Commonwealth v. Doe

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SJC-11861

COMMONWEALTH vs. JOHN DOE. 1

Hampshire. September 9, 2015. - October 22, 2015.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
& Hines, JJ.

Sex Offender. Global Positioning System Device. Practice,
Criminal, Probation, Admission to sufficient facts to
warrant finding, Continuance without a finding. Statute,
Construction.

Complaint received and sworn to in the Eastern Hampshire
Division of the District Court Department on February 1, 2013.

A motion to modify a condition of probation was heard by
Christopher P. LoConto, J., and a question of law was reported
by him to the Appeals Court.

The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.

1
A pseudonym. A judge in the District Court allowed the
defendant's motion to substitute this pseudonym for the
defendant's true name, finding good cause to do so because
"there are serious mental health considerations were the
defendant's name to be made public." Because the Commonwealth
did not appeal this order, we do not address the propriety of
allowing a criminal defendant to be identified with a pseudonym.
 2

Tracy A. Miner (Frederic G. Bartmon & Christina Lynn with
her) for the defendant.
Cynthia M. Von Flatern, Assistant District Attorney, for
the Commonwealth.
William C. Newman & K. Hayne Barnwell, for American Civil
Liberties Union of Massachusetts, amicus curiae, submitted a
brief.
Ryan M. Schiff, Committee for Public Counsel Services, for
Committee for Public Counsel Services, amicus curiae, submitted
a brief.

GANTS, C.J. This case is the latest in a string of cases

calling on us to decide the reach of G. L. c. 265, § 47, which

provides in relevant part, "Any person who is placed on

probation for any offense listed within the definition of 'sex

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." Most recently, in Commonwealth v. Hanson

H., 464 Mass. 807, 808 (2013), we determined that the

Legislature did not intend this statute to apply to juveniles

who were placed on probation after having been adjudicated

delinquent. Previously, in Commonwealth v. Raposo, 453 Mass.

739, 748 (2009), we concluded that § 47 does not apply to

persons who are placed on pretrial probation. In Raposo, we

left "for a more appropriate case, and one in which the issue is

briefed by the parties, whether [§ 47] applies to defendants

whose cases are continued without a finding after a guilty plea

or an admission to sufficient facts." Id. at 740 n.2. This is
 3

that case. We conclude that § 47 does not apply to cases that

are continued without a finding, and that a judge is not

required in such cases to order that a defendant wear a global

positioning system device that will monitor his or her

whereabouts (GPS monitoring) as a condition of probation. 2

Background. At approximately 1:00 A.M. on January 25,

2012, the victim and the defendant were among a group of men and

women who were socializing in an apartment in Amherst. The

victim had lost her cellular telephone earlier that evening and

learned that the telephone had been located and was being held

for her. The victim wished to retrieve her telephone

immediately, and the defendant, who had not met the victim until

that evening, offered to drive her so that she could do so.

Once they were outside, the defendant put his arm around the

victim and told her she was beautiful. The victim removed his

hand from her shoulder, and told him that she had a boy friend.

He told her, "Everybody cheats," and she replied, "Not me." The

defendant asked to hold her hand and she said, "No." He then

forced his hand into her left jacket pocket and placed his hand

on her hand, but he withdrew his hand from her pocket when she

turned away. The defendant then put his hands around her waist

and started to kiss her neck, but she pulled away. After they

2
We acknowledge the amicus briefs submitted by the
Committee for Public Counsel Services and the American Civil
Liberties Union of Massachusetts.
 4

entered his vehicle, he tugged at her scarf and started to lick

her ear. She pulled away again and told him to stop. He then

grabbed her left thigh, and she told him to stop and tried to

pull his hand away. He later placed his hand in the area of her

vagina, over her jeans. She pushed him away and told him to

stop. The defendant began driving, and as the vehicle

approached the street of the person who had retrieved the

victim's telephone, the defendant said, "Let's go to my

apartment. I have a nice bed. You'll like it." The victim

told him again that she had a boy friend and wanted only to

retrieve her telephone. When they arrived at the destination,

the victim left the vehicle and ran to the house of the person

who was holding her telephone. That person drove her home.

