Commonwealth v. Guzman

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SJC-11483
COMMONWEALTH vs. JOSE A. GUZMAN.
Suffolk. February 4, 2014. - August 25, 2014.
Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly,
& Lenk, JJ.1
Sex Offender. Global Positioning System Device. Constitutional
Law, Sentence. Due Process of Law, Sentence. Practice,
Criminal, Sentence, Probation.
Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on February 7, 2013.
The case was reported by Lenk, J.
Thomas E. Bocian, Assistant Attorney General (Timothy J.
Wyse, Assistant Attorney General, with him) for the
Commonwealth.
Ryan M. Schiff, Committee for Public Counsel Services, for
the defendant.
LENK, J. In the case before us, a Superior Court judge
declined to include global positioning system (GPS) monitoring
as a condition of the probationary portion of the sentence she
1
Chief Justice Ireland participated in the deliberation on
this case prior to his retirement.
2
imposed following the defendant's pleas of guilty to several
offenses. One of those offenses was the dissemination of visual
material depicting a child in a state of nudity or sexual
conduct, one of the "sex offense[s] involving a child"
enumerated in G. L. c. 265, § 47, that requires a defendant
convicted of such an offense to be subject to GPS monitoring as
a condition of any term of probation, during "the length of his
probation for any such offense." We are called upon to decide
whether the imposition of GPS monitoring in such circumstances
is mandatory and, if so, whether such statutory mandate either
constitutes an unreasonable search and seizure pursuant to the
Fourth Amendment to the United States Constitution and art. 14
of the Massachusetts Declaration of Rights, or violates
substantive and procedural due process pursuant to the
Fourteenth Amendment to the United States Constitution and arts.
1, 10, 11, and 12 of the Massachusetts Declaration of Rights.
It is plain that G. L. c. 265, § 47, affords a sentencing
judge no discretion whether to impose GPS monitoring on a
defendant sentenced, as here, to a probationary term for an
enumerated offense. Although, given the inadequate record
before us, we do not reach the defendant's Fourth Amendment
claim, we conclude that G. L. c. 265, § 47, does not violate the
defendant's right to due process. Because the statute applied
to the defendant in the circumstances, and because there was no
3
constitutional bar to its application, the failure to include
GPS monitoring as a condition of the defendant's probation was
error.2
1. Background. On August 15, 2011, a Suffolk County grand
jury issued two indictments charging dissemination or possession
of obscene matter, G. L. c. 272, § 29; two indictments charging
dissemination of visual material depicting a child in a state of
nudity or sexual conduct, G. L. c. 272, § 29B, a predicate
offense under G. L. c. 265, § 47; and one indictment charging
purchase or possession of visual material depicting a child
involved in sexual conduct, G. L. c. 272, § 29C. The defendant,
who had no previous convictions of a sex offense, had acquired
child pornography through LimeWire, an Internet-based file
2
On December 9, 2013, approximately one year after she
initially sentenced the defendant, and after she had denied the
Commonwealth's subsequent motion that global positioning system
(GPS) monitoring be imposed, the sentencing judge added GPS
monitoring as a condition of the defendant's probation, and
reduced the term of his probationary period from five years to
two years. The appellate attorneys did not become aware of this
modification until after the case had been briefed and argued;
on March 20, 2014, the Commonwealth notified this court of the
modified terms of the defendant's probation.
Although the Commonwealth's appeal is now moot, "we
exercise our discretion[, as both parties request we do,] to
hear the merits of this case because the issue is of significant
public interest, fully briefed by the parties, and very likely
to arise again in similar circumstances, yet evade review." See
Commonwealth v. Hanson H., 464 Mass. 807, 808 n.2 (2013), citing
Commonwealth v. Cory, 454 Mass. 559, 560 n.3 (2009) (deciding
whether G. L. c. 265, § 47, applies to juveniles although
juvenile defendant's case was moot).
4
sharing system. The allegation that the defendant engaged in
distribution stemmed from the fact that the defendant's use of
LimeWire's default settings3 permitted other users to access his
files.
In conjunction with a proposed plea agreement, the
Commonwealth submitted a sentencing memorandum proposing that
the defendant be sentenced to from four to five years in State
prison followed by ten years of probation.4 After conducting two
lobby conferences and reviewing an expert forensic evaluation of
the materials found on the defendant's computer, the judge
convened a plea and sentencing hearing on December 10, 2012.
