Goe v. Commissioner of Probation ( 2016 )

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SJC-11841
GEORGE GOE1 vs. COMMISSIONER OF PROBATION & another.2
Suffolk. November 2, 2015. - March 14, 2016.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.
Practice, Criminal, Probation. Interstate Compact for Adult
Offender Supervision. Global Positioning System Device.
Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on January 29, 2015.
The case was reported by Cordy, J.
Beth L. Eisenberg, Committee for Public Counsel Services
(Lily Lockhart, Committee for Public Counsel Services, & Spencer
Lord with her) for the petitioner.
Steven R. Strom, of Connecticut, for the intervener.
Sarah M. Joss, Special Assistant Attorney General, for
Commissioner of Probation.
U. Gwyn Williams, Laura Carey, & Charles Stones, for
Citizens for Juvenile Justice & another, amici curiae, submitted
a brief.
1
A pseudonym.
2
Interstate Commission for Adult Offender Supervision,
intervener.
2
GANTS, C.J. This case comes to us on a reservation and
report from the single justice asking the following questions:
"(1) Whether the Massachusetts courts are the
appropriate forum for challenging additional probation
conditions imposed on a probationer transferred to
Massachusetts pursuant to the Interstate Compact for Adult
Offender Supervision; and, if so, what is the proper
mechanism for mounting such a challenge?
"(2) Whether a transferee probationer is entitled to
actual notice of mandatory [global positioning system
(GPS)] monitoring pursuant to G. L. c. 265, § 47[,] from
the sentencing judge, or whether such notice is implied or
waived by a petitioner's voluntary transfer to
Massachusetts[?]
"(3) Whether mandatory GPS monitoring for crimes
committed as a minor constitutes cruel and unusual
punishment, where the minor was convicted as an adult in
another jurisdiction?
"(4) Whether the Commissioner of Probation's Policy on
the Issuance of Travel Permits is ultra vires; and, if not,
whether the application of that policy to the petitioner
violated his right to interstate travel?"
In answer to the first question, we conclude that, where a
probationer whose supervision is transferred to Massachusetts
under the Interstate Compact for Adult Offender Supervision
(compact) contends that a special condition of probation that
was added by Massachusetts is not mandated by Massachusetts law
or is unconstitutional, this determination is appropriately made
by a Massachusetts court, and the appropriate mechanism to
obtain such a determination is through a complaint for
declaratory relief. We also conclude that the Massachusetts
probation department may not add mandatory GPS monitoring under
3
G. L. c. 265, § 47, as a special condition of probation for this
probationer. In light of that conclusion, we decline to answer
questions two and three because they are moot. In answer to
question four, regarding the Policy on the Issuance of Travel
Permits promulgated by the Massachusetts Commissioner of
Probation (commissioner), we conclude that the prohibition on
out-of-State travel for probationers being supervised for sex
offenses is not an additional condition of probation imposed on
a transferred probationer. We, therefore, reject the contention
that the policy is ultra vires as an additional condition. We
decline to answer whether the application of that policy to the
petitioner violated his right to interstate travel because the
appropriate forum for such a constitutional claim is the sending
State, where it may be considered with the petitioner's
nonconstitutional arguments for modification of the sending
State's condition that he not travel out-of-State without
permission from his probation officer.3
Background. On April 29, 2013, the petitioner, who was the
defendant in criminal proceedings in the Connecticut Superior
Court (defendant), pleaded guilty to two crimes that he
committed at the age of fourteen against a six year old
3
We acknowledge the brief submitted by the intervener
Interstate Commission for Adult Offender Supervision and the
amicus brief submitted by the Citizens for Juvenile Justice and
the Children's Law Center for Massachusetts.
4
relative: sexual assault in the third degree and risk of injury
to a minor. Although he was a juvenile when he committed these
crimes and only fifteen years old when he pleaded guilty to
their commission, he was convicted as an adult. After
completing a residential treatment program, he was sentenced to
a period of incarceration of five years (the execution of which
was suspended) and ten years of probation supervision. The
judge ordered a number of special conditions and, as permitted
under Connecticut law, Conn. Gen. Stat. § 53a-30(b) (2015),
authorized the probation department to add "any other conditions
deemed appropriate."
As a general condition of probation, the defendant was
ordered not to leave the State of Connecticut "without
permission from the Probation Officer." The Connecticut
probation department also added twenty-four special conditions,
including that the defendant "will submit to electronic
monitoring as directed by a Probation Officer." The defendant
signed the probation form that set forth these conditions and
that obliged him to "abide by them," and his signature was
witnessed by his grandmother.