During the police investigation of the incident, the

defendant was interviewed and admitted to most of what the

victim reported, but denied touching her vaginal area. As

described by the prosecutor during the plea colloquy, the

defendant "basically told the police that . . . he was just

trying to pick her up."

The defendant was charged in a criminal complaint with

indecent assault and battery on a person over the age of

fourteen, in violation of G. L. c. 265, § 13H. At the plea

colloquy, the judge declared that the charge essentially was

"the touching of the vagina," and asked the defendant if he
 5

admitted to that. The defendant answered, "Yes," and the judge

found sufficient facts to support a finding of guilt. The judge

continued the case without a finding for a term of five years.

The judge imposed several special conditions of probation,

including that the defendant attend counseling twice per month

and stay away from the victim and her college campus. The judge

also ordered GPS monitoring of the defendant, stating that such

monitoring was required under § 47 for a person placed on

probation for this sex offense.

Five days later, the defendant filed a motion to remove GPS

monitoring as a condition of his probation, claiming that § 47

does not impose mandatory GPS monitoring for persons who are on

probation pursuant to a continuance without a finding. The

judge denied the motion but reported the following question of

law to the Appeals Court pursuant to Mass. R. Crim. P. 34, as

amended, 442 Mass. 1501 (2004): "Whether the provisions of

[G. L. c. 265, § 47,] appl[y] to a defendant who was placed on a

[c]ontinuance [w]ithout a [f]inding for a violation of [G. L.

c. 265, § 13H]."

The defendant filed a motion to stay GPS monitoring as a

condition of probation while the appeal was pending. The judge

held an evidentiary hearing, where he heard testimony from the

defendant's treating psychologist regarding the defendant's

"severe anxiety disorder" and "autism spectrum disorder," and
 6

the "evident" harm to the defendant's psychological condition

and to the psychologist's "ability to rehabilitate" the

defendant caused by the GPS monitoring. The judge allowed the

motion, finding that the defendant raised an issue that is

worthy of presentation to an appellate court, and that the

defendant presented no risk of flight or danger to the

community. The judge also found that GPS monitoring of this

defendant "adds nothing to public safety," because the defendant

is not a sexual predator or pedophile, and the defendant has no

information regarding the victim's whereabouts. He found that

the defendant suffers from an anxiety disorder on the autism

spectrum, and that his disorder "is in no way associated with

risk to reoffend." He also found that the defendant is actively

participating in treatment for this disorder, and that GPS

monitoring is adversely affecting that treatment. We

transferred the case from the Appeals Court on our own motion to

answer the reported question.

Discussion. "The general and familiar rule is that a

statute must be interpreted according to the intent of the

Legislature ascertained from all its words construed by the

ordinary and approved usage of the language, considered in

connection with the cause of its enactment, the mischief or

imperfection to be remedied and the main object to be

accomplished, to the end that the purpose of its framers may be
 7

effectuated." Commonwealth v. Millican, 449 Mass. 298, 300

(2007), quoting Hanlon v. Rollins, 286 Mass. 444, 447 (1934).

Because "we look first and foremost to the language of the

statute as a whole," Matter of a Grand Jury Subpoena, 447 Mass.

88, 90 (2006), we set forth the full text of § 47:

"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, or any comparable device, administered by the
commissioner of probation, at all times for the length of
his probation for any such offense. The commissioner of
probation, in addition to any other conditions, shall
establish defined geographic exclusion zones including, but
not limited to, the areas in and around the victim's
residence, place of employment and school and other areas
defined to minimize the probationer's contact with
children, if applicable. If the probationer enters an
excluded zone, as defined by the terms of his probation,
the probationer's location data shall be immediately
transmitted to the police department in the municipality
wherein the violation occurred and the commissioner of
probation, by telephone, electronic beeper, paging device
or other appropriate means. If the commissioner or the
probationer's probation officer has probable cause to
believe that the probationer has violated this term of his
probation, the commissioner or the probationer's probation
officer shall arrest the probationer pursuant to [G. L.
c. 279, § 3]. Otherwise, the commissioner shall cause a
notice of surrender to be issued to such probationer.

