Commonwealth v. Newberry ( 2019 )

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SJC-12575
COMMONWEALTH vs. DENEISHA D. NEWBERRY.
Suffolk. February 5, 2019. - September 18, 2019.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
District Court, Pretrial diversion, Arraignment. Practice,
Criminal, Arraignment.
Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on July 9, 2018.
The case was reported by Lowy, J.
John P. Zanini, Assistant District Attorney (Cailin M.
Campbell, Assistant District Attorney, also present) for the
Commonwealth.
Sarah M. Joss, Special Assistant Attorney General
(Nickeisha J. Davidson also present) for Massachusetts Probation
Service.
Maureen Stanton Flaherty for the respondent.
Dana Alan Curhan, for Committee for Public Counsel Services
& another, amici curiae, submitted a brief.
LENK, J. The pretrial diversion statute, G. L. c. 276A,
allows certain first-time offenders, who are charged with
specified offenses in the District Court or the Boston Municipal
2
Court, to seek pretrial diversion to a treatment program rather
than proceed on the trial track. If, after screening, the
probation service determines that the individual is eligible for
pretrial diversion, and the program to which the probation
service refers the individual for assessment determines that the
person would benefit from participation in the program, a judge
has discretion to stay or continue the criminal proceedings and
assign the individual to a diversion program. See G. L.
c. 276A, §§ 2, 3, 5. If the person successfully completes the
program, the judge may dismiss the criminal charges. G. L.
c. 276A, §§ 5, 7.
In this matter, we consider two issues arising under the
pretrial diversion statute. First, whether the pretrial
diversion statute, G. L. c. 276A, § 3, requires, at the
Commonwealth's request, that a judge arraign a defendant before
he or she may take advantage of a pretrial diversion program.
Second, whether, during the statutory screening period, see
G. L. c. 276A, § 3, or thereafter if the Commonwealth does not
seek arraignment, a judge has authority to order conditions of
release, including global position system (GPS) monitoring or
drug screening by the probation service.
As to the first question, we conclude that, under G. L.
c. 276A, § 3, a judge may not decline to arraign an adult
defendant, over the Commonwealth's objection, and instead direct
3
the defendant to a pretrial diversion program. Although other
pretrial diversion programs statutorily mandate that a judge may
not arraign an eligible defendant before that defendant has an
opportunity to complete a pretrial diversion program, the
language of G. L. c. 276A, § 3, requires arraignment, at the
Commonwealth's request, before a defendant can participate in a
pretrial diversion program. Compare G. L. c. 12, § 34, G. L.
c. 119, § 54A, and G. L. c. 276B, § 2, with G. L. c. 276A, § 3.
As to the second question, we conclude that, whether during
the screening period prior to arraignment, see G. L. c. 276A,
§ 3, or thereafter if the Commonwealth does not seek
arraignment, a judge may order conditions of release. In
ordering those conditions, should a judge determine that
supervision by the probation service is necessary, the judge has
authority to order those services.
Background. The essential facts are undisputed. In
November 2017, the defendant was charged in the Boston Municipal
Court with assault and battery, G. L. c. 265, § 13A (a), after
an alleged altercation with her boyfriend's former girlfriend.
At her initial appearance before a judge of that court, the
defendant moved to continue her arraignment so that she could be
assessed for eligibility for pretrial diversion. Over the
Commonwealth's objection, the judge continued the arraignment
for two weeks. The judge also ordered, as a condition of
4
release, that the defendant stay away from the alleged victim;
the Commonwealth did not object to the condition. At the next
hearing, the judge determined that the defendant was eligible
for pretrial diversion and continued the case for about ninety
days, pursuant to G. L. c. 276A, § 5. The Commonwealth did not
object to the defendant's placement in a pretrial diversion
program, but again objected to the lack of arraignment.
Thereafter, the matter was continued a number of times, for
reasons, such as court scheduling, that are unrelated to the
issues before us. Arguing that the victim had accused the
defendant of two instances of harassment after pretrial
diversion had begun, the Commonwealth sought at several of those
hearings, before different judges, to have the defendant removed
from pretrial diversion and the case returned to the trial list.