The defendant applied pursuant to the compact to transfer
his probation supervision to Massachusetts, where he intended to
5
live with his maternal grandparents.4 His application was
granted and his supervision was transferred to Massachusetts,
where he was assigned to the probation service of the Middlesex
County Division of the Juvenile Court Department in Lowell
because he was then sixteen years old.
On February 19, 2014, the defendant filed a "Motion to
Reopen and Modify Conditions of Probation" in the Superior Court
in Connecticut that requested modification of several
conditions, claiming they were unnecessary, impossible to comply
with, or detrimental to his rehabilitation. Among the
conditions he sought to modify were (1) that he submit to
electronic monitoring as directed by a probation officer, and
(2) that he not travel out of Massachusetts without the
permission of a probation officer.5 As to these conditions, the
defendant asked the judge to modify or eliminate the requirement
of electronic monitoring, and to authorize him, with prior
4
The defendant's application fell within the Interstate
Compact for Adult Offender Supervision (compact) rather than the
Interstate Compact for Juveniles because the compact defines
"[a]dult" to mean "both individuals legally classified as adults
and juveniles treated as adults by court order, statute, or
operation of law." Interstate Commission for Adult Offender
Supervision, ICAOS Rules, Rule 1.101, at 5 (effective Mar. 1,
2014) (ICAOS Rules),
http://www.interstatecompact.org/Portals/0/library/legal/ICAOS_R
ules.pdf [https://perma.cc/SM9H-NQBL].
5
The defendant claimed that "[t]he Massachusetts
[p]robation [d]epartment refuses to permit [him] to travel out
of state during the [ten] year period of his probation."
6
approval of the Connecticut or Massachusetts probation
department, to travel with his maternal grandparents to New
Hampshire every weekend from May 23 to September 1, 2014. On
April 3, 2014, as to these conditions, the judge granted the
defendant's motion only to the extent that "GPS monitoring will
be at [the] discretion of [the State] of Massachusetts Dept. of
Probation (Juvenile)."
On June 3, 2014, the defendant's attorneys wrote a letter
to the commissioner asking that the defendant not be subjected
to mandatory GPS monitoring, and that he be considered for
travel permits to New Hampshire and Florida, "so long as his
itinerary and other aspects of his travel meet approval by his
Probation Officer." On August 22, 2014, the commissioner
responded that the probation department considered the
defendant's arguments for relief from the GPS requirement but
decided to impose GPS monitoring because of the level of
seriousness of the crime, the difference in age between the
defendant and the victim, "the nature of the supervision for
another state," the level of risk posed by the above factors,
"the fact that he was treated in Connecticut as an adult on a
long adult probation order[,] and . . . that Connecticut
originally included GPS as a condition and then modified its
Order to leave it to Massachusetts' discretion." He added that,
"[b]efore Probation can consider any adjustment to the GPS
7
requirement, [the defendant] will have to complete one year of
supervision with no violations and with full compliance."6 The
commissioner also declared that, once the defendant turned
eighteen years of age [which he did in July, 2015], "Probation
will continue the GPS as it would for any adult under [G. L.
c. 265, § 47]."7,8
The commissioner also wrote that the defendant had not
justified an exception to the probation department's travel
policy, dated January 11, 2012, which declared that the
"Probation Service shall not authorize travel permits" under
various circumstances, including where "[t]he probationer has an
order of electronic monitoring . . . as a condition of
probation," where "[t]he probationer is being supervised for a
sex offense," or where the probationer is an "interstate compact
sex offender unless the sending state court has approved, and
6
The Massachusetts Commissioner of Probation (commissioner)
added that the probation department would need "an independent
evaluation of his level of risk."
7
General Laws, c. 265, § 47, provides in relevant part:
"Any person who is placed on probation for any offense
listed within the definition of 'sex offense', a 'sex
offense involving a child' or a 'sexually violent offense',
as defined in [G. L. c. 6, § 178C], shall, as a requirement
of any term of probation, wear a global positioning system
[GPS] device . . . ."
8
The commissioner characterized the defendant's letter as
requesting that the defendant "be free of GPS monitoring,
despite G. L. c. 265, § 47."
8
the probationer has produced, a travel permit in writing"
(emphasis in original). The commissioner noted that, although
the probation department will not authorize travel permits in
these circumstances, "out of state travel is possible where a
judge authorizes it."
