My question involves criminal law for the state of: MASSACHUSETTS


I need to know if we can file for an appeal. I have taken it upon myself to write directly to the sentencing judge and explain the entire situation as well as sent him all of the "evidence" such as the drug test hair results, prescription papers, everything. This is the story. My husband was sentenced to two years probation with a 10 month suspended sentence. He was stipulated to comply with probation requirements, which were to attend two AA meetings a week, undergo substance abuse evaluation and treatment, undergo psychological assessment and treatment, abide by therapy and medication requirements, to undergo random drug and alcohol screenings, meet with probation regularly, and to stay out of trouble.


In June we received the first notice of violation for a missed random screen. Now since day one when he was on probation I was the one who called at 5:30 am and I have a list where I wrote down each and every day what the color of the day was. The probation officer tried to say a dual color was called that day when it was not. I have the list and gave it to the public defender. I told her that she should subpoena the list from the OCC and I would guarantee that it would match 100% color for color. She refused to do this.


On July 31st we received another violation notice that my husband had tested positive for a benzodiazepine and heroin. On July 30th he was in the emergency room because of a bowel impaction. They had given him Valium in the ER prior to a procedure. He was never given a prescription, just that one dose. When he went in for a probation meeting, he gave her the paper he received from the hospital. It had only stated that he was given a “sedating medication.” The probation officer said we did not give her a “valid prescription” when there was no prescription to give, it was a one time dose. We had signed papers for the attorney to get the records from the hospital that would clearly state that he was given Valium and she never did.


Also on July 31st the violation stated that he tested positive for heroin. My husband has NEVER done heroin. He smoked marijuana when he was younger, but never once touch heroin. Immediately I started searching around and found a facility that offered hair analysis drug testing that would go back 90 days. On August 1st the day after finding out about this, we went and he underwent the hair test after we paid over $100 for it. Almost two weeks later we found out that they did not get enough hair and the test would have to be run again. I explained to the attorney we simply did not have the $60+ to go to the testing facility again. She had her assistant take my husband to the testing facility, in which they ran the test again. This time, a week later we received the results which concluded that he tested negative for heroin, but positive for codeine, in which we had a legitimate prescription for the codeine. The attorney had these results, and refused to use them on the contention that she had spoken to her “forensic toxicologist” who said these results are not “reliable” when in my research I found in other legal cases they are admitted for evidence when it is used against a defendant rather than for them. The attorney absolutely flatly refused to submit these to the judge. It was the only thing to prove his innocence.


After, the probation officer said that my husband tested positive in the random screens not once, but twice for suboxone. Convenient that now the probation officer was accusing him of using a drug that was utilized to get someone off of heroin. At this point we did not have the money to fight the charge to go obtain another hair test. My husband has bipolar, which he was in therapy, which was going great, was in the middle of medication trials and they were not going that well with severe side effects to some medications and multiple calls and visits to the medication doctor. He also has ADHD, PTSD, anxiety, severe disabling back problems and nerve damage that he is on social security for, as well as recurrent shoulder problems. Once all of these accusations regarding all the drug use starting coming down, his bipolar was in a constant flare. We were actually considering hospitalization as he could not control the moods, he was angry and depressed, yelling, etc. We had a visit with the attorney on September 17th, which was also our 10 year wedding anniversary. He was actually in somewhat a good mood most of that morning early afternoon because of that. When we were in the attorneys office, she was telling him to “stipulate” to the charges, which in our terms was just pleading guilty. We have been talking to her for quite a while about this, before this actual visit on the phone and through e-mail. He was not going to plead guilty to something he never did. Why should he? He had time hanging over his head, 10 more months away from his family and away from treatment. He did nothing wrong and she wanted him to say he was guilty. Even though we had all the proof stated above.


I do have to incidentally note, that the probation officer and the attorney live 3 minutes away from each other in a town locally. The attorney actually told us they bump into each other in the grocery store and it is very “awkward.” The attorney presents herself that she is scared to death of the probation officer. The attorney did not even take the time to talk to the probation officer before the violation hearing and at no time before that, the only time the attorney would talk to the probation officer was in court, and even then it was through the judge, not even directly. So we went home after the visit with the attorney on the 17th of September. My husband proceeded to go get beer and he drank four beers. He was going to sign himself into a treatment facility for the bipolar the next morning. We were going to get him signed into a mental health facility and the attorney knew it. Combined with the medication he was taking at the time, this had a very adverse effect. Again, his bipolar in combination with the alcohol and the medication made him nasty. He threw a mug at the wall, he was yelling and screaming and could not calm himself down. My daughter heard me say “get off of me” and when she came out of her room she saw him on top of me and immediately contacted the police. I am not sure what exactly she told them. The truth in the matter is that yes he threw stuff around the bedroom, nothing of which was directed at anyone, just throwing the items at the wall. Never at anyone. He yelled and screamed, which our daughters heard. The truth was our cat had jumped up on the bed and caught my leg with his claw, which I have now a scar, but I have many scars from being scratched by the cats. When she said she saw him on top of me, she did not realize that he was apologizing for the yelling and that it was our anniversary and he was trying to give me a hug and kiss, but because of the drinking and medication it looked a little awkward as he was trying to do it on the bed while I was sitting on the bed. He was arrested again and charged with assault even though nothing like that took place.


Mind you our 14-year-old daughter was in her bedroom, they would have known from prior we had two daughters, but yet they never made a report to DCFS if a “domestic” incident occurred.

So the probation officer again violated his probation. He was in court on October 17th and the judge imposed the 10 month sentence with 30 days credit. The attorney did try to ask for a dual treatment program instead and this was refused. This is when the attorney did not give any of the evidence we had at all. The fact that my husband was ordered to do 2 AA meetings a week and was doing 4 and always provided proof to probation, the fact he was doing counseling, and I had a letter from the therapist saying he was making excellent progress until the violations started happening concerning the allegations of drug use, he was in substance abuse counseling, he went to every single random drug screen, he went to every single probation visit and did not miss one, and the hair test we had independently done never accounted for anything.


I also have to add that on September 17th I did file a complaint with the Commissioner of Probation regarding his probation officer and things she had said and done that were illegal and beyond the courts discretion that I have not mentioned here. She knew of this complaint and the investigation on October 17th and was possibly prejudiced against reprobating my husband. My husband technically did violate probation when he drank, he would plead guilty to that in a minute, but he would not plead guilty to everything else. The judge could have had a large circle of discretion when it came to sentencing my husband, had he known all of the facts in the case. The attorney failed at adequately representing my husband.


I myself on Friday October 25th mailed to the sentencing judge at Lowell district court a letter explaining the entire circumstances and copied every single piece of evidence the attorney should have given him and mail them. I have made one million phone calls to try to find out how to file an appeal. I e-mailed the attorney about an appeal and she said he could not file an appeal. I want to find my husband a new attorney if for nothing else to appeal this sentencing based on the judge did not have all the facts. We are low income, which really hurts him in the long run, but I am willing to let bills, rent, whatever go to be able to pay if I need to.

I need to find out ASAP if we can file an appeal. I know with different appeals there is a time limit and for example, if it was a 30 day limit, we are half way through that already and would really need to move quickly. I am going to try to call the court to follow up on my letter, but I doubt that will get anywhere. He does go to court again on 11/18 on the new charge that I listed above, but I am fairly confident that that case will be thrown out that day or shortly thereafter.

Any info, advice would be greatly appreciated. I have no idea of what to do next.