Commonwealth v. Gardner ( 2018 )

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SJC-12495
COMMONWEALTH vs. RICHARD GARDNER.
Plymouth. May 7, 2018. - September 14, 2018.
Present: Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ.
Sex Offender. Due Process of Law, Sex offender. Jurisdiction,
Sex offender. Imprisonment, Transfer of
prisoner. Statute, Construction. Words, "Prisoner."
Civil action commenced in the Superior Court Department on
June 14, 2017.
A motion to dismiss was heard by Mark C. Gildea, J.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Gail M. McKenna, Assistant District Attorney (Shanan L.
Buckingham, Assistant District Attorney, also present) for the
Commonwealth.
Joseph M. Kenneally for the defendant.
David B. Hirsch, for Committee for Public Counsel Services,
amicus curiae, submitted a brief.
CYPHER, J. We are called upon once again to determine the
scope of persons who the Commonwealth may lawfully seek to
commit as sexually dangerous persons under G. L. c. 123A.
2
General Laws c. 123A, § 12 (b), authorizes the Commonwealth to
file a petition to civilly commit a "prisoner or youth" deemed
likely to be a "sexually dangerous person" (SDP), as that phrase
is defined in G. L. c. 123A, § 1. "Prisoner" refers, in
pertinent part, to a person who has previously been convicted of
an enumerated sexual offense in § 1, and is presently in custody
as a result of a criminal conviction. See Commonwealth
v. Libby, 472 Mass. 93, 95-96 (2015). We consider in this case
whether "prisoner" includes an individual in the custody of, and
serving a sentence in, another State. Applying the required
narrow construction of the SDP statute, our answer is no. There
can be no doubt that the Legislature intended SDP commitment to
extend only to those prisoners who are in Massachusetts custody,
serving a Massachusetts sentence, at the time the Commonwealth
files a commitment petition under § 12 (b).
When the Commonwealth filed the petition in this case, the
defendant was serving a Rhode Island sentence, albeit in a
Massachusetts prison, pursuant to his transfer under the New
England Interstate Corrections Compact (NEICC). The NEICC is an
agreement among the six New England States authorizing the
transfer of inmates between correctional facilities in those
States, in order to provide "for the confinement, treatment and
rehabilitation of offenders with the most economical use of
human and material resources." Under the NEICC, the defendant
3
remains under the jurisdiction of Rhode Island, not
Massachusetts, following his transfer to a Massachusetts prison
–- meaning the transfer conferred upon the Commonwealth no
greater authority to commit him than it possessed while the
defendant was in Rhode Island, which is none. We affirm the
motion judge's dismissal of the Commonwealth's petition.
Facts. The defendant, Richard Gardner, was convicted of
several sexual assaults committed against four children in 1987
and 1988. The 1987 offense occurred when the defendant was
twenty-one years old; he was charged with kidnapping and rape of
a child in Massachusetts. While released on bail, in June and
July of 1988, the defendant sexually assaulted three additional
children in Massachusetts and Rhode Island. He was apprehended
in Rhode Island, and in May, 1989, a Rhode Island jury found him
guilty of sexual offenses and other crimes. He was ultimately
sentenced in Rhode Island to fifty years in prison, with thirty
years to serve and the balance suspended. 1 Separately, in
August, 1989, while in Rhode Island custody, the defendant
pleaded guilty to the Massachusetts charges of kidnapping and
child rape, stemming from the 1987 incident; for this he
received a sentence of from ten to fifteen years in prison. In
1 The defendant was originally sentenced to 190 years in
prison, but in 1992 his Rhode Island convictions were reversed;
he pleaded guilty to the same charges in 1993 and received the
revised fifty-year sentence.
4
May, 1991, the defendant also pleaded guilty to Massachusetts
charges for the sexual offenses he had committed in July, 1988,
and received another sentence of from seven and one-half to ten
years. 2
In April, 2004, Rhode Island released the defendant to the
custody of the Massachusetts Department of Correction to serve
the two Massachusetts sentences. Near the end of the
defendant's sentences, the Plymouth County district attorney
(district attorney) was notified of the defendant's impending
release, but for reasons that are unclear, the district attorney
failed at that time to petition to have the defendant civilly
committed as a sexually dangerous person. In October, 2016, the
defendant was released from Massachusetts custody to begin his
probationary sentence in Rhode Island.
