398, 910 N.E.2d 317 (2009) (applied arbitration requirement to employment discrimination claim under G. L. c. 151B; "an agreement by the employee to limit or waive any of the rights or remedies conferred by G. L. c. 151B is enforceable if such an agreement is stated in clear and unmistakable terms"); Crocker, 464 Mass. at 14, 979 N.E.2d 1077 (arbitration, pursuant to agreement, "will be enforceable as to the statutorily provided rights and remedies conferred by the Wage Act only if such an agreement is stated in clear and unmistakable terms"); Barrentine v. Arkansas-Best Freight Sys., 450 U.S. 728, 737-744, 101 S.Ct. 1437, 67 L.Ed.2d 641 (1981) (right to minimum wage and overtime pay cannot be waived through a CBA); Wright v. Universal Maritime Serv. Corp., 525 U.S. 70, 119 S.Ct. 391, 142 L.Ed.2d 361 (1998) ("union negotiated waiver of employees' statutory right to a judicial forum" in general arbitration clause must be "clear and unmistakable").

And, finally, the majority misunderstands the holding in Newton v. Commissioner of the Dept. of Youth Servs., 62 Mass. App. Ct. 343, 816 N.E.2d 993 (2004). In Newton, employees of a Department of Youth Services (DYS) forestry camp brought an action against DYS under the Wage Act for failure to pay overtime and for other extra pay. Id. at 344, 816 N.E.2d 993. Unlike our case, while the DYS employees were subject to a CBA and its arbitration clause, the CBA made no mention of the Wage Act or of any of its specific requirements. Id. at 345, 816 N.E.2d 993. The court held that, "[w]hile an individual may waive the requirements of the statute by a writing, the record does not disclose that the plaintiffs did so. Nor does their collective bargaining agreement include any reference to G. L. c. 149, § 148, or to the time when wages must be paid" (emphasis supplied). Newton, supra.

The Wage Act allowed the inclusion of the provision of the CBA at issue here, and the majority agrees with this. Ante at ----, 110 N.E.3d at ----. The twenty-five-day payment requirement contained in the CBA exists only in the CBA and not in the Wage Act. The CBA does not and cannot amend the Wage Act. The twenty-five-day payment requirement created by, and existing only in, the CBA can be enforced only within the forum (i.e., arbitration) provided in the CBA.

      The plaintiffs became State employees when the Legislature transferred the sheriff's department to the Commonwealth on January 1, 2010. See St. 2009, c. 61, §§ 3, 4, 26; Sheriff of Suffolk County v. Jail Officers & Employees of Suffolk County, 465 Mass. 584, 595, 990 N.E.2d 1042 (2013). As State employees working at a penal institution, the employees -- irrespective of their various job classifications -- were covered by the Wage Act. Contrast Newton v. Commissioner of the Dept. of Youth Servs., 62 Mass. App. Ct. 343, 348-349, 816 N.E.2d 993 (2004).

      The record includes copies of the CBAs between the sheriff and the three unions for the periods July 1, 2009, to June 30, 3012; July 1, 2012, to June 30, 2014; and July 1, 2014, to June 30, 2017. In the agreements for 2009 through 2012, the employer was Suffolk County, "acting by and through the Sheriff of Suffolk County, hereinafter called 'the Municipal Employer.' " In the later CBAs, the employer was changed to the Commonwealth, reflecting the transfer of the sheriff's department to the Commonwealth. Nonetheless, the CBAs continued to refer to the sheriff as the "Municipal Employer."

      The plaintiffs allege that overtime payments were made "from one to eight months or more after the regular bi-weekly pay period ended." The sheriff admits "that there were a de minimus number of payments, representing a mere fraction of all of the payments in this case, that eclipsed the 25 day payment term."

      Under G. L. c. 149, § 150, the Attorney General may institute civil or criminal actions to enforce § 148. In addition, individual employees aggrieved by Wage Act violations may file civil suits on their own behalf ninety days after filing a complaint with the Attorney General or sooner if the Attorney General gives her written assent.

      The plaintiffs have voluntarily dismissed all claims except their claim for untimely payment of overtime wages.