On March 13, 2015, the defendant appeared the Superior
Court in Connecticut and admitted that he violated conditions of
his probation by joining and participating in the Boy Scouts and
by accessing a Facebook account without permission. The judge
found the defendant in violation of his probation and placed him
on a six-month "watch" during which he would be monitored month-
to-month in what the judge described as "intensive sex offender
probation." If the defendant completed the six-month period
with no violations of the conditions of probation, he would be
returned to probation with the same termination date and the
same conditions as were originally imposed.9
9
The commissioner contends that the judge at this probation
violation hearing ordered mandatory GPS monitoring because the
docket sheet regarding that hearing included a clerk's note that
the "[defendant] can go back to live in Mass. Do GPS there."
The docket notation, however, is not supported by the transcript
of that hearing, which reflects that the judge explained to the
defendant that, if he complied with all the conditions of his
probation during the six-month "watch" period, he would "be put
back on probation with the original conditions reimposed." The
only reference to GPS monitoring at the hearing occurred after
the judge had accepted the defendant's admission to a violation
of probation and ordered that a finding of violation may enter,
when the defendant's attorney informed the judge that the
defendant was "under a GPS monitoring system" in Massachusetts
9
In January, 2015, the defendant filed the instant petition
in the county court pursuant to G. L. c. 211, § 3, seeking
extraordinary relief from what he characterized as the
unconstitutional and "otherwise unreviewable" orders of the
commissioner to mandate GPS monitoring of the defendant and to
forbid him from traveling out of State. On March 13, 2015, the
same day the defendant was found in violation of probation
conditions by a Connecticut judge, the single justice reserved
and reported the case, along with his four questions.
Discussion. 1. Interstate Compact for Adult Offender
Supervision. The compact regulates the interstate transfer of
supervision of those individuals on probation or parole due to
the commission of a criminal offense. Interstate Commission for
Adult Offender Supervision, ICAOS Rules, Rule 1.101, at 6
(effective Mar. 1, 2014) (ICAOS Rules),
http://www.interstatecompact.org/Portals/0/library/legal/ICAOS_R
ules.pdf [https://perma.cc/SM9H-NQBL]. (defining "[o]ffender"
subject to compact). The compact has been enacted by statute in
but the Connecticut Department of Corrections cut the GPS
bracelet off his ankle the previous day. Defense counsel sought
assurance that this removal of the GPS bracelet would not result
in a violation of probation. The judge asked if the
Massachusetts probation department would resume the GPS
monitoring upon the defendant's return to Massachusetts, and the
prosecutor told the judge that "[t]hey most certainly will" but
"the state is not seeking a violation on something that was cut
off him." There is nothing in the transcript to suggest that
the judge mandated GPS monitoring of the defendant.
10
all fifty States as well as the District of Columbia, Puerto
Rico, and the United States Virgin Islands. Interstate
Commission for Adult Offender Supervision, ICAOS Bench Book for
Judges and Court Personnel, at 40-41 (2014) (ICAOS Bench Book),
http://www.interstatecompact.org/Portals/0/library/publications/
Benchbook.pdf [https://perma.cc/3DFZ-RUEQ]. It was enacted in
Massachusetts in 2005. St. 2005, c. 121. The compact was
created to address weaknesses in the earlier Interstate Compact
for the Supervision of Parolees and Probationers, which was
drafted in 1937. ICAOS Bench Book, supra at 35, 38. The
compact created the Interstate Commission on Adult Offender
Supervision and empowered it to promulgate rules regulating the
transfer of offenders that have the force of statutory law in
all of the compacting States. ICAOS Bench Book, supra at 38,
43-44. See, e.g., G. L. c. 127, § 151E (b). The compact is the
exclusive means to transfer supervision from one State to
another for those offenders who are eligible under the compact.
ICAOS Rule 2.110(a), supra at 21.
The application of the rules of the compact can be
illustrated by considering the case of the defendant, who sought
to transfer probation supervision from Connecticut to
Massachusetts. Once an offender has been convicted and
sentenced to some form of supervision in Connecticut, transfer
of that supervision to Massachusetts must first be permitted by
11
Connecticut. ICAOS Rule 3.101, supra at 22. ICAOS Bench Book,
supra at 53. If approved, the offender must complete an
application, which Connecticut must transmit to Massachusetts.