Eleven days after his release, the defendant was arrested
in Quincy for violating a local bylaw that prohibits sex
offenders from entering the public library. 3 He was brought back
to Rhode Island where he was found in violation of his probation
and sentenced to one year in prison, with the balance of his
2 While in Rhode Island custody, the defendant sued the
Massachusetts commissioner of correction, in an unsuccessful
attempt to receive credit against his Massachusetts sentences
for the time he had served in Rhode Island. See Gardner v.
Commissioner of Correction, 56 Mass. App. Ct. 31, 33-34 (2002).
3 Because the defendant is a Massachusetts resident, his
Rhode Island probation was transferred to the Superior Court in
Norfolk County for supervision.
5
probation to resume upon his release. In March, 2017, the
district attorney contacted an administrator with the
Massachusetts Department of Correction to inform him of the
district attorney's ongoing efforts to "get [the defendant] back
to" Massachusetts to secure "access to [the defendant] to file
the [SDP] petition." With four weeks left to serve on his one-
year Rhode Island sentence, the defendant was involuntarily
transferred to Massachusetts, pursuant to the NEICC, to serve
the remainder of his sentence. The day after the defendant's
transfer from Rhode Island to Massachusetts, the Commonwealth
filed the underlying petition in the Superior Court seeking his
civil commitment as an SDP.
With the defendant's sentence set to expire on July 13,
2017, the Superior Court judge temporarily committed the
defendant pending a probable cause determination. Later that
month, the judge found probable cause to believe that the
defendant was sexually dangerous, and continued his temporary
commitment pending a psychological examination and trial. In
August, 2017, the defendant moved to dismiss the petition,
arguing that (1) the district attorney lacked the authority to
file the petition because the defendant was not serving a
Massachusetts sentence at the time it was filed, and (2) the
defendant's transfer was invalid because it violated provisions
of the NEICC. The judge granted the defendant's motion,
6
agreeing that because the defendant was not serving a
Massachusetts sentence, the district attorney lacked the
authority to petition for the defendant's commitment. The judge
stayed the defendant's release pending the Commonwealth's
appeal, which entered in the Appeals Court in January, 2018, and
was transferred, sua sponte, to this court in March. The
defendant remains civilly committed in the Massachusetts
Treatment Center, where he has been since the expiration of his
Rhode Island sentence in July, 2017.
Discussion. 4 General Laws c. 123A, § 12 (b), provides:
"When the district attorney or the attorney general
determines that the prisoner or youth . . . is likely to be
a sexually dangerous person as defined in [§ 1], the
[prosecutor] . . . may file a petition alleging that the
prisoner . . . is a sexually dangerous person . . . ." 5
"Prisoner or youth" are not defined terms in G. L. c. 123A.
We have recognized, however, that those terms (as they are
4 We acknowledge the brief submitted by amicus curiae, the
Committee for Public Counsel Services.
5 "Sexually dangerous person" is defined, in pertinent part,
as "any person who has been [] convicted of . . . a sexual
offense" enumerated in § 1, "and who suffers from a mental
abnormality or personality disorder which makes the person
likely to engage in sexual offenses if not confined to a secure
facility." G. L. c. 123A, § 1.
"Sexual offense" is defined to include a host of enumerated
sexual offenses under Massachusetts law, "or a like violation of
the laws of another state, the United States or a military,
territorial, or Indian tribal authority; and any other offense,
the facts of which, under the totality of the circumstances,
manifest a sexual motivation or pattern of conduct or series of
acts of sexually-motivated offenses." Id.
7
employed in § 12 [b]) are "plainly a shorthand reference" to
"the three categories of persons for whom notice must be given
of their impending release" under § 12 (a), "and are limited in
scope to those three categories." Libby, 472 Mass. at 95, 100.