The Commonwealth also moved to arraign the defendant. The
defendant requested that GPS monitoring be imposed, in order to
allow her to prove that she had not been in contact with the
victim. The Commonwealth did not oppose the imposition of GPS
monitoring, and a judge allowed the request. That judge also
scheduled an evidentiary hearing to determine whether the
defendant indeed had been in contact with the alleged victim, in
violation of the terms of her pretrial diversion; the judge
5
commented that he would not arraign the defendant until he heard
from the victim.1
The probation service thereafter appeared ex parte before
the judge, arguing that it had no authority to conduct GPS
monitoring of the defendant, because she had not been arraigned;
the judge again ordered that GPS be imposed. While the
evidentiary hearing was pending, the Commonwealth filed a
petition for extraordinary relief, pursuant to G. L. c. 211,
§ 3, in the county court. The single justice reserved and
reported the matter to the full court.
Discussion. 1. Statutory framework. The pretrial
diversion statute, G. L. c. 276A, provides judges of the
District Court and the Boston Municipal Court Departments
authority to divert eligible individuals to a program of
1 The posture of this case is somewhat sui generis. At the
time of the offense, the defendant was twenty-eight years old
and apparently not eligible for pretrial diversion under the
then-existing version of the statute, which was intended for
youthful offenders. Nonetheless, the judge had discretion to
refer the defendant for assessment by the probation service,
even if she appeared preliminarily to be ineligible. See G. L.
c. 276A, § 3. The Commonwealth did not raise any objection to
the defendant being placed in a pretrial diversion program; it
objected only to the lack of arraignment at any point in the
proceedings. By the time the defendant had been evaluated and
determined to be eligible to participate in a specific program,
the pretrial diversion statute had changed to include first-time
adult offenders. See St. 2018, c. 69, § 197. The parties'
briefs address the statute as it is now in effect, and do not
mention any question of ineligibility due to the defendant's age
at the time of the alleged offense.
6
community supervision and services rather than subject them to
the criminal trial process. See G. L. c. 276A, § 2. The
statute "originally was intended to provide rehabilitation to
those whose criminal habits had not become 'fixed'" (citation
omitted). See Commonwealth v. Morgan, 476 Mass. 768, 779
(2017). When it was first enacted in 1974, the statute applied
only to young adults between the ages of eighteen and twenty-
two; in 2012, it was amended to include veterans and active duty
members of the military. See G. L. c. 276A, §§ 10, 11;
St. 2012, c. 108, § 16.
In 2018, as part of the comprehensive criminal justice
reform act, the Legislature again amended the statute, this time
to eliminate any age restrictions, making it applicable to all
first-time offenders who are charged with offenses for which a
term of imprisonment may be imposed by a judge of the District
Court or the Boston Municipal Court, and who meet other
eligibility criteria.2 See G. L. c. 276A, § 2, as amended
2 The pretrial diversion statute in its current form
includes ten sections. See St. 2018, c. 69, §§ 200, 201.
General Laws c. 276A, § 1, contains applicable definitions.
Section 2 describes the jurisdiction of the court to divert
offenders for certain offenses that may be punished by a term of
incarceration of no more than five years. Section 3 defines the
screening procedures for admission to a diversion program.
Section 4 describes those defendants who are categorically
ineligible for diversion, including those charged with violent
crimes against the person, crimes by public officials, and
certain sex offenses. Section 5 defines the required assessment
and recommendation for pretrial diversion, to be provided to the
7
through St. 2018, c. 69, § 197.3 Also as part of the criminal
justice reform act, see St. 2018, c. 69, the Legislature adopted
separate provisions establishing juvenile pretrial diversion
(G. L. c. 119, § 54A, inserted by St. 2018, c. 69, § 75);
pretrial diversion for those with mental health and substance
abuse issues (G. L. c. 12, § 34, inserted by St. 2018, c. 69,
§ 16); and community-based restorative justice diversion
programs, with the consent of the district attorney and the
victims (G. L. c. 276B, § 2, inserted by St. 2018, c. 69,
§ 202).
judge at the conclusion of the assessment period, and the final
determination and stay of proceedings if the judge, in his or
her sole discretion, after having received a recommendation from
the prosecutor, determines that diversion would be appropriate.
Section 6 provides procedures for handling violations of the
terms of a program. Section 7 covers the process for dismissing
charges following the successful completion of a program.
