Commonwealth v. Gross , 64 Mass. App. Ct. 829 ( 2005 )

Berry, J.

This is an appeal from a summary judgment dismissing a petition filed under G. L. c. 123A to have the defendant tried to determine whether he was a sexually dangerous person under the statute. The summary judgment was based on the Commonwealth’s failure to comply with the trial motion filing timeline set forth in G. L. c. 123A, § 14(a),¹ which requires that the Commonwealth’s motion for trial shall be filed within fourteen days of the qualified examiners’ filing of their reports with the court. However, because the failure to so file did not result in a longer detention of the defendant, infringing his fundamental liberty interests, and because the original petition requested a trial, putting the defendant on notice, a majority of this court (by a closely divided count of the justices²) is of the opinion that dismissal of the petition by summary judgment was error.

The majority view is that this case is controlled by Commonwealth v. Gagnon, 439 Mass. 826, 830-832 (2003) (holding that procedural error by the Commonwealth in connection with certain timelines under G. L. c. 123A, which did not infringe liberty interests of a defendant, did not warrant dismissal of the petition), and Commonwealth v. Kennedy, 435 Mass. 527, 530 n.3 (2001) (reserving whether “lesser violations of the deadlines in G. L. c. 123A may result in some lesser sanction” than dismissal of the petition). Applying the rationales of Gagnon and Kennedy, in this case it is the opinion of this court that there was a lesser violation of the G. L. c. 123A time standards, which did not result in a fundamental abridgement of the defendant’s liberty. Therefore, the drastic sanction of dismissal by summary judgment was error of law. Instead, a lesser sanction was warranted, upon a showing of prejudice to the defendant arising out of the Commonwealth’s failure timely to file the trial motion. Accordingly, we reverse the summary judgment, which had barred trial proceedings to determine whether the defendant is a sexually dangerous person under G. L. c. 123A.

That there was not a longer detention infringing the defendant’s fundamental liberty interest flows from analysis of a chronology of the operative dates of the proceedings in the Superior Court, see analysis infra. That analysis establishes that, even had the Commonwealth’s § 14(a) trial motion been timely filed, the additional sixty days allowed under § 14(a) for commencement of trial (after the trial motion filing) was, in effect, a time buffer, such that the defendant would have been subject to detention in any event during the intervening period. See text of § 14(a) in note 1.

The controlling dates and timeline calculations under G. L. c. 123A are as follows. The two qualified examiner reports were timely filed on October 4, 2002. This means that the Commonwealth’s trial motion should have been filed on or before October 18, 2002. There is no question that this separate trial motion, required by § 14(a), was not timely filed by the Commonwealth. See note 8, infra. But, even had the trial motion been timely filed, the buffer to commencement of trial built into § 14(a) would have extended for sixty days, from October 18, 2002, to December 17, 2002. In this intervening period, the defendant still would have been subject to detention awaiting trial. Simply put, these material dates all compute to mean that, at the juncture of the defendant’s initial motion to dismiss filed on November 13, 2002, and originally denied by a Superior Court judge (different from the judge who ultimately entered summary judgment dismissing the petition) on November 15, 2002, the defendant’s liberty interest had not been infringed.³

Nothing in the defendant’s second dismissal motion, styled as a motion for summary judgment — which was not filed until February 11, 2005, more than two years after his original dismissal motion — in our opinion, changes the correctness of the original November 15, 2002, Superior Court judge’s ruling denying dismissal of the c. 123A petition. Moreover, this so-called summary judgment motion — more accurately deemed a motion for reconsideration⁴ — did not set forth any new facts or developments in the law relative to the G. L. c. 123A time standards which would have justified a judgment of dismissal in March, 2005, that had not been warranted in November, 2002. Especially is this so, when the March, 2005, dismissal judgment was based exclusively on the trial motion timeline detailed in § 14(a), already resolved in November, 2002.

Notwithstanding the lack of any change in fact or law as of March 2, 2005, the defendant’s motion for reconsideration was allowed by a Superior Court judge (as previously noted, different from the judge who had denied dismissal of the c. 123A petition on November 15, 2002), who entered summary judgment, dismissing the c. 123A petition with a concurrent order that the defendant be immediately released from the Massachusetts Treatment Center. Following the Commonwealth’s appeal, the defendant’s release was stayed by a single justice of this court, and the appeal was expedited.