During the defendant's plea colloquy, the judge and both counsel
discussed whether the defendant would be required to wear a GPS
device as one of the conditions of his probation. A member of
the court staff informed the judge that the imposition of GPS
monitoring as a condition of probation was discretionary. The
judge then sentenced the defendant to a one-year term of
incarceration for his convictions under G. L. c. 272, §§ 29 and
3
LimeWire's default settings involve the creation of a
"Shared" folder on a user's computer. Any file placed in the
"Shared" folder is automatically available to any other LimeWire
user, and, also automatically, any file downloaded through
LimeWire is saved in the "Shared" folder. See United States v.
Lewis, 554 F.3d 208, 211 (1st Cir.), cert. denied, 556 U.S. 1276(2009).
4
It did not suggest that GPS monitoring be a condition of
the defendant's probation.
5
29C, and to a probationary period of five years for his
convictions under G. L. c. 272, §§ 29 and 29B. She declined to
require that the defendant wear a GPS device as a condition of
probation.
Three days later, the Commonwealth sought and was granted a
further hearing, at which it argued that, pursuant to G. L.
c. 265, § 47, GPS monitoring was a required condition of
probation for the offense of dissemination of visual material
depicting a child in a state of nudity or sexual conduct to
which the defendant had pleaded guilty. The judge again
declined to impose GPS monitoring.5 In so doing, she noted that
the statute was "problematic" for its failure to distinguish
between contact sex offenders and noncontact offenders, and
explained that "dealing with this case individually" had led her
to conclude that GPS monitoring was unnecessary. Several months
later, the Commonwealth filed a petition for relief in the
county court, pursuant to G. L. c. 211, § 3, requesting that the
single justice vacate the defendant's sentence and remand for
further proceedings in accordance with G. L. c. 265, § 47.6 The
5
The judge also indicated that, if the Commonwealth
appealed and was successful, she would permit the defendant to
withdraw his guilty plea. See Mass. R. Crim. P. 12 (c) (2), as
appearing in 442 Mass. 1511 (2004).
6
One month previously, the Commonwealth had filed a notice
of appeal in the Appeals Court. Proceedings in that case have
been stayed in light of the instant proceedings.
6
defendant opposed the petition, arguing that GPS monitoring
would violate his right against unreasonable searches and
seizures and his right to due process under both the State and
Federal Constitutions. The single justice reserved and reported
the case to the full court.
2. Discussion. a. Requirements under G. L. c. 265, § 47.
The parties dispute whether G. L. c. 265, § 47, mandates GPS
monitoring as a condition of the defendant's probation. The
Commonwealth contends that, where a defendant is convicted of an
enumerated offense and subsequently sentenced to a term of
probation, the sentencing judge has no discretion to decline to
impose GPS monitoring as a condition of that probation. The
defendant maintains, to the contrary, that the judge is
permitted to determine on a case-by-case basis whether GPS
monitoring is appropriate given a defendant's risk of reoffense.
To determine whether G. L. c. 265, § 47, affords a
sentencing judge any discretion concerning the imposition of GPS
monitoring as a term of probation for certain predicate
offenses, we begin with the plain language of the statute. See
Commonwealth v. Hanson H., 464 Mass. 807, 810 (2013), quoting
Commonwealth v. Raposo, 453 Mass. 739, 743 (2009). Ordinarily,
we will "not look beyond the words of the statute where the
language is plain and unambiguous," State Bd. of Retirement v.
Boston Retirement Bd., 391 Mass. 92, 94 (1984), nor will we add
7
words to the statute that the Legislature did not see fit to
include. Commissioner of Correction v. Superior Court Dep't of
the Trial Court for the County of Worcester, 446 Mass. 123, 126
(2006).
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
device . . . at all times for the length of his probation
for any such offense."
In turn, G. L. c. 6, § 178C, defines the terms "[s]ex offense"
and "[s]ex offense involving a child" to include the
dissemination of visual material depicting a child in a state of
nudity or sexual conduct, as set forth in G. L. c. 272, § 29B.