"The fees incurred by installing, maintaining and operating
the [GPS] device, or comparable device, shall be paid by
the probationer. If an offender establishes his inability
to pay such fees, the court may waive them."

The Commonwealth argues that the defendant was placed on

probation for a "sex offense," as defined in G. L. c. 6, § 178C,

and therefore, by the plain language of § 47, GPS monitoring
 8

must be a term of his probation. It contends that the use of

the words "probation" and "probationer" throughout the statute

means that § 47 applies to all persons placed on probation after

admitting to the commission of a sex offense, regardless of

whether the disposition of the sex offense is a conviction or a

continuance without a finding. But in construing a statute, we

look to "all," Millican, 449 Mass. at 300, of its words; none

"is to be regarded as superfluous." Id., quoting Commonwealth

v. Woods Hole, Martha's Vineyard & Nantucket S.S. Auth., 352

Mass. 617, 618 (1967). The final sentence of the statute refers

to the probationer as "an offender," which denotes that the

Legislature understood that every probationer for whom § 47

applied would be "an offender." See Raposo, 453 Mass. at 746

("reasonable to infer that the Legislature was using the terms

'probationer' and 'offender' interchangeably in the second

paragraph of § 47").

To ascertain what the Legislature meant by "an offender,"

we look to the entirety of the statute enacted by the

Legislature on September 21, 2006, St. 2006, c. 303, entitled,

"An Act increasing the statute of limitations for sexual crimes

against children" (act), which added § 47 to the General Laws in

the eighth of ten sections. The term "sex offender" is used

eleven times in four of the ten sections. See St. 2006, c. 303,

§§ 1, 2, 4, 6. These sections, among other things, required
 9

correctional authorities to transmit a sex offender's

registration data to the Sex Offender Registry Board (board)

within five days of receiving the sex offender after sentence,

id. at § 1; required a homeless sex offender to verify

registration data with the board every forty-five days, id. at

§ 2; provided that level two and level three sex offenders who

are convicted of failing to register as required by G. L. c. 6,

§ 178H, be subject to community parole supervision for life, id.

at § 4; 3 and prohibited level three sex offenders from residing

in nursing homes. Id. at § 6.

The word "offender" is used alone in the act only three

times: once in § 8, which enacted G. L. c. 265, § 47, and twice

in § 1, where the word was used in provisions that required

agencies who had custody of a sex offender to inform the board

immediately of a transfer "so that there may be contact with the

offender throughout the classification process," and that

required the board to classify each sex offender at least ten

days "before the offender's earliest possible release date." It

is plain from § 1 of the act that, when the Legislature used the

word "offender" alone, it meant "sex offender." It is equally

3
In Commonwealth v. Cole, 468 Mass. 294, 308 (2014), we
declared community parole supervision for life to be
unconstitutional because it "constitutes an impermissible
delegation to the executive branch of the core judicial function
of imposing sentences, and therefore violates the mandate of
art. 30 of the Massachusetts Declaration of Rights."
 10

plain that, when the Legislature used the word "offender" in

§ 47 (§ 8 of the act), it also meant "sex offender," and

intended the GPS monitoring mandated by § 47 to apply only to

sex offenders who were placed on probation. See Burno v.

Commissioner of Correction, 399 Mass. 111, 120 (1987) (where two

statutes are enacted together and are related in subject matter,

"it is reasonable to conclude that the Legislature intended that

one meaning should be assigned to identical language in both

statutes"). See generally 2B N.J. Singer & J.D. Shambie Singer,

Statutes and Statutory Construction §§ 51.1-51.3 (7th ed. 2012)

(doctrine of in pari materia).