Sections 10 and 11 concern diversions and continuances for
veterans and active duty military personnel. Section 12
instructs that police officers and prosecutors have authority to
divert an offender into a program that they operate.
3 Under G. L. c. 276A, § 2, a defendant is eligible for
pretrial diversion if he or she is charged with an offense for
which a term of imprisonment may be imposed by a judge of the
District Court or Boston Municipal Court; has not previously
been convicted of a violation of any law, in the Commonwealth or
elsewhere; does not have any outstanding warrants, continuances,
appeals, or criminal cases pending; and would benefit from
participation in a program.
8
General Laws c. 276A, § 3, is the sole applicable section
of the pretrial diversion statute that mentions "arraignment."4
It defines the procedures to be used in determining whether a
defendant is eligible and would benefit from a pretrial
diversion program:
"The probation officers of a district or municipal court,
or an official designee of such a probation officer, when
gathering information in accordance with [G. L. c. 276,
§ 85], shall also screen each defendant for the purpose of
enabling the judge at arraignment to consider the
eligibility of the defendant for diversion to a program.
The probation officers or an official designee shall also
confirm the defendant's status as a veteran or as a person
on active service in the armed forces of the United States
and shall determine if the defendant has previously been
diverted pursuant to clause (ii) of [§ 4 (c)].
"Any defendant who is qualified for consideration for
diversion to a program may, at his arraignment, be afforded
a fourteen-day continuance for assessment by the personnel
of a program to determine if he would benefit from such
program.
"A defendant who is determined to be a veteran or a person
on active service in the armed forces of the United States
and who is qualified for consideration to diversion to a
program may, at arraignment, be afforded a [thirty]-day
continuance for assessment by the United States Department
of Veteran's Affairs or another state or federal agency
with suitable knowledge and experience of veterans affairs
to determine if the veteran or person on active service
would benefit from such program.
4 General Laws c. 276A, § 10, which also mentions
arraignment, applies only to veterans and active duty service
members whose status must be verified by the probation service,
at or prior to arraignment, in order to be eligible for pretrial
diversion. The statute allows a thirty-day assessment period
during which the probation service must verify the individual's
status. See G. L. c. 276, §§ 3, 10.
9
"If a defendant chooses to accept the offer of a
continuance for the purpose of such an assessment, he shall
so notify the judge at arraignment. Upon receipt of such
notification, the judge shall grant a fourteen-day
continuance. The judge, through the probation office or
its official designee, shall direct the defendant to a
program and shall inform said program of such action.
"The judge may, in his discretion, grant a defendant who is
preliminarily determined not to be eligible because of a
failure to satisfy all the requirements of section two, a
like fourteen-day continuance for assessment. In arriving
at such a decision the opinion of the prosecution should be
taken into consideration. Such a continuance may be
granted upon the judge's own initiative or upon request by
the defendant." (Emphases added.)
Thus, a possibly qualified defendant "may, at his [or her]
arraignment, be afforded a fourteen-day continuance" for
assessment to determine whether he or she would benefit from
participation in a particular program (emphasis added). See
G. L. c. 276A, § 3. If a defendant qualifies for a program and
consents to participate in it, his or her "criminal
proceedings . . . shall be stayed for a period of ninety days"
so that the defendant can complete the program.5 G. L. c. 276A,
§ 5. Upon successful completion of an assigned program, a judge
may "dismiss the original charges pending against the
A stay may be granted only if a defendant "consents in
5
writing to the terms and conditions of the stay of proceedings
and knowingly executes a waiver of his [or her] right to a
speedy trial." G. L. c. 276A, § 5.
10
defendant," resulting in no criminal conviction on the
defendant's record.6 See G. L. c. 276A, § 7.
2. Statutory construction. We consider first whether the
pretrial diversion statute requires that, on the Commonwealth's
motion, a judge arraign a defendant before he or she may take
advantage of a pretrial diversion program. In the
Commonwealth's view, requiring arraignment on the prosecutor's
request is consistent with the statutory purpose; it ensures
that pretrial diversion is available only to those adults who
have no prior involvement in the criminal justice system,
information that generally becomes available at arraignment.7
The defendant argues that arraignment before diversion is
inconsistent with the statutory purpose of allowing certain
first-time offenders to avoid the considerable negative
consequences that follow from having a criminal record. She
argues that even a dismissed charge can result in difficulties
6 If a defendant has not successfully completed a pretrial
diversion program after an initial ninety-day period, the
proceedings may be stayed or continued for an additional ninety
days, to enable the defendant to do so. See G. L. c. 276A, § 7.