Because "[t]he word 'shall' is ordinarily interpreted as
having a mandatory or imperative obligation," Hashimi v. Kalil,
388 Mass. 607, 609 (1983), we have determined that the GPS
requirement of G. L. c. 265, § 47, applies to any defendant who
has been convicted of a predicate offense and sentenced to a
term of probation. See Commonwealth v. Canadyan, 458 Mass. 574,
575 n.2 (2010) ("Having been placed on probation for a 'sex
offense,' the defendant was required to wear a [GPS device] as a
condition of his probation"); Commonwealth v. Cory, 454 Mass.
559, 569 (2009) (GPS requirement of G. L. c. 265, § 47, "applies
to every person who is convicted of [predicate] crimes and
8
receives a probationary term as part of the criminal
proceeding's disposition"). Thus, we conclude that G. L.
c. 265, § 47, affords judges no discretion to decide whether GPS
monitoring should apply in any particular set of circumstances;
where a defendant is convicted of a qualifying offense and is
sentenced to a term of probation, the sentencing judge must
impose GPS monitoring as a condition of that probation.7
b. Constitutional claims. We turn to the defendant's
constitutional arguments. The defendant contends that the
imposition of GPS monitoring would violate his right to due
process under both the Federal and State Constitutions.
Specifically, he objects to the determination that G. L. c. 265,
§ 47, affords a sentencing judge no discretion to decide whether
GPS monitoring ought to be imposed on an individual defendant,
including those who have committed only noncontact offenses.
Because the Legislature may establish, within constitutional
limits, mandatory minimum sentences for certain predicate
offenses, and because G. L. c. 265, § 47, constitutes no more
than such a sentence, we conclude that the imposition of GPS
monitoring on the defendant would not offend due process. The
7
As stated, the defendant pleaded guilty to a qualifying
offense under G. L. c. 6, § 178C, namely, the dissemination of
visual material depicting a child in a state of nudity or sexual
conduct, and was sentenced to a probationary term of five years
for that offense and two others. He therefore falls within the
ambit of G. L. c. 265, § 47.
9
defendant also maintains that GPS monitoring would encroach upon
his Fourth Amendment right to be free of unreasonable searches
and seizures. The record here, however, is too sparse to permit
an adequate assessment of the defendant's Fourth Amendment
claim, and we accordingly decline to reach it.8
i. Due process. "A probation condition is enforceable,
even if it infringes on a defendant's ability to exercise
constitutionally protected rights, so long as the condition is
'reasonably related' to the goals of sentencing and probation."
Commonwealth v. Lapointe, 435 Mass. 455, 459 (2001), quoting
Commonwealth v. Pike, 428 Mass. 393, 403 (1998). See
Commonwealth v. Goodwin, 458 Mass. 11, 17 (2010). The defendant
urges that we employ this "reasonably related" test to assess
whether GPS monitoring constitutionally may be imposed on all
probationers convicted of predicate offenses. Doing so, he
contends, would compel the conclusion that G. L. c. 265, § 47,
offends due process as applied to defendants convicted, as he
was, of only noncontact sex offenses.
8
The defendant does not challenge the mandatory
requirements of G. L. c. 265, § 47, under either the Eighth
Amendment to the United States Constitution or art. 26 of the
Massachusetts Declaration of Rights, and the record here would
not permit a determination of that issue. Accordingly, we do
not consider whether the mandatory imposition of GPS monitoring
could in some circumstances constitute a punishment
"disproportionate to the magnitude of the crime" in question.
See Commonwealth v. O'Neal, 369 Mass. 242, 247-248 (1975).
10
The "reasonably related" test, however, is inapplicable
here. To date, we have used that test only to analyze the
validity of conditions of probation that are imposed by a
sentencing judge in his or her discretion. See, e.g.,
Commonwealth v. Rousseau, 465 Mass. 372, 389 (2013) ("In
determining a sentence, a judge is authorized . . . to impose
any conditions that the judge deems proper"); Commonwealth v.