We note that after the original November 15, 2002, denial of the defendant’s dismissal motion, both the Commonwealth and the defendant segued to pretrial proceedings and trial preparation activities common under G. L. c. 123A for an imminent trial. Furthermore, from all that appears of record, the approximately two-year delay to the final scheduled trial date was, in large measure (though unduly prolonged), attributable to the multitude of pretrial proceedings undertaken by both the defendant and the Commonwealth, continuing discovery, additional psychiatric evaluations and reports,⁵, ⁶ and extensive motion practice and requested continuances of the trial date⁷ — all as further detailed in the procedural history of this case, infra.

Analysis. As summarized supra, the operative points of reference are the October 4, 2002, date of the filing of the qualified examiner reports which, in turn, prompted the § 14(a) trial motion filing requirement; the October 18, 2002, deadline (not met) for the Commonwealth’s trial motion filing; the November 13, 2002, filing of the defendant’s original dismissal motion; the November 15, 2002, denial of that motion by the Superior Court judge; and the § 14(a) sixty-day trial commencement period, which would have extended the defendant’s detention for a period up to December 17, 2002, at which point, trial would have commenced, if it were not continued on various grounds.

At each of these operative points, there was no infringement of the defendant’s liberty interest because, although the trial motion was not timely filed on October 18, 2002,⁸ the Commonwealth’s failure to meet the fourteen-day § 14(a) time standard did not result in unlawful detention because the defendant nevertheless was awaiting trial under the sixty-day intervening period also provided for in § 14(a). Thus, as in the Gagnon case, “the Commonwealth’s failure to meet the report filing deadline [here, the § 14(a) trial motion filing deadline] did not affect the defendant’s liberty interest, and because the Commonwealth met all other deadlines, we vacate the order of dismissal.” Commonwealth v. Gagnon, 439 Mass. at 827. As in Gagnon, so too in this case, a lesser sanction rather than dismissal may have been appropriate, depending upon any resulting prejudice to the defendant. Here, however, the motion for reconsideration that led to the dismissal did not demonstrate any such prejudice.

The Kennedy case leads to the same result. In Kennedy, 435 Mass. at 531, the court affirmed dismissal of a G. L. c. 123A petition. But this was so because, in that case “[t]he Commonwealth[’s] fail[ure] to provide the defendant with the protections mandated by the statute . . . resulted] in a period of detention for examination vastly in excess of the maximum allowed by the statute.” Id. at 530. In the instant case, there was no such liberty deprivation as in Kennedy.⁹ Of import, although dismissal was deemed compelled in Kennedy, the Supreme Judicial Court framed the issue of an exception (consistent with Gagnon and applicable here), in circumstances when the Commonwealth’s violation of a prescribed G. L. c. 123A timeline does not cause abridgement of the defendant’s liberty. See id. at 530 n.3. “The facts in this case support the judge’s decision to dismiss, and the Commonwealth concedes that any alternative remedies to dismissal it might suggest in this case are now moot. We thus need not consider whether lesser violations of the deadlines in G. L. c. 123A may result in some lesser sanctiont” (emphasis supplied). Ibid.

In this appeal, several factors combine to place the case within the Gagnon framework and the Kennedy exception for a lesser sanction than dismissal of the G. L. c. 123A petition, including that (a) the defendant was on notice that the Commonwealth intended to proceed to trial because the Commonwealth had requested such relief in its original petition; (b) based on the qualified examiner reports filed on October 4, 2002, there was virtually no question but that the Commonwealth possessed psychiatric opinions clearly and unequivocally concluding that the defendant was sexually dangerous within the meaning of the G. L. c. 123A criteria, and that these diagnostic opinions served to provide additional notice to the defendant — consistent with the Commonwealth’s prior notice — that the Commonwealth would take the case to trial to have the defendant determined sexually dangerous; (c) following the Superior Court judge’s November 15, 2002, denial of the defendant’s motion to dismiss, the Commonwealth and the defendant acted as if the case were ongoing and appeared at a series of court dates, all designed to move the petition forward to trial, (d) a trial always loomed on the horizon — this, notwithstanding that the pretrial proceedings and motion practice were prolonged — so that there was no alteration in course from the Commonwealth’s original trial notice set forth in the petition; (e) the case was ultimately set for trial on February 28, 2005; and (f) no new facts or law supported the March, 2005, summary judgment dismissal, arising out of the very same violation of the G. L. c. 123A, § 14(a), trial motion filing deadline for which dismissal had been denied in November, 2002.