      Because claims under the Wage Act, like claims under the antidiscrimination law, concern individual rather than collective rights and are protected by a strong, statutorily expressed public policy, the case law concerning waiver of antidiscrimination claims is uniquely applicable here. These statutory rights are "unlike ... the right to receive a financial reward beyond his base salary for advancing his education and job training," at issue in Rooney v. Yarmouth, 410 Mass. 485, 492, 573 N.E.2d 969 (1991) (contrasting Rooney's rights under Quinn Bill with "right to minimum wage and overtime pay" under the Fair Labor Standards Act and "right to equal employment opportunities").

      In Warfield v. Beth Israel Deaconess Med. Center, Inc., 454 Mass. 390, 401 n.17, 910 N.E.2d 317 (2009), the court noted the sharp disagreement among the justices in 14 Penn Plaza LLC regarding whether "a collective bargaining agreement could waive an individual's right to court access for individually based statutory claims."

      To the extent our dissenting colleagues assert that the presumption of arbitrability overrides the need for a clear and unmistakable waiver, the Supreme Judicial Court considered that issue at length, see Warfield, supra at 397-401, 910 N.E.2d 317, and concluded that "[t]he interpretive rule we state here is not inconsistent with the presumption of arbitrability embedded in the FAA." Id. at 399, 910 N.E.2d 317. Post at ----, 110 N.E.3d at ----. The court emphasized that the case concerned "an 'overriding' statutorily expressed, public policy," calling for "distinct treatment," Warfield, supra at 400 n.16, 910 N.E.2d 317 (citation omitted) -- as does the case before us. It was in this context that the court further observed that an employment contract need not "specifically list every possible statutory claim that might arise." Ibid.

      Our dissenting colleagues erroneously contend that the twenty-five-day provision is solely a creature of the CBAs. Post at ----, 110 N.E.3d at ----. To the contrary, it represents a "request[ ] in writing," made under the provisions of the Wage Act, "to be paid in a different manner." G. L. c. 149, § 148, as appearing in St. 1960, c. 416.

      In Dixon, supra at 277 n.8, 914 N.E.2d 97, we rejected the employee's argument that she did not waive her right to litigate her claim because her waiver was not made "explicitly and voluntarily," citing Blanchette, 427 Mass. at 184, 692 N.E.2d 21. In Machado, supra at 216-217, 28 N.E.3d 401, the court declined to extend the rule in Crocker"and hold that the arbitration clause does not apply to [the plaintiffs'] Wage Act claims given that it makes no explicit mention of such claims."

      Justice Singh, in her dissent, asserts that "[b]y agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute," quoting from Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 473 U.S. 614, 628, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985). Post at ----, 110 N.E.3d at ----. While this statement may be true, it presupposes both an agreement to arbitrate and an arbitration provision that incorporates the full range of statutory remedies. See Barrentine, 450 U.S. at 745, 101 S.Ct. 1437 ("Under the FLSA, courts can award actual and liquidated damages, reasonable attorney's fees, and costs. 29 U.S.C. § 216 [b]. An arbitrator, by contrast, can award only that compensation authorized by the wage provision of the collective-bargaining agreement").

      See Blanchette v. School Comm. of Westwood, 427 Mass. 176, 692 N.E.2d 21 (1998) (retaliation based on sexual harassment claim); Massachusetts Bay Transp. Authy. v. Boston Carmen's Union, Local 589, 454 Mass. 19, 907 N.E.2d 200 (2009) (handicap discrimination); Warfield v. Beth Israel Deaconess Med. Center, Inc., 454 Mass. 390, 910 N.E.2d 317 (2009) (gender discrimination); Wright v. Universal Maritime Serv. Corp., 525 U.S. 70, 119 S.Ct. 391, 142 L.Ed.2d 361 (1998) (disability discrimination); 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 129 S.Ct. 1456, 173 L.Ed.2d 398 (2009) (age discrimination).

      Although the arbitration clause in Machado was contained within individual franchise agreements, as opposed to a CBA, "[n]othing in the law suggests a distinction between the status of arbitration agreements signed by an individual employee and those agreed to by a union representative." 14 Penn Plaza LLC v. Pyett, supra at 258, 129 S.Ct. 1456.

      "By agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum. It trades the procedures and opportunity for review of the courtroom for the simplicity, informality, and expedition of arbitration." Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985).

      "During the period preceding World War I, in which [the Illinois version of the Wage Act] was originally enacted, many State legislatures outlawed and forbade certain and various kinds of individual contracts between the employer and individual employees in the belief that 'employers had an unfair economic advantage over individual wage earners because of their superior economic power, including the present control over the means of livelihood in an industrial system and took advantage of such wage earners' absolute necessity to make a living on any terms available." Pullman Co. v. Cummins, 10 Ill. 2d 454, 467-468, 140 N.E.2d 713 (1957) (citation omitted).