7 The Commonwealth argues also that the judge's decision not
to arraign the defendant in this case constituted a violation of
the separation of powers, as set forth in art. 30 of the
Massachusetts Declaration of Rights. Given our result, we need
not reach this argument. Cf. Commonwealth v. Jones, 471 Mass.
138, 143 (2015) (statutes are to be construed "where fairly
possible so as to avoid constitutional questions" [citation
omitted]).
11
in education, housing, and employment. The defendant maintains
that diverting offenders prior to arraignment is the best way to
ensure, as the Legislature intended, that a first-time offender
does not face these significant collateral consequences. See
Commonwealth v. Humberto H., 466 Mass. 562, 574-575 (2013).
As with all matters of statutory construction, our goal in
construing the pretrial diversion statute is to ascertain and
effectuate the intent of the Legislature. See Commonwealth v.
Curran, 478 Mass. 630, 633 (2018). "[C]onsistent with our
general practice of statutory interpretation, we look first to
the language of the statute because it is 'the principal source
of insight' into the intent of the Legislature." Sisson v.
Lhowe, 460 Mass. 705, 708 (2011). See Morgan, 476 Mass. at 777,
citing Commonwealth v. Peterson, 476 Mass. 163, 167 (2017) ("The
plain language of the statute, read as a whole, provides the
primary insight into that intent"). Where the plain language is
unclear or ambiguous, we strive to discern the legislative
intent in enacting a statute "from all its parts and from the
subject matter to which it relates, and must interpret the
statute so as to render the legislation effective, consonant
with sound reason and common sense." See Seideman v. Newton,
452 Mass. 472, 477 (2008).
3. Meaning of "at arraignment" in G. L. c. 276A, § 3.
General Laws c. 276A, § 3, requires that the probation service
12
screen "each" defendant "for the purpose of enabling the judge
at arraignment to consider the eligibility of the defendant for
diversion to a program" (emphasis added). "Any defendant who is
qualified for consideration for diversion to a program may, at
his [or her] arraignment, be afforded a fourteen-day continuance
for assessment by the personnel of a program to determine if he
[or she] would benefit from such program" (emphasis added). Id.
If a defendant chooses to be assessed for a pretrial diversion
program, that defendant "shall so notify the judge at
arraignment" (emphasis added). Id.
Starting from this plain language, and considering the
words in their "ordinary and approved usage" (citation omitted),
see Ciani v. MacGrath, 481 Mass. 174, 178 (2019), we understand
the term "at arraignment" in the pretrial diversion statute to
mean that the pretrial diversion process begins when a defendant
is called to answer the charges against him or her for the first
time, that is, at the time and place of arraignment.
Although the statute has been amended a number of times
since it was first enacted in 1974, the phrase "at arraignment"
in this section of the statute has remained unchanged. Indeed,
in 2018, in conjunction with the removal of any age restriction,
and the addition of the three new pretrial diversion programs
established by the criminal justice reform act, a fourth
occurrence of the phrase "at arraignment" was added to § 3. See
13
G. L. c. 276A, § 3, as amended by St. 2018, c. 218, §§ 33, 34;
St. 2018, c. 69, §§ 196-201. Thus, in contrast to all the new
pretrial diversion programs, when the Legislature expanded the
statute so that it was applicable to all adults, the Legislature
continued to use the language that had been in place for youths
since 1974, which required the pretrial diversion process to
begin "at arraignment."
At the same time, the language the Legislature used for the
new diversion programs was quite different. The restorative
justice program, for instance, provides that a "juvenile or
adult defendant may be diverted to a community-based restorative
justice program pre-arraignment or at any stage of a case with
the consent of the district attorney and the victim.