The term "sex offender" is not defined in the act, but it

is defined in G. L. c. 6, § 178C, to which § 47 refers for other

definitions, as a person "who has been convicted of a sex

offense or who has been adjudicated as a youthful offender or as

a delinquent juvenile by reason of a sex offense." (emphasis

added). "An admission to sufficient facts followed by a

continuance without a finding is not a 'conviction' under

Massachusetts law." Commonwealth v. Villalobos, 437 Mass. 797,

802 (2002). 4 Rather, where a judge continues a case without a

4
Our recent holding in Tirado v. Board of Appeal on Motor
Vehicle Liab. Policies & Bonds, 472 Mass. 333, 334 (2015), that
a continuance without a finding is a conviction under the
statute governing the licensure of commercial drivers, G. L.
c. 90F, does not disturb this long-standing principle. Our
conclusion in that case was limited to the interpretation of the
 11

finding, a guilty finding is not entered and the case is

"continued without a finding to a specific date thereupon to be

dismissed, such continuance conditioned upon compliance with

specific terms and conditions or that the defendant be placed on

probation." G. L. c. 278, § 18. See Commonwealth v. Mosher,

455 Mass. 811, 822 (2010) ("A continuance without a finding

closely resembles a sentence of straight probation, except that

the former is not a 'conviction' under State law if the

defendant successfully completes the period of probation or

complies with the terms and conditions set by a judge").

Although a judge may enter a guilty finding in a case continued

without a finding after a defendant fails to comply with the

terms of probation, a person charged with a sex offense and

granted a continuance without a finding is not convicted of the

sex offense unless and until there is such a guilty finding.

See id. Therefore, in the absence of a prior sex offense

conviction, a defendant whose sex offense charge is continued

without a finding does not fall within the definition of "sex

word "conviction" in the particular statute at issue, G. L.
c. 90F. Id. at 335. That statute defines "conviction" far more
broadly than its usual meaning under Massachusetts law to
include "any determination that a person has violated or failed
to comply with the law in a court of original jurisdiction."
G. L. c. 90F, § 1. The Legislature adopted this broad
definition of "conviction" in order to comply with the
requirements of the Federal Commercial Motor Vehicle Safety Act
and remain eligible for Federal highway funds. Tirado, supra at
335, 340.
 12

offender" under G. L. c. 6, § 178C. See Doe, Sex Offender

Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass.

764, 777 (2008).

Because a defendant charged with a sex offense and granted

a continuance without a finding is not a sex offender, he or she

has no obligation to register with the board and is not subject

to classification by it. See G. L. c. 6, § 178C. See also

G. L. c. 6, §§ 178D, 178L. In Commonwealth v. Cory, 454 Mass.

559, 570 (2009), we noted that GPS monitoring "burdens liberty

in two ways: by its permanent, physical attachment to the

offender, and by its continuous surveillance of the offender's

activities." We added:

"As 'continuing, intrusive, and humiliating' as a yearly
registration requirement might be, a requirement
permanently to attach a GPS device seems dramatically more
intrusive and burdensome. There is no context other than
punishment in which the State physically attaches an item
to a person, without consent and also without consideration
of individual circumstances, that must remain attached for
a period of years and may not be tampered with or removed
on penalty of imprisonment. Such an imposition is a
serious, affirmative restraint." (Footnotes omitted.)

Id., quoting Doe, Sex Offender Registry Bd. No. 8725 v. Sex

Offender Registry Bd., 450 Mass. 780, 792 (2008). See Hanson

H., 464 Mass. at 815 ("GPS monitoring is inherently

stigmatizing, a modern-day 'scarlet letter'"). We think it

unlikely that the Legislature intended to impose a restraint on

liberty that is "dramatically more intrusive and burdensome"
 13

than sex offender registration on every defendant whose sex

offense case is continued without a finding, where the

Legislature did not choose to subject those same defendants to

sex offender registration.

The legislative history of the act supports our conclusion

that the Legislature intended to mandate GPS monitoring under

§ 47 only for individuals convicted of sex offenses. As we

discussed previously in Raposo, 453 Mass. at 746-748, and Hanson

H., 464 Mass. at 812, § 47 originated in the House of

Representatives. The original bill extended the statute of

limitations only for certain sex offenses, and included no

provisions relating to GPS monitoring. 2006 House Doc. No.