      "The national policy favoring collective bargaining and industrial self-government was first expressed in the National Labor Relations Act of 1935, 29 U.S.C. § 151 et seq. (the Wagner Act). It received further expression and definition in the Labor Management Relations Act, 1947, 29 U.S.C. § 141 et seq. (the Taft-Hartley Act). Predicated on the assumption that individual workers have little, if any, bargaining power, and that 'by pooling their economic strength and acting through a labor organization freely chosen by the majority, the employees of an appropriate unit have the most effective means of bargaining for improvements in wages, hours, and working conditions,' ... these statutes reflect Congress' determination that to improve the economic well-being of workers, and thus to promote industrial peace, the interests of some employees in a bargaining unit may have to be subordinated to the collective interests of a majority of their co-workers.... The rights established through this system of majority rule are thus 'protected not for their own sake but as an instrument of the national labor policy of minimizing industrial strife "by encouraging the practice and procedure of collective bargaining." 29 U.S.C. § 151.' " Barrentine v. Arkansas-Best Freight Sys., 450 U.S. 728, 735, 101 S.Ct. 1437, 67 L.Ed.2d 641 (1981).

      Section 108L established a career incentive pay program for police officers in the form of salary increases for officers who further their education. Rooney, supra at 487, 573 N.E.2d 969. Municipalities that accepted the provisions of § 108L would be entitled to reimbursement from the Commonwealth of one-half of the costs of the incentive benefits. Ibid.

      The CBA also incorporated a binding arbitration clause for all disputes arising out of the agreement. Rooney, supra at 486, 573 N.E.2d 969.

      Significantly, both for the Rooney decision and our case here, a nonwaivable statutory right would include, for example, the right to the statutory minimum wage, the right to overtime pay (regardless of the timing of payment), or the right to equal employment opportunities. See, e.g., School Comm. of Brockton v. Massachusetts Commn. Against Discrimination, 377 Mass. 392, 399, 386 N.E.2d 1240 (1979) ; Alexander v. Gardner Denver Co., 415 U.S. 36, 51, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974) ; Barrentine v. Arkansas-Best Freight Sys., supra at 739-746, 101 S.Ct. 1437. Also, the union in Rooney incorporated the entire statute into the CBA, including future amendments. Here, the union created a new payment period that existed only within the CBA.


author: AGNES, J.

text:
    COMMONWEALTH v. Henry JOHNSON.
    No. 16-P-429
    Appeals Court of Massachusetts, Bristol..
    Argued April 10, 2018 Decided September 14, 2018
    Xiomara M. Hernandez for the defendant.
    Tara L. Johnston, Assistant District Attorney, for the Commonwealth.
    Present: Agnes, Massing, & Neyman, JJ.
   AGNES, J.

In Commonwealth v. Sayyid, 86 Mass. App. Ct. 479, 489, 17 N.E.3d 469 (2014), this court held that in order for an admission to a violation of probation and a waiver of the right to a revocation hearing to be valid, the record must demonstrate that, in the totality of the circumstances, the defendant's decision was made knowingly and voluntarily. The question before us is whether the judge was correct in denying the defendant's motion to withdraw his admission to violations of his probation based on his claim that he was misinformed by his attorney about the potential maximum sentence that the judge would impose if the judge revoked his probation. For the reasons that follow, we agree with the judge that the defendant's admission and his waiver of the right to a probation violation hearing were made knowingly and voluntarily. Accordingly, we affirm.

Background. 1. The defendant's guilty pleas. On December 20, 2013, the defendant pleaded guilty to indictments charging as follows: one count of rape of a child, three counts of indecent assault and battery on a child under the age of fourteen, and one count of dissemination of obscene matter to a minor. He was sentenced to concurrent terms of from three years to three years and one day in State prison on two of the counts of indecent assault and battery, and two years of probation on the remaining three counts, including the charge of rape of a child, to be served upon release from State prison. The terms of the defendant's probation required that he wear a global positioning system (GPS) monitoring device, attend and successfully complete sex offender counselling, report to a probation officer, stay away from the victim, register as a sex offender, and have no unsupervised contact with children under the age of sixteen.