See id. at 95 ("It is plain from the statute that the relevant
district attorney or the Attorney General may file an SDP
petition only against a person who is included within the three
categories of persons for whom notice must be given"). Under
§ 12 (a), an "agency with jurisdiction" must notify "the
district attorney of the county where the offense occurred and
the attorney general six months prior to the release" of three
categories of persons. These are "person[s] who [have] been
convicted of a sexual offense," and are presently "in custody
because of [1] a criminal conviction, [2] an adjudication as a
delinquent juvenile or youthful offender, or [3] a judicial
finding that the person is incompetent to stand
trial." Libby, supra at 93. See G. L. c. 123A, § 12 (a). 6
6 Section 12 (a) describes the three categories of persons
for whom notice must be given as "(1) 'a person who has ever
been convicted of or adjudicated as a delinquent juvenile or
youthful offender by reason of a sexual offense as defined in
[§ 1], regardless of the reason for the current incarceration,
confinement or commitment'; (2) a person charged with such
sexual offense who 'has been found incompetent to stand trial,'
and (3) a person charged with 'any offense,' who 'is currently
incompetent to stand trial,' and who 'has previously been
convicted of or adjudicated as a delinquent juvenile or youthful
offender by reason of a sexual offense.'" Commonwealth v.
Libby, 472 Mass. 93, 95 (2015), quoting G. L. c. 123A, § 12 (a).
8
The Commonwealth contended that the defendant falls under
the first category, as he was previously convicted of an
enumerated sexual offense, and is currently in custody as a
result of a conviction for violating his Rhode Island probation.
In the Commonwealth's view, the fact that the defendant is not
currently serving a Massachusetts sentence makes no difference
concerning its authority to petition for his commitment in
Massachusetts. 7 Its position was that G. L. c. 123A confers the
authority to file a petition against a person serving an out-of-
State sentence anywhere in the country, so long as he or she
As mentioned, this court clarified in Libby that § 12 (a) also
defines "the three categories of persons . . . who are subject
to the filing of an SDP petition." Id. at 100. Narrowly
construing the statute, the court held that an SDP petition
under § 12 (b) may be filed "against a person who has been
convicted of a sexual offense only where the person is in
custody because of a criminal conviction, an adjudication as a
delinquent juvenile or youthful offender, or a judicial finding
that the person is incompetent to stand trial." Id. at 93.
Necessarily, this also means that these are the three categories
of persons for whom notice must be given under § 12 (a) -- and
hence, we articulate these three categories using the language
from Libby, rather than the literal language of § 12 (a). It is
also important to note that the court's interpretation in Libby
was based in part on its explanation that the phrase in
§ 12 (a), "regardless of the reason for the current
incarceration, confinement or commitment," was intended only to
"allow an SDP petition to be filed against a person convicted of
a sexual offense who was serving a sentence for a nonsexual
offense, or who was found incompetent to stand trial on a
nonsexual offense." Libby at 97.
7 The Commonwealth conceded in the Superior Court that the
defendant's transfer to Massachusetts under the NEICC did not
transform his Rhode Island probation sentence into a
Massachusetts sentence.
9
previously committed a sex offense in Massachusetts. The
defendant moved to dismiss, arguing in part that the
Commonwealth lacks jurisdiction because he was not serving a
Massachusetts sentence at the time the Commonwealth filed the
petition. The Superior Court judge agreed, finding an absence
of legislative intent that the SDP commitment scheme should
extend to prisoners of other States. He also noted that "[t]he
Commonwealth's interpretation would drastically expand the scope
of the SDP statute, implicating due process concerns."