ICAOS Rule 3.102, supra at 28. In certain situations, such as
where the offender is a resident of Massachusetts or where the
offender has means of support and family in the Commonwealth who
can assist in the offender's plan of supervision, acceptance of
the transfer by Massachusetts is mandatory; in other cases
acceptance is discretionary. ICAOS Rules 3.101, 3.101-2, supra
at 22, 26.
Where an offender transfers probation supervision from
Connecticut (the sending State) to Massachusetts (the receiving
State) pursuant to the compact, Connecticut must inform
Massachusetts of the special conditions that it has imposed at
the time of sentencing or during the period of probation. ICAOS
Rule 4.103(c), supra at 42 ("A sending state shall inform the
receiving state of any special conditions to which the offender
is subject at the time the request for transfer is made or at
any time thereafter"). Massachusetts must enforce those
conditions unless it is unable to do so, and if it is unable, it
must notify Connecticut of its inability to do so at the time
the request for transfer of supervision is made. ICAOS Rule
4.103(d), supra at 42. See ICAOS Bench Book, supra at 68
("Although a court may as a condition of probation impose a
12
special condition and require that the condition be met in the
receiving state, the receiving state can refuse to enforce the
special condition if the receiving state is unable to do so").
If Massachusetts were to inform Connecticut that it is unable to
enforce a special condition of probation, Connecticut has the
option of removing the problematic condition or withdrawing the
transfer request and requiring the offender to complete
supervision in Connecticut. ICAOS Bench Book, supra.
At the time Massachusetts accepts the probationer or during
the term of supervision, Massachusetts may add a special
condition, but only "if that special condition would have been
imposed on the offender if sentence had been imposed in the
receiving state." ICAOS Rule 4.103(a), supra at 42. Because
the compact authorizes Massachusetts (the receiving State) to
add only those conditions that "would have been imposed" if the
offender had been sentenced in Massachusetts, the probation
department in Massachusetts may add a special condition only
where a judge would have been required by law to impose that
special condition on the defendant at sentencing; it may not
impose a condition of probation that a sentencing judge simply
had the discretion to impose.10 If Massachusetts were to add a
10
We note that although the compact empowers the probation
department to impose special conditions on offenders who
transfer their supervision from another State, ICAOS Rule
4.103(b), supra at 42, the probation department does not have
13
special condition, it must notify Connecticut of the nature of
the special condition and its purpose. ICAOS Rule 4.103(b),
supra at 42. If Connecticut were to decide not to accept that
condition, it may exercise its authority to retake the
probationer, thereby revoking the transfer. See ICAOS Rule
5.101(a), supra at 55.
After a Connecticut probationer is transferred to
Massachusetts, the probationer must be supervised in a manner
"consistent with the supervision of other similar offenders
sentenced in [Massachusetts]." ICAOS Rule 4.101, supra at 40.
However, Connecticut retains jurisdiction over the probationer
and may "retake" him or her at any time for any reason.11 ICAOS
Rule 5.101(a), supra at 55. If the probationer were to commit a
significant violation of probation, Massachusetts would be
required to inform Connecticut of the violation but could not
institute proceedings to revoke the offender's probation. ICAOS
Rule 4.109, supra at 49. Only Connecticut could initiate
revocation proceedings, and such proceedings could only occur in
that power with offenders sentenced in Massachusetts, where,
unlike in Connecticut, conditions of probation must be ordered
by a judge. See A.L. v. Commonwealth, 402 Mass. 234, 242 (1988)
("it is the function of the sentencing judge to set the
conditions of probation," and it is duty of probation officer to
enforce conditions set by judge).
11
There is an exception to this rule whereby Massachusetts
could decline to return an offender who has pending criminal
charges in Massachusetts. ICAOS Rule 5.101-1, supra at 56.
14
Connecticut, subject only to a hearing in Massachusetts
establishing probable cause for the violation. ICAOS Bench
Book, supra at 76. ICAOS Rule 5.108, supra at 65. Of course,
if a defendant were to violate a probation condition by
committing a new crime in Massachusetts, the defendant may be
prosecuted for that crime in Massachusetts, but any probation
revocation must take place in Connecticut.12 ICAOS Bench Book,
supra.
With this background regarding the operation of the
compact, we turn now to the reported questions.
2. Question one. Question one asks "[w]hether the
Massachusetts courts are the appropriate forum for challenging
additional probation conditions imposed on a probationer
transferred to Massachusetts pursuant to [the compact]; and, if
so, what is the proper mechanism for mounting such a challenge."