Briefly, the facts underlying the charges to which the defendant pleaded guilty are that in 2010, the victim, a child under the age of fourteen, disclosed to her maternal grandmother that on diverse dates when she was between the ages of five and eight the defendant, her mother's then live-in boy friend, sexually assaulted her. Among other things, the victim disclosed that the defendant put his fingers in her vagina and forced her to put his penis in her mouth.

2. Final probation violation hearing. Upon his release from State prison on September 16, 2014, the defendant began his two-year period of probation. Because he wished to reside with his mother in New Bedford, supervision of his probation was transferred from Suffolk County to Bristol County. A notice of violation of probation and an arrest warrant issued on October 9, 2014, because the defendant had failed to report to his probation officer, was not residing at the address he had provided to the probation department and the Sex Offender Registry Board, had failed to attend an outpatient sex offender treatment program, and had removed his GPS monitoring bracelet. Additionally, after the defendant was released from prison, the victim saw him in the same store where she was shopping with her grandmother. The victim informed her grandmother, who in turn telephoned the police. The defendant was brought in on the arrest warrant on October 13, 2014, and appeared before the Superior Court on October 15.

A final probation violation hearing was scheduled for January 5, 2015. On that day, the parties were ready for the hearing. At the request of defense counsel, there was a sidebar conference attended by the defendant's counsel, the prosecutor who had represented the Commonwealth at the defendant's change of plea, a probation officer, and the judge. The defendant was present in the court room, but did not hear the conference. Defense counsel indicated that her client was prepared to accept an additional one year of incarceration to resolve the case, but stated, "I discussed with him a two to three in order to dispose of it being more in line with the allegations ...." The Commonwealth sought an eight- to ten-year sentence. The judge informed the parties that she needed more information, and that before making a decision she wanted an aid in sentencing evaluation. She further stated that the defendant's sentence "could run the gamut from some period of incarceration to reprobating again." The sidebar concluded with defense counsel informing the judge that the defendant was "prepared to stipulate to the alleged facts, concede to sufficient facts to find him in violation of probation."

After the sidebar conference, the judge informed the defendant on the record that he was alleged to have violated the terms and conditions of his probation. She then informed the defendant that he was entitled to have his attorney represent him at an evidentiary hearing to determine whether he was in violation of his probation. The defendant said he understood. He was then asked by the judge whether he wanted to waive his right to an evidentiary hearing and to stipulate to the probation violations. The defendant responded in the affirmative. The defendant then verbally agreed with the facts in support of each alleged probation violation and waived his right to a probation violation hearing. The defendant was not asked to sign a written form acknowledging that he understood the implications of stipulating to a probation violation and waiving his right to a hearing. Nor was the defendant informed that no agreements had been reached about whether the judge would revoke his probation and, if she did, what sentence would be imposed.

3. Dispositional hearing. On February 13, 2015, the dispositional hearing took place. Once again, the judge, defense counsel, the prosecutor, and the probation officer had a recorded sidebar conference. By this time, the judge had received two aid in sentencing reports from Bridgewater State Hospital. Counsel had an opportunity to review the reports. The judge invited counsel to make recommendations as to the disposition that she should make. The prosecutor explained the reasons for her earlier recommendation, but added that she would be satisfied with an alternative recommendation of five years in State prison. Defense counsel indicated that her client would prefer reprobation with different terms and conditions, but in the alternative she would recommend a sentence of from three years to three and one-half years in State prison. The judge took the matter under advisement during the lunch recess.

The case was called again later that same day. The probation officer made a recommendation of from three to five years in State prison. The judge announced her sentence as follows: "[I]n consideration of the violation on the underlying offense, on all three charges I'm going to sentence him to three to six. He's not an appropriate candidate for probation. He should have some parole interaction when he's released." The sentences were to be served concurrently. Neither the defendant nor his counsel raised an objection based on the judge having exceeded the maximum sentence that the defendant later alleged she had assured defense counsel she would not exceed.