Procedural history. Because the procedural history is important to the question of whether a sanction lesser than dismissal under Gagnon and Kennedy is warranted, we set forth the dates of procedural steps and describe below a series of material court events¹⁰ in the procedural history relating to the case’s movement to trial.¹¹

That procedural history is as follows. On July 16, 2002, the Commonwealth filed a petition under G. L. c. 123A for the defendant’s commitment as a sexually dangerous person and for temporary detention pending hearing. A probable cause hearing was held on August 14, 2002, and the trial judge subsequently found probable cause. Therefore, on August 20, 2002, the defendant was committed to the Massachusetts Treatment Center as provided in G. L. c. 123A, § 13(a), for a period not to exceed sixty days to allow for psychiatric examination by two qualified examiners. The judge also set a case status conference date of October 10, 2002. On October 10, 2002, the case was called for a status conference; however, because the defendant’s attorney was not present, the docket reflects that “[ejvent not held — joint request.” The status conference was rescheduled to November 15, 2002. On October 4, 2002, the two qualified examiners filed their reports with the court. Both examiners opined that the defendant was sexually dangerous within the definition of G. L. c. 123A.

As previously noted, two days before that status conference was to take place, on November 13, 2002, the defendant filed his motion to dismiss the c. 123A petition, followed by the Superior Court judge’s November 15, 2002, denial of that motion, in turn followed by both the Commonwealth and the defendant proceeding to prepare for trial. Then, as described in greater detail supra, the next two years were consumed by pretrial proceedings, and extended by trial continuances requested (and allowed) jointly separately by both the defendant and the Commonwealth.¹² A final pretrial conference was set for February 9, 2005, with trial scheduled to follow on February 28, 2005. On February 11, 2005, the defendant filed the subject summary judgment motion for dismissal, which, after hearing, was allowed on March 2, 2005. This appeal followed.

For the foregoing reasons, and with particular reliance on Commonwealth v. Gagnon, 439 Mass. 826 (2003), and Commonwealth v. Kennedy, 435 Mass. 527 (2001), the dismissal by summary judgment was error. Therefore, we reverse the allowance of summary judgment and remand for further proceedings consistent with this opinion.

Judgment reversed.

1 General Laws c. 123A, § 14(a), inserted by St. 1999, c. 74, § 8, provides that:

“The district attorney or the attorney general at the request of the district attorney may petition the court for a trial which shall be by jury unless affirmatively waived by the person named in the petition. Such petition shall be made within 14 days of the filing of the report of the two qualified examiners. If such petition is timely filed within the allowed time, the court shall notify the person named in the petition and his attorney, the district attorney and the attorney general that a trial by jury will be held within 60 days to determine whether such person is a sexually dangerous person. The trial may be continued upon motion of either party for good cause shown or by the court on its own motion if the interests of justice so require, unless the person named in the petition will be substantially prejudiced thereby. The person named in the petition shall be confined to a secure facility for the duration of the trial.” (Emphasis supplied.)

2 The case was initially heard by a panel comprised of Justices Greenberg, Beck, and Berry. The decision of this panel, with a dissenting opinion, was thereafter circulated to the Justices of the Appeals Court. Following the recording of the votes of the Justices, the case was submitted on the record and briefs for further review by Chief Justice Armstrong and Justice Perretta, who then participated in the ultimate resolution and decision of this case, in accordance with the provisions of Mass.R.A.P. 24(a), 365 Mass. 872 (1974). The procedure follows that delineated in Sciaba Constr. Corp. v. Boston, 35 Mass. App. Ct. 181, 181 n.2 (1993), and the long-standing practice of the Appeals Court, designed to ensure that published opinions reflect the view of a majority of the Justices. See Commonwealth v. Rousseau, 61 Mass. App. Ct. 144, 144 n.1 (2004).

3 This case presents the issue not reached in Commonwealth v. Knapp, 441 Mass. 157, 158 n.3 (2004). In Knapp, the Supreme Judicial Court, ibid., noted:

“Instead of petitioning for a trial within fourteen days of the filing of the qualified examiners’ report, as G. L. c. 123A, § 14(a), envisions, the Commonwealth included its petition for a trial within its initial petition alleging that Knapp is a sexually dangerous person. Knapp moved to dismiss the Commonwealth’s petition for commitment on this basis. After a hearing, the Superior Court judge denied the motion, holding that the Commonwealth’s combined filing fulfilled “the spirit and letter of the statute.” Knapp argues here that the Commonwealth’s combined filing makes its petition invalid and therefore would render his own commitment illegal. The question whether the Commonwealth may file its § 14(a) petition concurrently with its § 12(b) petition was not reserved and reported by the single justice; therefore, we do not address it” (emphasis supplied).

Although the issue of a procedural error in moving for trial under § 14(a) was reserved in Knapp, the analysis in that opinion cites as a salient factor on the issue there presented, i.e., the constitutionality of the defendant’s confinement through trial, that there had been a determination of probable cause that the defendant was sexually dangerous under c. 123A. Id. at 166-167. That is similarly so in this case.