This question is raised in the context of the commissioner's
somewhat confusing position regarding GPS monitoring of the
defendant. We characterize it as confusing because, after April
3, 2014, when the judge in Connecticut modified the defendant's
special condition of probation to provide that "GPS monitoring
will be at [the] discretion" of the Massachusetts probation
department -- suggesting that the probation department should
make an individualized determination whether the defendant
12
See note 11, supra.
15
should be subject to GPS monitoring -- the defendant's probation
officer informed defense counsel on April 23, 2014, that GPS
monitoring of the defendant would continue because it was
mandated by G. L. c. 265, § 47. The probation officer stated
that, even though the defendant was a juvenile, he had been
convicted as an adult in Connecticut, and all adult sex
offenders were required by § 47 to be monitored by GPS.
However, as earlier noted, when the commissioner on August 22,
2014, denied the defendant's request to be relieved of the
requirement of GPS monitoring, the commissioner gave
individualized reasons for continuing GPS monitoring, but stated
that, when the defendant reached the age of eighteen, GPS
monitoring would become mandatory under § 47. We need not dwell
on this confusion to determine whether the probation
department's reason for imposing GPS monitoring on the defendant
before he turned eighteen was the claimed statutory mandate of
§ 47 or an individualized determination, because the defendant
has turned eighteen and it is clear that the probation
department has determined that GPS monitoring of the defendant
is now mandated by § 47. The first question essentially asks
whether the Massachusetts courts are the appropriate forum to
challenge this determination. We conclude that they are.
As noted earlier, the Massachusetts probation department
under ICAOS Rule 4.103(a), supra at 42, may add a special
16
condition of probation only where that condition is mandated by
law in Massachusetts. Where a probationer contends that the
special condition added by Massachusetts is not mandated by
Massachusetts law or is unconstitutional, this determination is
appropriately made by a Massachusetts court. Allowing a
Massachusetts court to make this determination neither impairs
the jurisdiction of the sending State court nor undermines the
judgment or conditions of supervision imposed by the sentencing
court. If a Massachusetts court were to find that Massachusetts
has improperly added a special condition, Massachusetts
probation authorities would merely be precluded from imposing
the additional condition. Because the probation condition may
be added by Massachusetts only where it is mandated by
Massachusetts law, a Connecticut court could not eliminate the
condition of the transferred probationer by modifying the
defendant's probation conditions. Thus, the courts of the
sending State (here, Connecticut) are not the appropriate forum
to determine whether Massachusetts law truly mandates a
probation condition added by Massachusetts.
In contrast, if a probationer were to challenge whether a
probation condition that was imposed by the sending State was
prohibited by the statutory or constitutional law of the United
States or the sending State, the only appropriate forum to bring
such a claim would be a court in the sending State, because only
17
a court in the sending State could modify or eliminate a
condition imposed by the sending State.13
Having concluded that the defendant is entitled to
challenge in a Massachusetts court the probation department's
determination that GPS monitoring of the defendant is mandated
by § 47 once the defendant reaches the age of eighteen, we now
turn to that issue. As noted earlier, mandatory GPS monitoring
is in conflict with the special condition imposed by the judge,
which required the probation department in Massachusetts to
exercise its discretion in determining whether to subject the
defendant to GPS monitoring and implicitly required an
individualized evidence-based determination. Requiring GPS
13
If enforcement of a special condition imposed by the
sending State would be in violation of the Constitution or laws
of the receiving State, the receiving State should notify the
sending State under ICAOS Rule 4.103(d), supra at 42, that it
must refuse to enforce the special condition, and the sending
State would then have to decide whether to remove the special
condition or withdraw the transfer request. Interstate
Commission for Adult Offender Supervision, ICAOS Bench Book for
Judges and Court Personnel, at 68 (2014),
http://www.interstatecompact.org/Portals/0/library/publications/
Benchbook.pdf [https://perma.cc/3DFZ-RUEQ]. If a probationer
were to claim that the receiving State erred in enforcing an
illegal special condition, a court in the sending State would be
the most appropriate forum to challenge the lawfulness of the
special condition, because a judge of that court could obviate
the need to determine whether the special condition violated the
Constitution or laws of the receiving State by modifying or
eliminating the special condition. A judge in the receiving
State could not modify or eliminate the special condition; the
judge could only order that the receiving State probation
department not enforce the special condition if the judge were
to find it in violation of the Constitution or laws of the
receiving State.