Lapointe, supra at 459, quoting Commonwealth v. Goodwin, 414
Mass. 88, 92 (1993) ("A judge, in furnishing an appropriate
individualized sentence, may consider 'many factors'. . .");
Commonwealth v. Pike, supra at 402-403 (discussing sentencing
judge's latitude in imposing conditions on probation);
Commonwealth v. Power, 420 Mass. 410, 414 (1995), cert. denied,
516 U.S. 1042 (1996) (noting that "the judge should consider
several goals" in imposing sentence). We have never applied the
"reasonably related" test to those conditions of probation that
the Legislature has concluded are mandatory. Instead, where the
Legislature has prescribed particular punishments for a given
offense, we ask only whether that mandatory sentence meets the
rational basis test. See Commonwealth v. Therriault, 401 Mass.
237, 241-242 (1987) (applying rational basis test to due process
challenge to mandatory minimum sentence); Commonwealth v.
Jackson, 369 Mass. 904, 918 (1976) (legislatively mandated
11
punishments subject only to rational basis review and need not
withstand "exacting scrutiny").
This diminished level of scrutiny is based on our
recognition that, while "[a] judge's latitude in sentencing is
great but not infinite," Commonwealth v. Gomes, 73 Mass. App.
Ct. 857, 859 (2009), the Legislature has broad power to
determine the appropriate punishment for a given offense. See
Commonwealth v. Jackson, supra at 909 ("Legislature has great
latitude to . . . prescribe penalties to vindicate the
legitimate interests of society"); Harding v. Commonwealth, 283
Mass. 369, 374 (1933) ("It is for the General Court in the main
to establish the maximum terms of sentence for the several
crimes known to the law"). See also Commonwealth v. Alvarez,
413 Mass. 224, 233 (1992); Commonwealth v. O'Neal, 369 Mass.
242, 248 (1975) (Tauro, C.J., concurring); Commonwealth v.
Morrow, 363 Mass. 601, 610-611 (1973).
We have recognized also that, by establishing mandatory
minimum sentences for particular offenses, the Legislature
curtails the ability of a sentencing judge to determine the
appropriate sentence in a given case. See Commonwealth v.
Therriault, supra at 239, citing Solem v. Helm, 463 U.S. 277,
290 (1983) ("the Legislature has latitude in determining limits
on the discretion that the trial judges possess in sentencing
convicted criminals"). Since a term of probation constitutes a
12
"sentence", see, e.g., Commonwealth v. Power, supra at 414, the
Legislature likewise may restrict a sentencing judge's
discretion to determine the terms of probation.9 See
Commonwealth v. Jackson, supra at 919; Commonwealth v. Leis, 355
Mass. 189, 199 (1969), quoting Williams v. Oklahoma, 358 U.S.
576, 586 (1959) ("Unless the punishment exceeds a constitutional
limit, the task of assigning penalties is for the Legislature").
Indeed, in construing G. L. c. 265, § 47, we have not questioned
the Legislature's ability to establish mandatory conditions of
probation in general or to require GPS monitoring in particular.
See Commonwealth v. Hanson H., 464 Mass. 807, 810-817 (2013);
Commonwealth v. Raposo, 453 Mass. 739, 748 (2009).
In light of this, we discern no reason to apply the
"reasonably related" test to such legislatively mandated
conditions of probation as the requirement of GPS monitoring in
G. L. c. 265, § 47. Accordingly, we do not consider whether the
imposition of GPS monitoring as a mandatory condition of
probation for those convicted of certain predicate offenses
pursuant to G. L. c. 265, § 47, is reasonably related to the
9
In this regard, the Legislature's ability to limit the
discretion of the sentencing judge does not violate the
separation of powers by permitting the Legislature to usurp the
judicial function of sentencing. See Commonwealth v.
Therriault, 401 Mass. 237, 242 (1987) (imposition of mandatory
minimum sentence did not derogate separation of powers);
Commonwealth v. Jackson, 369 Mass. 904, 920-923 (1976) (there is
no support for proposition that "Legislature cannot limit a
court's probationary powers").
13
goals of sentencing and probation. Instead, we inquire only
whether there is a rational basis to support the Legislature's
determination. We conclude that there is.
Permissible legislative objectives concerning criminal
sentencing include deterrence, isolation and incapacitation,
retribution and moral reinforcement, as well as reformation and
rehabilitation. See Cepulonis v. Commonwealth, 384 Mass. 495,
499 (1981), citing Commonwealth v. O'Neal, supra at 251 & n.11.