Because G. L. c. 123A is a statute in derogation of
liberty, we must interpret its terms narrowly. Commonwealth
v. Gillis, 448 Mass. 354, 357 (2007). This "more stringent
analysis . . . not only helps avoid possible constitutional due
process problems . . . but also helps ensure that individuals
are not deprived of liberty without a clear statement of
legislative intent to do so." Id., citing Commonwealth
v. Nieves, 446 Mass. 583, 597-598 (2006). Accordingly, our
courts have consistently declined to broaden the class of
persons subject to SDP commitment in the absence of such a clear
statement of legislative intent. Gillis, supra at 358,
citing Commonwealth v. McLeod, 437 Mass. 286, 294 (2002). See,
e.g., Gillis, supra at 354-355 (individuals not serving any
criminal sentence and have no pending charges, but who are in
State custody as result of civil commitment due to mental
10
illness, not subject to SDP proceedings); Commonwealth v. Allen,
73 Mass. App. Ct. 862, 864 (2009) (individual who had completed
criminal sentence, yet remained in custody solely due to
clerical error, not "prisoner" subject to commitment); Coffin
v. Superintendent, Mass. Treatment Ctr., 458 Mass. 186, 187
(2010) (Commonwealth may not petition for commitment of
individual incarcerated for violating terms of sentence imposed
under unconstitutional statute); Libby, 472 Mass. at 100
(persons previously convicted of sexual offense who are
currently in custody awaiting trial not subject to SDP
commitment).
In support of its position that a § 12 (b) petition may be
filed against an out-of-State prisoner, the Commonwealth cites
the plain language of the statute, which permits a commitment
petition to be filed against a "prisoner," without any
qualifier. The Legislature never restricted § 12 (b) solely to
"Massachusetts prisoners," the Commonwealth argues, and by
imposing such a limitation the motion judge effectively rewrote
the statute, by inserting the word "Massachusetts." The
Commonwealth suggests that the all-purpose definition of
"prisoner" is contained in G. L. c. 125, § 1 (m), which defines
that term as "a committed offender and such other person as is
placed in custody in a correctional facility in accordance with
11
law." 8 Gardner fits these definitions, the Commonwealth posits,
as he was found in violation of his Rhode Island probation,
Rhode Island sentenced him to one year in prison, and he is
presently in custody serving that sentence in a correctional
facility.
Our cases make clear, however, that "[i]n determining
eligibility for civil commitment, the fact of custody alone is
not determinative. . . . Nor is it enough that an individual is
serving a sentence." Coffin, 458 Mass. at 189, citing Allen, 73
Mass. App. Ct. at 864. Likewise, this court rejected the
Commonwealth's argument that the definition of "prisoner" in
G. L. c. 125, § 1 (m), applies in the SDP context over a decade
ago, in Gillis, 448 Mass. at 358-359. See Allen, 73 Mass. App.
Ct. at 864, citing Gillis, supra ("the Supreme Judicial Court
has held that the definition of 'prisoner' contained in G. L.
c. 125, § 1 (m), . . . is not to be used for G. L. c. 123A, § 12
[b]"). There we observed that G. L. c. 125, § 1, states that
its definitions shall apply "unless the context otherwise
requires," and we held that "the context of the SDP statute" --
a statute in derogation of liberty -- "requires a construction
8"Committed offender" is defined as "a person convicted of
a crime and committed, under sentence, to a correctional
facility." G. L. c. 125, § 1 (c). "Correctional facility"
refers to "any building . . . used for the custody, control and
rehabilitation of committed offenders and of such other persons
as may be placed in custody therein in accordance with law."
G. L. c. 123A, § 1 (d).
12
of 'prisoner' that is no broader than its ordinary
usage." Gillis, supra at 359. Accordingly, the court adopted,
for purposes of deciding that case, the more narrow, dictionary
definition of "prisoner," which is "an individual who is either
serving a criminal sentence or awaiting trial." Id. at 358-259
citing 12 Oxford English Dictionary 513 (2d ed. 1989). 9
Examining § 12 (b) in its proper context, and as part of
G. L. c. 123A as a whole, see Commonwealth v. Poissant, 443
Mass. 558, 563 (2005) (we interpret SDP statute "as a whole to
produce an internal consistency" [citation omitted]), we discern
no legislative intent to commit out-of-State prisoners. To the
contrary, the several provisions of G. L. c. 123A that make up
the commitment procedure evince a legislative recognition that
the Commonwealth may only commit those within its own custody.