4. Hearing on motion to withdraw admission. On June 3, 2016, represented by a new attorney, the defendant filed a motion to withdraw his admission to the probation violations. The factual basis for the motion was the defendant's allegation, set forth in his affidavit, that his prior attorney informed him that during the sidebar conference held on January 5, 2015, the judge stated that if the defendant admitted to the violations, she would not impose a sentence in excess of three years in State prison. By the date of the hearing on January 18, 2017, successor counsel had obtained an affidavit from the defendant's prior counsel. In that affidavit, prior counsel states in pertinent part her recollection that during the sidebar conference held on January 5, 2015, the judge said "she would [not] go over a set number," and "[t]he number was lower than that which was imposed but there were no guarantees made to the defendant." When at the hearing the judge pointed out that prior counsel's affidavit was not supported by the transcript of the sidebar conference, successor counsel agreed, and argued that the defendant did not hear the sidebar conference. Rather, the defendant's misunderstanding resulted from his attorney giving him incorrect information. The prosecutor responded by arguing that even if the defendant was misled about the maximum sentence the judge would impose for the violation of probation, he was not prejudiced because he had no defenses to the alleged probation violations.

Discussion. A defendant's agreement to waive a probation violation hearing by admitting to the alleged violations of probation and waiving the right to a hearing is valid only if it is made knowingly and voluntarily in light of the totality of the circumstances. Sayyid, 86 Mass. App. Ct. at 489, 17 N.E.3d 469. See § 6(B) of the Guidelines for Probation Violation Proceedings in the Superior Court, Mass. Rules of Court, at 1013 (Thomson Reuters 2018) ("The court may accept a probationer's stipulation to a violation of probation as alleged in the Notice of Surrender if the judge finds after colloquy that the probationer is tendering a knowing and voluntary stipulation"). See also Rule 6(g) of the District/Municipal Courts Rules for Probation Violation Proceedings, Mass. Rules of Court, at 648 (Thomson Reuters 2018) ("The court may accept an admission to an alleged probation violation and a waiver of the right to a violation hearing only upon a determination that the admission and waiver have been made knowingly and voluntarily").

There is no requirement that an admission or a stipulation to violations of probation and a waiver of the right to a violation hearing be in writing, but judges are authorized to require it.

The essential factual underpinning of the defendant's motion to withdraw his stipulation is that his attorney at the probation violation hearing misinformed him about the sentence the judge would impose if the defendant admitted to the violations. However, the judge did not credit the defendant's affidavit, and thus there is no basis for his claim that his admission was not knowing and voluntary. See Commonwealth v. Pingaro, 44 Mass. App. Ct. 41, 48, 693 N.E.2d 690 (1997) ("The credibility, weight, and impact of the affidavits in support of [a] motion are entirely within the [motion] judge's discretion").

Moreover, as the judge reasoned, even assuming that defense counsel gave the defendant incorrect advice about what sentence the judge would impose if the defendant admitted to the violations, the defendant cannot satisfy the requirements for establishing an ineffective assistance of counsel claim. To make out such a claim, the defendant first must demonstrate there was a "serious incompetency ... falling measurably below that which might be expected from an ordinary fallible lawyer," Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974), and, second, that counsel's deficient performance likely deprived the defendant of an otherwise available, substantial ground of defense. Id. Here, the defendant's claim of ineffective assistance fails because there is no evidence that he was prejudiced by the waiver of a probation violation hearing. There is nothing in the record or the defendant's brief indicating that he had a defense to the charges that he cut off his GPS bracelet, failed to report to probation, failed to live at the stated address, and failed to participate in sex offender treatment. The defendant also did not explain how he could have expected a different outcome had he been granted a hearing. See, e.g., Commonwealth v. Bowen, 92 Mass. App. Ct. 793, 799, 94 N.E.3d 855 (2018) ("Where the defendant offers no viable defense to the probation violations, he cannot demonstrate that the factual stipulations, even if prompted by reliance on allegedly unreasonable assurances of a sentence capped at from five to six years in State prison, likely deprived him of an otherwise available, substantial ground of defense").