Restorative justice may be a final case disposition, with
judicial approval.[8] If a juvenile or adult defendant
successfully completes the community-based restorative justice
program, the charge shall be dismissed."9 (Emphasis added.) See
G. L. c. 276B, § 2.
8 Pretrial diversion under a restorative justice program
differs from all other pretrial diversion programs in that it
requires the consent of the prosecutor and the victim. See
G. L. c. 276B, § 2.
9 The language used to begin a diversion program for a
person charged with a drug crime who suffers from drug abuse
also differs significantly from the "at arraignment" language of
G. L. c. 276A, § 3. "Any defendant who is charged with a drug
offense shall, upon being brought before the court on such
14
The Legislature adopted similar prearraignment provisions
for veterans, those with substance abuse issues, and those with
mental health problems. For those individuals, the criminal
justice reform act mandates that each district attorney
"establish a pre-arraignment diversion program which may be used
to divert a veteran or person who is in active service in the
armed forces, a person with a substance use disorder or a person
with mental illness if such veteran or person is charged with an
offense or offenses against the commonwealth" (emphasis added).10
See G. L. c. 12, § 34, inserted by St. 2018, c. 69, § 16. This
section expands upon a pretrial diversion program for veterans
charge, be informed that he is entitled to request an
examination to determine whether or not he is a drug dependent
person who would benefit by treatment, and that if he chooses to
exercise such right he must do so in writing within five days of
being so informed. . . . If the defendant requests assignment
and if the court determines that he is a drug dependent person
who would benefit from treatment the court may stay the court
proceedings and assign him to a drug treatment facility. An
order assigning a person under this section shall specify the
period of assignment, which shall not exceed eighteen months or
the period of time equal to the maximum sentence he could have
received had he been found guilty of every count alleged in the
complaint or indictment, whichever is shorter" (emphasis added).
G. L. c. 111E, § 10. If an individual successfully completes a
drug treatment program, a judge "shall" dismiss the charges
(emphasis added). Id.
10For all these programs, the rationale of treatment is to
remove the cause of further offending by treating the addiction,
mental illness, or posttraumatic stress disorder that is
resulting in the offender's commission of the offenses. Thus,
treatment benefits both the individual and the public. See
G. L. c. 276A, § 1.
15
and military service members that the Legislature enacted in
2012. See G. L. c. 276A, §§ 10, 11. At that point, in a
provision unchanged with the more recent modifications, the
Legislature required the probation service to determine an
individual's status as a veteran "at or prior to arraignment."
Compare G. L. c. 276A, § 10, inserted by St. 2012, c. 108, § 16,
with G. L. c. 276A, § 3.
Likewise, for juveniles, the criminal justice reform act
created a new diversion program that explicitly requires
prearraignment diversion. "A child complained of as a
delinquent child may, upon the request of the child, undergo an
assessment prior to arraignment to enable the judge to consider
the suitability of the child for diversion. If a child chooses
to request a continuance for the purpose of such an assessment,
the child shall notify the judge prior to arraignment. . . . If
a case is continued pursuant to this subsection, the child shall
not be arraigned and an entry shall not be made into the
criminal offender record information system until a judge issues
an order to resume the ordinary processing of a delinquency
proceeding. A judge may order diversion without first ordering
an assessment in any case in which the court finds that
sufficient information is available without an assessment."
16
(Emphasis added.)11 See G. L. c. 119, § 54A (b), inserted by
St. 2018, 69, § 75.
Thus, clearly, had the Legislature wished pretrial
diversion for ordinary adult offenders to begin "prior" to
arraignment, it could have used similar language; it chose not
to do so. See Commonwealth v. Dayton, 477 Mass. 224, 228 (2017)
("where the Legislature used specific language in one part of an
enactment . . . , but not in another . . . , the language should
not be implied where it is not present"). Instead, the
Legislature used different phrases to indicate when pretrial
diversion is to begin for ordinary adult offenders and all other
categories of offenders who are eligible for any form of
pretrial diversion. This evinced an evident legislative intent
that, if the Commonwealth seeks arraignment, an arraignment must
take place before an adult defendant may be referred to a
pretrial diversion program. See Sharris v. Commonwealth, 480
11 The rationale underlying this dissimilar treatment of
adults and juveniles likely arises from a belief that "younger
offenders are more susceptible to rehabilitation than older
offenders." See Zablotsky, An Analysis of State Pretrial
Diversion Statutes, 15 Colum. J. L. & Soc. Probs. 1, 30 (1979).