Under § 12 (a), which informs our understanding of "prisoner or
youth" in § 12 (b), see Libby, 472 Mass. at 95, and which
represents the first step in the commitment process, see Nieves,
446 Mass. at 586, an "agency with jurisdiction" over the person
9 Subsequently, in Libby, 472 Mass. at 99-100, we clarified
that our adoption of the dictionary definition of "prisoner" was
for purposes of deciding the issue in Commonwealth v. Gillis,
448 Mass. 354, 358-359 (2007), and that persons in custody
"awaiting trial" are not in fact subject to commitment under
G. L. c. 123A. "[I]t would be unreasonable to strip the words
'prisoner or youth' from their context in § 12 (b), apply their
dictionary definitions, and conclude that the Legislature
intended that a district attorney may file an SDP petition
against any prisoner or youth, as those words are commonly
used." Libby, supra at 100.
13
named in the petition "shall notify in writing" the relevant
district attorney and the Attorney General six months prior to
the prisoner's release, and "shall also identify those prisoners
. . . who have a particularly high likelihood of meeting the
criteria for a sexually dangerous person." See Commonwealth
v. Kennedy, 435 Mass. 527, 530 (2001) ("The word 'shall' in this
context, where substantive rights are involved, indicates that
the action is mandatory. This imperative is at its strongest in
such cases"). "Agency with jurisdiction" is defined as "the
agency with the authority to direct the release of a person
presently incarcerated, confined, or committed." G. L. c. 123A,
§ 1.
Under the Commonwealth's interpretation, in the case of an
out-of-State prisoner, § 12 (a) would constitute a directive
from Massachusetts to an agency of another State (for that State
would possess "the authority to direct the release of [the]
[prisoner]," § 1), to undertake such tasks as an analysis of
Massachusetts law. We decline to interpret G. L. c. 123A in
this manner, because legally and practically, the Legislature is
powerless to impose such obligations on another State. See,
e.g., New York Life Ins. Co. v. Head, 234 U.S. 149, 161 (1914)
("it would be impossible to permit the statutes of [one State]
to operate beyond the jurisdiction of that State . . . without
throwing down the constitutional barriers by which all the
14
States are restricted within the orbits of their lawful
authority and upon the preservation of which the Government
under the Constitution depends").
The Commonwealth's argument fares no better even if it took
the more narrow position that although SDP petitions generally
cannot be filed against out-of-State prisoners, the defendant is
in fact a Massachusetts prisoner due to his transfer to a
Massachusetts correctional institution under the NEICC. 10 The
NEICC states that "[i]nmates confined in an institution pursuant
to the terms of this compact shall at all times be subject to
the jurisdiction of the sending state and may at any time be
removed therefrom for transfer to a prison or other institution
within the sending state . . . ." This provision is
incorporated into the Federal and Interstate Compact policies
and procedures of the Department of Correction. See 103 DOC
419.09 (2017) ("[i]nmates confined in an institution pursuant to
the provisions of the [NEICC] shall be subject to the
jurisdiction of the sending state"). Even in these
circumstances, then, the "agency with jurisdiction" over the
10Although the Commonwealth's position in the Superior
Court was that the defendant's transfer to Massachusetts under
NEICC was irrelevant to its authority to petition for his
commitment here, at oral argument before this court, the
Commonwealth seemed to agree that had the defendant remained in
Rhode Island and finished serving his sentence there, the
Commonwealth would be powerless to initiate commitment
proceedings against him.
15
defendant remained a Rhode Island agency, not the Massachusetts
Department of Correction. Likewise, the purpose of the six-
month notice requirement in § 12 (a) is to ensure "that the
Commonwealth will be in a position to complete most, if not all,
of the G. L. c. 123A proceedings before the inmate's
discharge." Kennedy, 435 Mass. at 530-531. This cannot
reasonably apply to prisoners such as the defendant who are
transferred under the NEICC, because the agreement states that
they can be removed from the Commonwealth "at any time." We
applied the same reasoning in Libby to reject the Commonwealth's
argument that a § 12 (b) petition may be filed against a person
held in custody before trial solely due to an inability to post
bail. See Libby, supra at 99 ("Such a notice requirement
reasonably could not be applied to a person who is in custody
only because of an inability to post bail, who could obtain
immediate release upon posting bail. . . . If the Legislature
had contemplated that an SDP petition could be filed after a
person's arrest while that person was in custody awaiting a bail
determination or seeking the funds to post bail, it would have
recognized this possibility in its notice provision").