18
monitoring for the duration of supervision without giving a
probation official the discretion, where appropriate, to
discontinue such monitoring constitutes a more restrictive
condition of supervision that must be considered an additional
condition imposed by Massachusetts under the compact. See
Interstate Commission for Adult Offender Supervision, Advisory
Opinion 1-2015, at 3 (Feb. 12, 2015),
http://www.interstatecompact.org/Portals/0/library/legal/advisor
yopinions/AdvisoryOpinion_1-2015_NC.pdf [https://perma.cc/SZ9Q-
7XRM] (North Carolina statute allowing probationers who violate
conditions of probation to be confined for up to three days in
lieu of revocation proceedings constitutes additional condition
imposed by North Carolina when applied to out-of-State offenders
transferred to North Carolina under compact). This additional
condition of mandatory GPS monitoring is permissible under the
compact only if Massachusetts law, specifically § 47, requires
that it be imposed on the defendant.
The commissioner contends that § 47 requires GPS monitoring
for "[a]ny person who is placed on probation for any . . . 'sex
offense,'" and that the defendant is subject to that statutory
requirement once he becomes eighteen because, even though he
committed the sex offense when he was fourteen years old, he was
convicted in Connecticut of a sex offense as an adult.
19
Certainly, if the defendant were an adult when he committed
the Connecticut sex offense, GPS monitoring would be required
under § 47, because he was placed on probation for a "sex
offense," as defined in G. L. c. 6, § 178C, which includes an
indecent assault and battery on a child under the age of
fourteen, in violation of G. L. c. 265, § 13B, "or a like
violation of the laws of another state." The defendant's
conviction in Connecticut of sexual assault in the third degree,
in violation of Conn. Gen. Stat. § 53a-72a(a) (2015), is a "like
violation" of the Massachusetts crime of indecent assault and
battery.14
The defendant, although convicted as an adult, was not an
adult when he committed these sexual offenses; he was fourteen
14
Conn. Gen. Stat. § 53a-72a(a) (2015) provides in relevant
part:
"A person is guilty of sexual assault in the third degree
when such person (1) compels another person to submit to
sexual contact (A) by the use of force against such other
person or a third person, or (B) by the threat of use of
force against such other person or against a third person,
which reasonably causes such other person to fear physical
injury to himself or herself or a third person . . . ."
At the plea hearing, the prosecutor told the judge that the
defendant, when he was fourteen years old, touched a six year
girl who was "a closely related family member . . . in a sexual
manner, . . . holding her hip . . . [and] thrusting his hip and
grinding into her, . . . French kissing her by putting his
tongue in her mouth, also touching her in her genital area
. . . . [T]he child asked him to stop [but] he continued with
the activity. And the child did have a bruise on her arm
afterwards."
20
years old. Because of his age, if these crimes had been
committed in Massachusetts, the Commonwealth could not have
initiated a criminal proceeding against the defendant as an
adult; it could only have proceeded against him as a juvenile.
See G. L. c. 119, § 74. Therefore, if these crimes had been
committed in Massachusetts, the defendant, at worst, would have
been adjudicated delinquent in the Juvenile Court.15 See id. If
he were adjudicated delinquent and sentenced to probation, he
would not be subject to mandatory GPS monitoring pursuant to
§ 47. See Commonwealth v. Hanson H., 464 Mass. 807, 816 (2013)
("mandatory GPS monitoring pursuant to § 47 does not apply to
juveniles who have been adjudicated delinquent"). Therefore, if
the defendant had committed these crimes in Massachusetts, a
Juvenile Court judge in the exercise of discretion could order
15
The Commonwealth could not have proceeded against the
defendant as a youthful offender, because he had not previously
had any involvement with the juvenile justice system that would
have resulted in him being committed to the Department of Youth
Services, did not commit a crime involving possession of a
firearm, and did not commit an offense that "involves the
infliction or threat of serious bodily harm in violation of
law." See G. L. c. 119, § 52 (defining "[y]outhful offender").
In Commonwealth v. Quincy Q., 434 Mass. 859, 861 (2001), the
juvenile, when he was between fifteen and sixteen years old and
the victim was between three and five years of age, touched the
victim's vagina on approximately ten occasions and caused the
victim to touch his penis. We concluded that this conduct did
not "involve the infliction or threat of serious bodily harm"
where, as here, there was no evidence of sexual penetration, and
"no evidence that the defendant overtly threatened [the
complainant] or that serious bodily injuries were actually
inflicted." Id. at 863-864.