The Legislature and the courts often treat juvenile offenders
differently from adult offenders, in recognition of the fact
that the juvenile justice system "is primarily rehabilitative,
cognizant of the inherent differences between juvenile and adult
offenders, and geared toward the correction and redemption to
society of delinquent children" (quotation and citation
omitted). See Commonwealth v. Humberto H., 466 Mass. 562, 574
(2013).
17
Mass. 586, 594 (2018) (where language of statute is plain, it
ordinarily is "conclusive as to legislative intent" [citation
omitted]).
Whatever the Legislature's reasoning in treating ordinary
adult offenders differently, we may not rewrite the pretrial
diversion statute to contain language the Legislature did not
see fit to include. Cf. Sisson, 460 Mass. at 720 (Spina, J.,
dissenting) ("The Legislature knows how to write exceptions,"
and where "it has expressed its intent as to only one
exception," we do not add to it). Courts may not read into a
statute a provision that the Legislature did not enact, nor "add
words that the Legislature had an option to, but chose not to
include," see Commissioner of Correction v. Superior Court Dep't
of the Trial Court, 446 Mass. 123, 126 (2006). Accordingly, we
conclude that the Legislature intended that participation in
pretrial diversion for adult defendants begins "at arraignment,"
if the Commonwealth moves to arraign a defendant.
We recognize that there is some tension between the
statutory language and the apparent purpose underlying pretrial
diversion. Although the legislative history for the adult
pretrial diversion statute is scant, we understand that its
purpose, as with pretrial diversion for juveniles, is to provide
rehabilitative programming so that individuals can address the
underlying conditions that lead to their criminal behavior.
18
Treating the cause of the behavior is intended to reduce
recidivism, increase public safety, and allow the individual to
participate as a productive member of society, without incurring
the serious collateral consequences (and concomitant difficulty
in productive participation) that may arise from a criminal
record. See generally Morgan, 476 Mass. at 779-780; Zablotsky,
An Analysis of State Pretrial Diversion Statutes, 15 Colum. J.
L. & Soc. Probs. 1, 8 (1979); Note, Pretrial Diversion from the
Criminal Process, 83 Yale L.J. 827, 827 & nn.1, 2 (1974).
Nonetheless, "this purpose should not be used as a means of
disregarding the considered judgment of the Legislature" in
crafting statutory language that anticipated a formal
arraignment at the Commonwealth's request. See Globe Newspaper
Co. v. Boston Retirement Bd., 388 Mass. 427, 436 (1983).12
The pretrial diversion statute, as adopted, does provide
significant opportunities for a defendant who successfully
12In this case, the record indicates several reasons why
the judges were reluctant to pursue an arraignment. It is
apparent that the judge who ordered the evidentiary hearing had
serious doubts as to the victim's credibility, for
understandable reasons. On this record, the defendant had
obtained a restraining order against the victim, had changed her
telephone number, and had moved to another city, after the
victim appeared at the defendant's house and allegedly engaged
in repeated acts of harassment. Indeed, at one of the hearings
in this case, the victim was present in court on an unrelated
criminal case and apparently attacked the defendant.
Nonetheless, it is the Commonwealth's prerogative to decide
whether to pursue an arraignment. See G. L. c. 276, § 58.
19
completes a pretrial diversion program to avoid the more severe
consequences that arise from having a criminal conviction,
because the judge then may dismiss the case. See G. L. c. 276A,
§ 7; Morgan, 476 Mass. at 772 ("Imposing an alternative
disposition to avoid a criminal conviction furthers these
goals").
Moreover, although a judge may not decline to arraign an
adult defendant over the Commonwealth's objection, see G. L.
c. 276, § 58 ("The [C]ommonwealth shall be the only party
permitted to move for arraignment . . ."), the Commonwealth also
has the inherent authority to decide not to pursue an
arraignment. See Commonwealth v. Moore, 93 Mass. App. Ct. 73,
77-79 (2018). The pretrial diversion statute apparently
contemplates a prosecutor's decision not to pursue formal
arraignment. See G. L. c. 276A, § 12, inserted by St. 2018,
c. 69, § 201 (nothing in this chapter "shall limit or govern the
authority of a district attorney or a police department to
divert an offender"). The Commonwealth does appear to be
choosing this route more frequently. See Commonwealth v. Newton
N., 478 Mass. 747, 758 & n.6 (2018). The Commonwealth's
decision not to pursue arraignment also serves the legislative
purpose, and may be more consistent with the treatment of
pretrial diversion in the other, more specialized diversion
programs. See, e.g., G. L. c. 119, § 54A (juveniles); G. L.