5131. See Raposo, supra at 746. On July 26, 2006, the House of

Representatives adopted a substitute bill that, among other

provisions, provided that any individual "convicted of a sex

offense" who was classified as a level two or level three sex

offender under G. L. c. 6, § 178K, was required to wear a GPS

device for the duration of any court-ordered term of "post-

release supervision." 2006 House Doc. No. 5234, § 7. See

Raposo, supra at 747. However, the bill suffered from numerous

internal inconsistencies. Among them, it imposed GPS monitoring

on convicted individuals as a "condition[] of post-release

supervision," a phrase that would include parolees, but the

Commissioner of Probation (commissioner) was designated in the
 14

bill to administer the GPS monitoring, although the parole board

was to determine whether the "convicted individual entered a

geographic exclusion zone." 2006 House Doc. No. 5234, § 7. On

July 27, 2006, the Senate amended the bill and resolved these

inconsistencies by splitting the GPS monitoring section into two

sections: one (§ 7 of the act) that mandated GPS monitoring for

any person "under court ordered parole supervision or under

community parole supervision for life" for any sex offense, and

another (which later became § 8 of the act) that mandated GPS

monitoring for any person placed on probation for any sex

offense. See 2006 Senate J. 2678-2679. See also Raposo, supra.

The Senate bill was enacted without substantive changes. Id.,

citing St. 2006, c. 303, §§ 7-8.

"There is no evidence in the legislative history to

indicate or suggest that the Senate intended by its amendments

to expand the scope of the legislation beyond convicted

individuals; the more reasonable conclusion to draw is the one

implicit in the structure and language of the amendments

themselves, namely, that the Senate was attempting to resolve

the obvious jurisdictional confusion in the House version by

clarifying that convicted sex offenders on probation would have

their GPS devices monitored by the commissioner, and those on

parole would have theirs monitored by the parole board."

Raposo, 453 Mass. at 747-748. Although the term "convicted of a
 15

sex offense" was not included in the Senate bill, § 7 of the

act, governing parolees, was effectively limited to those

convicted of a sex offense, because no person may be on parole

or under community parole supervision for life 5 for a sex offense

without having been convicted of a sex offense. A person may be

on probation without having been convicted of a crime, that is,

pretrial probation or probation imposed pursuant to a

continuance without a finding, but there is nothing in the

legislative history that suggests that the Legislature intended

to expand the set of probationers subject to GPS monitoring

beyond those convicted of sex offenses.

Moreover, if we had any doubt that the Legislature intended

to apply the GPS monitoring requirement of § 47 only to

defendants who are placed on probation upon conviction of a sex

offense (and we do not), the rule of lenity requires us to give

the defendant the benefit of that doubt. See Commonwealth v.

Carrion, 431 Mass. 44, 45-46 (2000), quoting Commonwealth v.

Roucoulet, 413 Mass. 647, 652 (1992) ("If the statutory language

'can plausibly be found to be ambiguous,' the rule of lenity

requires the defendant be given 'the benefit of the

ambiguity'"). See also Hanson H., 464 Mass. at 813.

Conclusion. For these reasons, we answer "no" to the

reported question "[w]hether the provisions of [G. L. c. 265,

5
See note 3, supra.
 16

§ 47,] appl[y] to a defendant who was placed on a [c]ontinuance

[w]ithout a [f]inding for a violation of [G. L. c. 265, § 13H]." 6

We therefore vacate the order imposing mandatory GPS supervision

under G. L. c. 265, § 47, and remand the case to the District

Court judge for further proceedings consistent with this

opinion.

So ordered.

6
Because we conclude that the Legislature did not intend
G. L. c. 265, § 47, to apply to persons charged with sex
offenses whose cases are continued without a finding, we need
not reach the defendant's arguments that the statute would be
unconstitutional if it did apply to these cases. See
Commonwealth v. Raposo, 453 Mass. 739, 743 (2009), quoting
Commonwealth v. Paasche, 391 Mass. 18, 21 (1984) ("We do not
decide constitutional questions unless they must necessarily be
reached"); Fleet Nat'l Bank v. Commissioner of Revenue, 448
Mass. 441, 451 n.9 (2007), quoting 1010 Memorial Drive Tenants
Corp. v. Fire Chief of Cambridge, 424 Mass. 661, 663 (1997)
("issues of statutory interpretation should be resolved prior to
reaching any constitutional issue").