 21
GPS monitoring as a condition of his probation, but that
condition would not be mandated by law. See id. at 816-817.
Nor, where the crime was committed by a juvenile, would GPS
monitoring become a mandatory condition of probation once the
juvenile reached the age of eighteen. Where a judge at
sentencing did not order GPS monitoring as a special condition
of a juvenile's probation, a judge in the exercise of discretion
could add this special condition if (and only if) a probationer
were found in violation of the conditions of probation.
Commonwealth v. Goodwin, 458 Mass. 11, 22-23 (2010). But the
judge could not add this punitive special condition without a
probation violation simply because the offender turned eighteen,
and § 47 cannot reasonably be interpreted to mandate that
result.
Under ICAOS Rule 4.103(a), supra at 42, Massachusetts, as
the receiving State, could add GPS monitoring as a special
condition of probation only "if that special condition would
have been imposed on the offender if sentence had been imposed
in the receiving state." Because that special condition would
not necessarily have been imposed in Massachusetts had the
defendant been sentenced in Massachusetts for the crimes he
committed when he was fourteen years old, the Massachusetts
probation department is prohibited from imposing GPS monitoring
as a mandatory condition of probation. Rather, as required by
22
the judge's order on April 3, 2014, GPS monitoring may be
ordered only at the discretion of the Massachusetts probation
department, based on an individualized determination. We
therefore remand this matter to the single justice, who shall
direct the commissioner to make an individualized determination
in the exercise of his discretion whether to subject the
defendant to GPS monitoring.
Having answered the reported question and resolved the
underlying issue, we now turn to the second part of that
question: "what is the proper mechanism for mounting such a
challenge?" We conclude that the proper mechanism is a
complaint for declaratory judgment. A declaratory judgment
action filed pursuant to G. L. c. 231A and Mass. R. Civ. P. 57,
365 Mass. 826 (1974), will allow a court to determine whether an
additional special condition is mandated by Massachusetts law
and whether such a condition is constitutional. In the future,
an offender supervised in Massachusetts pursuant to the compact
should utilize that procedure to adjudicate his or her
challenge; the existence of this alternative procedure
forecloses extraordinary relief from this court. See Hicks v.
Commissioner of Correction, 425 Mass. 1014, 1014-1015 (1997).
We addressed the substantive claims raised by the defendant in
this case under G. L. c. 211, § 3, because the proper procedure
had not been clearly established and the single justice reserved
23
and reported the case to this Court. See Goodwin, 458 Mass. at
14-15, quoting Martin v. Commonwealth, 451 Mass. 113, 119 (2008)
("[w]here the single justice has, in [her] discretion, reserved
and reported the case to the full court, we grant full appellate
review of the issues reported").
3. Questions two and three. Questions two and three ask
whether a transferee probationer is entitled to actual notice of
mandatory GPS monitoring pursuant to § 47 from the sentencing
judge, and whether mandatory GPS monitoring for crimes committed
as a minor constitutes cruel and unusual punishment, where the
minor was convicted as an adult in another jurisdiction.
Because we have concluded that the defendant is not subject to
mandatory GPS monitoring in Massachusetts under the compact,
these questions are moot, and we decline to answer them.
4. Question four. The fourth question asks "[w]hether the
[commissioner's] Policy on the Issuance of Travel Permits
[(travel policy)] is ultra vires; and, if not, whether the
application of that policy to the petitioner violated his right
to interstate travel." We examine this question in the context
of the circumstances of this case. As earlier noted, at
sentencing, the judge authorized the Connecticut probation
department to add any other conditions it deemed appropriate.
It is a general condition of probation in Connecticut that a
probationer may not leave the State without permission from a
24
probation officer.16 When probation was transferred to
Massachusetts, the defendant remained subject to this probation
condition that he not leave the State without his probation
officer's permission.
Under ICAOS Rule 4.101, supra at 40, a receiving State
(here, Massachusetts) "shall supervise an offender transferred
under the [compact] in a manner . . . consistent with the
supervision of other similar offenders sentenced in the
receiving state." Therefore, with respect to granting
permission for interstate travel, the Massachusetts probation
department must treat a transferred probationer as it would a
probationer sentenced in Massachusetts. The commissioner has
given effect to that condition by applying a policy that
regulates the exercise of discretion to grant travel permits.