20
c. 276B, § 2 (restorative justice programming); G. L. c. 12,
§ 34 (mental health and substance abuse).13 Where appropriate,
pretrial diversion also saves significant police, prosecutor,
and court resources. See People v. Superior Court of San Mateo
County, 11 Cal. 3d 59, 61-62 (1974) (pretrial diversion is "[a]
quick and inexpensive method of disposition, when appropriate,
reduces the clogging of the criminal justice system . . . , and
thus enables the courts to devote their limited time and
resources to cases requiring full criminal processing"). Cf.
Eagle-Tribune Publ. Co. v. Clerk-Magistrate of the Lawrence Div.
of the Dist. Court Dep't, 448 Mass. 647, 650 (2007).
4. Conditions of release. We turn to the question of
imposition of conditions of release prior to arraignment. The
Commonwealth argues that the judge lacked statutory or inherent
authority to impose any conditions of release, such as the no-
contact order and GPS monitoring, because the defendant had not
been formally arraigned. For the same reason, the Commonwealth
argues that the probation service could not supervise the
defendant.
13In continuing to use the "at arraignment" language for
first-time adult offenders, it is possible the Legislature had
in mind its recent expansion of the circumstances, after a
specified period of time, in which a defendant may seek to have
any record of his or her court appearances or alternative
dispositions sealed. See G. L. c. 276, § 100A, as amended
through St. 2018, c. 69, §§ 186-192.
21
As an initial matter, we note that the Commonwealth did not
lodge a contemporaneous objection to the imposition of
conditions of release prior to the defendant's arraignment. To
the contrary, the Commonwealth agreed to the no-contact order.
It later requested that the defendant be removed from pretrial
diversion because of a suggestion that she had violated the no-
contact order, not because the condition had been imposed
improperly. The Commonwealth also did not object when the
defendant subsequently sought imposition of GPS monitoring.
Therefore, the Commonwealth's challenge to the conditions of
release at this point is unavailing. Cf. Commonwealth v.
Plasse, 481 Mass. 199, 206 (2019) (party cannot properly
challenge on appeal condition that he or she requested below).
Where the defendant requested that a condition of release be
imposed as a desirable alternative to arraignment, and the
Commonwealth assented to that condition, we discern no error in
the judge's imposition of the condition.
Addressing the matter on the merits under our
superintendence power, we do not agree that the judge had no
authority to impose conditions of release. Among other things,
the imposition of conditions of release prior to arraignment is
explicitly contemplated in the multiple programs that either
require, or permit, pretrial diversion without arraignment.
See, e.g., G. L. c. 12, § 34 (mental health and substance abuse
22
programming prior to arraignment); G. L. c. 111E, § 10 (drug
offense where defendant is addict); G. L. c. 119, § 54A
(pretrial diversion for juveniles prior to arraignment); G. L.
c. 276B, § 2 (restorative justice programming prior to
arraignment). Even where pretrial diversion is not contemplated,
we have held that, at a defendant's initial appearance,
ordinarily "the court must either arraign the defendant or set a
time for arraignment, and determine the conditions of the
defendant's release" (footnote omitted). See Commonwealth v.
Butler, 423 Mass. 517, 523 (1996). Thus, a judge has authority
to order conditions of release for a defendant who has not been
arraigned. See Commonwealth v. New York Cent. & H. R. R.R., 206
Mass. 417, 429 (1910) ("Where there is power in a court to hear
and determine a case, there is also power to issue proper
process to enforce its orders").
When conditions are ordered, the probation service may need
to monitor the defendant and perform "such other duties as the
court requires." See, e.g., First Justice of the Bristol Div.
of the Juvenile Court Dep't v. Clerk-Magistrate of the Bristol
Div. of the Juvenile Court Dep't, 438 Mass. 387, 400 (2003),
quoting G. L. c. 276, § 85. Thus, whether the arraignment took
place had no bearing on whether the judge could order conditions
of release such as GPS monitoring by the probation department.
23
5. Conclusion. The case is remanded to the county court
for entry of an order remanding the matter to the District Court
for further proceedings consistent with this opinion.
So ordered.