We take this occasion to commend the judge for the manner in which she conducted the probation violation and dispositional hearings. The record before us indicates that the two sidebar conferences were on the record. See Murphy v. Boston Herald, Inc., 449 Mass. 42, 57 n.15, 865 N.E.2d 746 (2007). See also Commonwealth v. Fanelli, 412 Mass. 497, 501, 590 N.E.2d 186 (1992). In her discussions with the prosecutor, defense counsel, and the probation officer, the judge was careful not to condition any stipulation by the defendant to the probation violations on any proposed disposition, whether it was the recommendation of the prosecutor or the probation officer. See § 6(B) of the Guidelines for Probation Violation Proceedings in the Superior Court, Mass. Rules of Court, supra at 1013 ("[T]he court shall not be bound by any agreement between the probationer and probation officer or District Attorney regarding the disposition to be imposed"). Furthermore, the judge confined herself to identifying the information she needed to make an informed disposition and to listening to the recommendations made by the parties, the factual basis for the defendant's earlier pleas of guilty, and the general nature of the alleged violations. The record indicates that "the bare fact of the communication to the judge of the sentencing alternatives ... discussed by counsel," Commonwealth v. Damiano, 14 Mass. App. Ct. 615, 619-620, 441 N.E.2d 1046 (1982), did not coerce the defendant into admitting to the violations and waiving his right to a hearing. The judge did not participate in the sidebar conferences as an "active negotiator[ ]" with regard to the ultimate disposition of the case. Commonwealth v. Gordon, 410 Mass. 498, 501 n.3, 574 N.E.2d 974 (1991). Cf. id. (restricting judicial involvement in plea negotiations). Finally, the judge followed the preferred practice of conducting a colloquy with the defendant in which she fairly and meticulously secured the defendant's agreement to the factual basis for each of the alleged violations prior to accepting his admission and his waiver of the right to a hearing.

Accordingly, the order revoking probation and imposing sentence is affirmed. The order denying the defendant's motion to withdraw his stipulation to probation violations also is affirmed.

So ordered.

Attachment

?

      Under § 6(B) of the Guidelines for Probation Violation Proceedings in the Superior Court, Mass. Rules of Court, at 1013 (Thomson Reuters 2018), a final probation violation hearing consists of two parts: "(1) an evidentiary hearing to adjudicate whether the alleged violation has occurred; and (2) upon a finding of violation, a dispositional hearing."

      There is no indication in the transcript that when the case was called the second time there was a sidebar conference, and we assume the hearing was in open court in the presence of the defendant.

      The judge thereafter corrected the sentence on the charge of disseminating obscene material to a minor to from three to five years in State prison.

      Compare Mass. R. Crim. P. 23 (a), 471 Mass. 1501 (2015) (governing manner in which stipulations of fact agreed to by parties before or during trial are to be memorialized and used at trial); Mass. G. Evid. § 611(g) (2018) (explaining use of stipulations in pending civil and criminal cases).

      The District and Municipal Court departments have developed an approved form that is available to all judges, which memorializes the defendant's admission and waiver of the right to a final hearing. See Commentary to Rule 6(g) of the District/Municipal Courts Rules for Probation Violation Proceedings, Mass. Rules of Court, supra at 650. This form is contained in the Appendix to this opinion.

      The same principle applies in probation violation proceedings in the District Court and Boston Municipal Court departments. See Commentary to Rule 6(g) of the District/Municipal Courts Rules for Probation Violation Proceedings, Mass. Rules of Court, supra at 650, which provides in pertinent part:
      "Section (g) also provides that, unlike a guilty plea or admission to sufficient facts to a criminal charge, an admission to a probation violation may not be accompanied by conditions which, if not accepted by the court, would allow the probationer to withdraw the admission. In other words, there is no equivalency to the 'defendant-capped plea' which can be tendered in the context of a criminal proceeding. The court may allow a probationer to withdraw a probation violation admission based on the court's intended disposition as a matter of its discretion. The probationer may not withdraw an admission as a matter of right once an admission is submitted and accepted by the court. ...
      "The prohibition in section (g) against 'conditioned' probation violation admissions also precludes admissions conditioned by proposed dispositions 'agreed to' by the probation department or by a prosecutor. Such an agreement does not bind the court or permit the withdrawal of the admission if the court's disposition is other than that 'agreed upon' by a probation officer or prosecutor. The court may consult with probation regarding the disposition after finding a probation violation. See Rule 8(d). But for probation violation admissions there is no equivalent to the tender of criminal guilty pleas which may include dispositional terms agreed to by the prosecution."

      There are, of course, many sound reasons why a judge may elect to conduct a sidebar conference with the prosecutor, defense counsel, and the probation officer, but without the defendant, including security issues that arise when, as in this case, the defendant is in custody. In light of the defendant's allegations that he was misinformed about the contents of the sidebar conference, it is advisable that in such cases the judge's colloquy include a statement that no decision has been made about the disposition of the case and, if the defendant admits to one or more of the alleged violations, the judge reserves the right not only to allow the defendant to remain on probation, but to revoke the defendant's probation and to impose any sentence permitted by law.