That the Legislature intended SDP commitment to extend only
to those "prisoner[s] or youth[s]" within Massachusetts custody
is further demonstrated by the other procedural components of G.
L. c. 123A. After notice under § 12 (a), and the filing of the
16
§ 12 (b) petition, the court holds a hearing under § 12 (c) to
determine whether there is probable cause to believe that the
person named in the petition is sexually dangerous. Here the
Legislature specified that the prisoner "shall be provided . . .
an opportunity to appear in person" at the hearing, which would
generally be impossible if he or she were in the custody of
another State.
Likewise, G. L. c. 123A, §§ 12 (e), 13 (a), and 14 (a),
authorize the temporary commitment of the person named in the
petition for the course of commitment proceedings; in
particular, § 13 (a) directs that the individual "shall" be held
for the purposes of psychological examination and trial. This
provision assumes that the Commonwealth has access to the person
named in the petition, which, in the case of an out-of-State
prisoner, would be possible only through the cooperation of
another State sending its prisoner to Massachusetts, before the
prisoner has completed his or her sentence in that State, for
indefinite commitment here. It makes no sense that the
Legislature would employ the word "shall" in this context, to
impose several procedural requirements that in reality could
only happen for out-of-State prisoners through the voluntary
(and perhaps unlikely) act of another sovereign. The far more
sensible interpretation, and the one that gives greatest effect
to the terms of G. L. c. 123A, is that the Legislature intended
17
SDP commitment to extend only to those "prisoner[s] or youth[s]"
already in the Commonwealth's custody, serving a sentence here,
when the § 12 (b) petition is filed. See Chin v. Merriot, 470
Mass. 527, 537 (2015) ("we give effect to all words of a
statute, assuming none to be superfluous" [quotations and
citation omitted]).
We note finally that this limitation is also necessary from
a jurisdictional standpoint. If the Commonwealth is to deprive
an individual of his or her liberty "for an indeterminate period
of a minimum of one day and a maximum of such person's natural
life," as the SDP statute provides, see G. L. c. 123A, § 14 (d),
there must be some jurisdictional basis -– a nexus to
Massachusetts -– for that act. See, e.g., J. McIntyre Mach.,
Ltd. v. Nicastro, 564 U.S. 873, 880 (2011) ("As a general rule"
under due process clause, "neither statute nor judicial decree
may bind strangers to the State"). In the Superior Court, the
Commonwealth argued that this nexus is established by a
requirement that a prisoner has previously committed a sexual
offense in Massachusetts. As the Superior Court judge
explained, "the Commonwealth's position is that Chapter 123A
confers the authority to file a petition against a prisoner
serving an out of state sentence anywhere in the country, as
long as he committed a sex offense in the Commonwealth at some
point in the past". Although on the particular facts of this
18
case, the defendant committed several sexual offenses in
Massachusetts, that is not a prerequisite to his eligibility for
commitment under the scheme enacted by the Legislature. In
defining "sexual offense" -- the principal predicate for
consideration as an SDP -- the Legislature included not only
Massachusetts offenses, but also "like violation[s] of the laws
of another state, the United States, or a military, territorial
or Indian tribal authority." G. L. c. 123A, § 1. Were we to
agree with the Commonwealth that G. L. c. 123A permits the
commitment of out-of-State prisoners, in addition to those who
have previously committed solely out-of-State sexual offenses,
as the Legislature has already provided, the result would be
that § 12 (b) petitions could be filed against individuals with
no connection to Massachusetts whatsoever. That cannot be the
case if G. L. c. 123A is to comport with due process.
See Commonwealth v. Lamb, 365 Mass. 265, 269 (1974) ("We must
construe [G. L. c. 123A], if fairly possible, so as to avoid not
only the conclusion that it is unconstitutional but also grave
doubts upon that score" [quotations and citation omitted]).
Conclusion. We affirm the Superior Court judge's dismissal
of the petition, and remand the case for proceedings consistent
with this opinion.
So ordered.