The provisions of G. L. c. 265, § 47, reasonably can be viewed
as serving many, if not all, of these goals. We have noted the
danger of recidivism posed by sex offenders. See, e.g.,
Commonwealth v. Knapp, 441 Mass. 157, 159 (2004). The
Legislature permissibly has determined that the risk of being
subjected to GPS monitoring might deter future or repeat
offenders. See Commonwealth v. Cory, 454 Mass. 559, 571 (2009)
(penal nature of GPS monitoring promotes deterrence). The
Legislature similarly was free to conclude that enabling police
to track the movements of all convicted sex offenders would
promote the security and well-being of the general public. See
Doe, Sex Offender Registry Bd. No. 8725 v. Sex Offender Registry
Board, 450 Mass. 780, 789-790 (2008). Within constitutional
limitations, the Legislature may establish harsh punishments for
particular offenses in order to discourage reoffense and promote
rehabilitation. See Commonwealth v. Jackson, supra at 912-913
14
(Legislature had not "exceeded its prerogative" in imposing
"harsh, inflexible sentence"). "The present statute,"
therefore, "is obviously an attempt to deter through a
nondiscretionary penalty." Id. at 912.
We observed in Commonwealth v. Cory, supra at 572, and note
again today, that "[t]he sanction [of GPS monitoring] appears
excessive . . . to the extent that it applies without exception
to convicted sex offenders sentenced to a probationary term,
regardless of any individualized determination of their
dangerousness or risk of reoffense." At least for purposes of
due process analysis, however, this is "a debate that has
already been settled on the floor of the Legislature."
Commonwealth v. Therriault, supra at 242. In promulgating G. L.
c. 265, § 47, the Legislature saw fit to impose GPS monitoring
as a condition of probation even for those sex offenders
convicted of noncontact offenses. See Luk v. Commonwealth, 421
Mass. 415, 429 (1995) (it is for Legislature to determine best
means by which to address issues implicating public safety). We
cannot say that the Legislature's determination is without
rational basis.
ii. Search and seizure. We generally decline "to consider
constitutional issues for the first time on appeal in order to
avoid an unnecessary constitutional decision." Beeler v.
Downey, 387 Mass. 609, 613 n.4 (1982). See Commonwealth v.
15
Raposo, supra at 743. This is particularly so where "the record
accompanying [constitutional claims] is lacking . . . in
providing a basis for their intelligent resolution." Gagnon,
petitioner, 416 Mass. 775, 780 (1994), citing Commissioner of
Correction v. McCabe, 410 Mass. 847, 850 n.7 (1991).
While the defendant contends that the imposition of GPS
monitoring constitutes an unreasonable search or seizure of his
person, questions of reasonableness are necessarily fact-
dependent. See Scott v. Harris, 550 U.S. 372, 383 (2007) (in
Fourth Amendment context, court must "slosh [its] way through
the factbound morass of 'reasonableness'"); Commonwealth v.
Krisco Corp., 421 Mass. 37, 42 (1995) (reasonableness inquiry in
Fourth Amendment context "is highly dependent on the particular
facts involved"). Here, neither the Commonwealth nor the
defendant presented evidence concerning the details of the GPS
monitoring to which the defendant is subject. Absent such a
record, we are unable to address the defendant's Fourth
Amendment claims. See Doe v. Doe, 378 Mass. 202, 203 (1979)
("Where constitutional questions and matters of asserted public
policy are raised, it is preferable to pass on the issues in
light of a fully developed trial record rather than, as here, in
the abstract"); Tardiff, petitioner, 328 Mass. 265, 267 (1952),
quoting Atlantic Maritime Co. v. Gloucester, 228 Mass. 519, 522
16
(1917) (fact-finding duty "is not an appropriate function of a
court of last resort").
3. Conclusion. Where the defendant was sentenced to a
probationary term for a predicate offense pursuant to G. L.
c. 265, § 7, the sentencing judge was mandated to impose GPS
monitoring as a condition of probation. Because the
Commonwealth's appeal is now moot, however, see note 1, supra,
we remand the matter to the single justice for entry of a
judgment dismissing the Commonwealth's petition pursuant to
G. L. c. 211, § 3.
So ordered.