The travel policy issued on January 11, 2012, by the then acting
commissioner treats all probationers who are under supervision
for sex offenses and all probationers with a special condition
of GPS monitoring the same, whether transferred or not: the
probation department shall not authorize the issuance of travel
16
A substantially identical provision is a general
condition of probation in Massachusetts. See commentary to Rule
4, District/Municipal Courts Rules for Probation Violation
Proceedings, Mass. Ann. Laws Court Rules, at 86 (LexisNexis
2015) (identifying failure to "obtain permission to leave the
Commonwealth" as violation of general probation conditions).
25
permits to them.17 The only way they can obtain a travel permit
is to request their sentencing judge or, where that judge is
unavailable, another judge in that trial court department, to
order the issuance of a travel permit. For a transferred
probationer, that means filing a motion to modify the conditions
of probation in the defendant's criminal case in the sending
State. The defendant sought such relief when he moved to modify
the conditions of his probation, but that part of the request
was not granted by the judge in his order of April 3, 2014.
Nothing bars the defendant from again seeking such relief in
Connecticut, which retains jurisdiction over the defendant.
Such relief may not be sought in Massachusetts.
The defendant contends that the commissioner, by issuing a
policy that prohibits certain categories of probationers from
being issued a travel permit by a probation officer, has imposed
an additional special condition forbidding interstate travel
that is not mandated by law and, therefore, is ultra vires. We
disagree for two reasons. First, the general condition of
probation imposed on the defendant in Connecticut provided that
he could not "leave the State of Connecticut without permission
17
In his letter to the defendant, the commissioner
articulated the reasons for not granting travel permits to
probationers who are being supervised for sex offenses,
including the difficulty of monitoring the probationer while out
of State, of verifying the address where the offender will be
staying, and of ensuring that the probationer will not encounter
minors.
26
from the Probation Officer." This condition does not appear to
prohibit a probation department from issuing a travel policy
governing the grant or denial of permission for out-of-State
travel. Thus, the application of the policy in Massachusetts is
not inconsistent with the condition imposed in Connecticut.
Second, in the letter from the commissioner to the defendant,
the commissioner stated that he "remain[ed] unconvinced that
[the defendant] presents a viable justification to make an
exception to the [t]ravel [p]olicy in [the defendant's] case,"
which indicates that the commissioner retained the discretion to
make an exception from his travel policy where the circumstances
warranted.18
The defendant further argues that the travel restriction
applied by the Massachusetts probation department violates his
right to interstate travel.19 Where the travel restriction was
imposed as a condition of probation by the sending State (here,
Connecticut) and was not an additional condition imposed by the
18
Also, it is significant that the defendant has recourse
to the sentencing judge in Connecticut, who can modify the
conditions of probation if the judge believes the application of
the travel policy to be unnecessarily restrictive.
19
Although the defendant cites arts. 1, 10, and 12 of the
Massachusetts Declaration of Rights in addition to the
Fourteenth Amendment to the United States Constitution in
support of his argument that the travel restriction is
unconstitutional, he does not argue that his right of interstate
travel under the Massachusetts Constitution is broader than his
rights under the United States Constitution.
27
receiving State, we conclude that the appropriate forum for such
a constitutional claim is Connecticut, where it may be combined
with the defendant's nonconstitutional claims for modification
of this probation condition, and where the court, in its
discretion, may avoid the constitutional question by modifying
the condition. Therefore, we decline to answer the fourth
reported question; the appropriate forum to answer this question
is a court in the sending State, Connecticut.
Conclusion. In summary, we conclude that probationers
whose supervision is transferred to Massachusetts pursuant to
the compact may challenge a special condition of probation that
was added by Massachusetts through a declaratory judgment action
in a Massachusetts court, where they may claim that the
additional special condition is not mandated by law or is
unconstitutional. We also conclude that the Massachusetts
probation department may not add mandatory GPS monitoring as a
special condition of probation for this probationer because it
is not required by G. L. c. 265, § 47. Finally, we conclude
that the travel restriction applied by the Massachusetts
probation department to the defendant was not an additional
condition of probation, and that the appropriate forum to
challenge the constitutionality of the application of that
condition is a Connecticut court, where it may be combined with
the defendant's nonconstitutional claims for modification of
28
this probation condition. We remand this matter to the single
justice for further proceedings consistent with this opinion.
So ordered.