4 “Summary judgment is a creature of the Massachusetts Rules of Civil Procedure, which are inapplicable to proceedings under G. L. c. 123A.” Commonwealth v. Dube, 59 Mass. App. Ct. 476, 480 n.9 (2003). Accordingly, the defendant’s motion was essentially a motion to reconsider the defendant’s earlier motion to dismiss.

5 On April 21, 1994, the defendant pleaded guilty to rape of a child under sixteen years of age, and assault with intent to rape the eleven year old daughter of his long-time girlfriend. Two other charges, i.e., charges of assault and battery and indecent assault and battery on a child under fourteen years of age were filed. On the rape conviction, the defendant was sentenced to six to ten years; on the assault with intent to rape conviction, he was sentenced to a consecutive sentence of five to seven years.

6 Over the course of the case, the qualified examiners, Drs. Carol Feldman and Barbara Quiñones, submitted a total of five reports. Both psychiatric experts concluded that the defendant is sexually dangerous and likely to reoffend if not confined to a treatment facility. Dr. Feldman opined that the defendant suffers from antisocial personality disorder with symptoms of pedophilia. Dr. Quiñones opined that the defendant suffers from pedophilia and paranoid schizophrenia. This latter examiner comments that the defendant’s “history of sexually offending a ten year old girl over an extended period of time and the presence of a mental disorder that when active results in impulsivity, impaired judgment, and aggressive and threatening behavior for [the defendant] in conjunction with untreated sexual arousal toward children, a lack of treatment participation, and a history of medication noncompliance even within the constraints of hospitalization and incarceration are factors” that predispose the defendant to the commission of sexual acts to a degree that makes him a menace to society.

In February of 2005, shortly before filing the motion for summary judgment, the defendant filed with the court reports from Drs. Daniel Kriegman and Joseph J. Plaud, which set forth their expert opinions that the defendant did not meet the statutory definition of a sexually dangerous person.

7 Commencement of trial under G. L. c. 123A, § 14(a), may be continued in circumstances where a judge makes findings on the record that there is good cause to continue the beginning of trial, or that it is otherwise in the interest of justice to do so. See generally Commonwealth v. DeBella, 442 Mass. 683, 687-691 (2004).

8 The dissent notes that the Commonwealth never filed a motion for trial. That may be accounted for by the fact that the first Superior Court judge denied the dismissal motion, and the case proceeded on a trial course. Even though untimely, i.e., even though the October 18 § 14(a) deadline had passed and dismissal was denied on November 15, the better practice would have been for the Commonwealth to file such a motion for the record. Given the correctness of the November 15 denial of dismissal of the petition, the Commonwealth’s failure to cure the filing defect does not change our analysis.

9 To reiterate, the long period before the case was set for trial had nothing to do, as far as can be seen from the record, with the § 14(a) violation, but rather was attributable to the course of the pretrial proceedings.

10 To be noted, respectfully, is that the dissent does not address the significance of this procedural history and the forward movement to trial after the original November, 2002, denial of the motion to dismiss — a movement that continued right up to the March, 2005, summary judgment.

11 bAlso set forth in note 12 are additional dates in the case chronology that, although not directly material to the § 14(a) time calculations, nonetheless provide further relevant information concerning the chronology of the court docket, as the case moved to trial.

12 Material court events have been placed in the chronology, supra. Attention should also be directed to the following dates to bring the case through its course. On November 15, 2002 (the same day as the denial of the dismissal motion), the case was also called for status and was scheduled for a further December 13, 2002, telephone status hearing, but that status date was rescheduled. On January 2, 2003, at the defendant’s request, the case was continued to February 3, 2003. On February 3, 2003, the trial date was set for April 22, 2003. On April 18, 2003, a joint motion was allowed to continue the trial to June 4, 2003, to allow for further interview of the defendant by the qualified examiners. On June 2, 2003, the Commonwealth and the defendant filed a joint motion to reschedule the trial to July 28, 2003, which was allowed. On July 29, 2003, the court allowed the Commonwealth’s motion to continue and then, on September 16, 2003, trial was continued again. On June 7, 2004, the defendant again moved to continue the trial date. Trial was next scheduled for September 27, 2004. The defendant notified the court that he was unavailable for the September 27, 2004, trial. On October 21, 2004, the court sent notices to appear for pretrial conference on November 3, 2004. On February 9, 2005, a final pretrial conference was scheduled, with trial to commence on February 28, 2005.