Commonwealth v. Samuel S., a juvenile

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SJC-12135

COMMONWEALTH vs. SAMUEL S., a juvenile.

Hampden. November 9, 2016. - February 17, 2017.

Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, &
Budd, JJ.

Sex Offender. Sex Offender Registration and Community
Notification Act. Youthful Offender Act. Delinquent
Child. Global Positioning System Device. Juvenile Court,
Delinquent child, Probation. Practice, Criminal, Juvenile
delinquency proceeding, Probation.

Complaint received and sworn to in the Hampden County
Division of the Juvenile Court Department on August 21, 2014.

Indictments found and returned in the Superior Court
Department on October 3, 2014.

Motions for relief from conditions of probation were heard
by Judith J. Phillips, J., and a motion for reconsideration was
considered by her.

The Supreme Judicial Court granted an application for
direct appellate review.

Laura Chrismer Edmonds for the juvenile.
Cynthia Cullen Payne, Assistant District Attorney, for the
Commonwealth.
 2

Ryan M. Schiff & Caroline Alpert, Committee for Public
Counsel Services, for Youth Advocacy Division of the Committee
for Public Counsel Services, amicus curiae, submitted a brief.

BOTSFORD, J. The juvenile was adjudicated both a youthful

offender and a delinquent juvenile as the result of a single

sexual assault. A Juvenile Court judge ordered the juvenile to

register as a sex offender and to submit to global positioning

system (GPS) monitoring, concluding that both consequences,

under the relevant statutes, were mandatory. The juvenile

argues that this conclusion was error. He argues first that the

pertinent section of the sex offender registration statute,

G. L. c. 6, § 178E (f), required the judge to make an

individualized determination whether the juvenile must register

as a sex offender because he was not "sentenced to immediate

confinement" within the meaning of the statute. He also argues

that the GPS monitoring statute, G. L. c. 265, § 47, as

interpreted by this court in Commonwealth v. Hanson H., 464

Mass. 807 (2013), does not require youthful offenders to submit

to GPS monitoring. We agree with the juvenile on both points.

Accordingly, we vacate the judge's decision.1

1
We acknowledge the amicus brief of the Youth Advocacy
Division of the Committee for Public Counsel Services.
 3

Background. 1. Facts.2 This case stems from a sexual

assault that occurred in June, 2014. The juvenile, who was

seventeen years old at the time, was at home with the victim,

his five-year-old half-sister. The victim's father returned

home and entered the living room. There, he saw the victim

being pushed to the ground and noticed that the juvenile sitting

on the couch "with his drawers and his pants at his ankles."

The victim was naked from the waist down.

The juvenile initially denied any wrongdoing. The victim

later described that the juvenile had touched her genitals and

chest area, made her touch his genitals, and penetrated her

labia with his penis in a way that caused her pain.

2. Prosecution, plea, and sentencing. Two juvenile

delinquency complaints issued, charging the juvenile with one

count of indecent assault and battery on a child under fourteen,

G. L. c. 265, § 13B, and one count of rape of a child with

force, G. L. c. 265, § 22A. Three youthful offender indictments

also issued, charging the juvenile with one count of rape of a

child with force, G. L. c. 265, § 22A, and two counts of

aggravated rape of a child, G. L. c. 265, § 23A.

In January, 2015, all charges were resolved pursuant to a

plea agreement. The juvenile admitted to sufficient facts to

2
We accept the underlying facts, which are not in dispute,
from the juvenile's plea colloquy.
 4

warrant an adjudication as a youthful offender on the count of

rape of a child with force and as a delinquent juvenile on the

count of indecent assault and battery of a child. The

Commonwealth filed a nolle prosequi on the remaining three

charges. The judge accepted the parties' joint sentencing

recommendation. Pursuant to the recommendation, the judge

sentenced the juvenile on the youthful offender count to a

combination sentence as described in G. L. c. 119, § 58 (b). As

part of that sentence, the juvenile was committed to the

Department of Youth Services (DYS). The juvenile was also

committed to DYS on the juvenile delinquency count.

3. Registration and GPS monitoring. After the plea and

sentencing, the juvenile filed two motions in which he sought

relief from mandatory sex offender registration under G. L.

c. 6, § 178E (f), and relief from mandatory GPS monitoring under

G. L. c. 265, § 47, and this court's opinion in Hanson H., 464

Mass. 807. In February, 2015, the judge ruled that she had

discretion to relieve the juvenile of both the registration and

the GPS monitoring requirements, and ordered a risk assessment

evaluation to enable her to determine whether either, or both,

should apply to the juvenile. The Commonwealth moved for

reconsideration, which the juvenile opposed. The judge then

issued a revised decision in June, 2015, in which she reversed

her position, ultimately concluding that the relevant statutes
 5

permitted her no discretion to relieve the juvenile from sex

offender registration or GPS monitoring.

4. Juvenile's appeal. The juvenile appealed from the

judge's revised decision.3 We allowed the juvenile's application

for direct appellate review and transferred the case to this

court.

Discussion. 1. Jurisdiction. The Commonwealth first

argues that the juvenile's appeal regarding mandatory

registration is not properly before the court because he has not

exhausted all administrative remedies or sought relief under

G. L. c. 211, § 3.4 We agree that the juvenile has not followed

the appropriate procedure to obtain review of this claim. See

Commonwealth v. Ronald R., 450 Mass. 262, 266-267 (2007) (no

automatic right of appeal when juvenile is denied relief from

registration obligation). The appropriate procedure would have

been to file a petition for relief under G. L. c. 211, § 3, in

the county court. See id.

3
The Juvenile Court judge stayed the juvenile's sex
offender registration pending the outcome of this appeal. The
judge also relieved the juvenile of the obligation to submit to
global positioning system (GPS) monitoring until he was released
from a DYS secure treatment facility and placed into the
community.
4
The Commonwealth does not extend its jurisdictional
argument to the GPS monitoring issue, but in any event, we would
allow the appeal. Cf. Commonwealth v. Lapointe, 435 Mass. 455,
458-459 (2001) (allowing direct review of conditions of
probation because case had been fully briefed and presented
issues of public interest).
 6

Nonetheless, it will serve a substantial public interest to

resolve the questions presented by the juvenile's appeal, these

questions are likely to arise again, and the case has been fully

briefed and argued before the court. Accordingly, we will

answer the questions in this. See Hanson H., 464 Mass. at 808

n.2 (deciding merits of appeal despite mootness, when issue

raised was of significant public interest, fully briefed, and

very likely to arise again in similar circumstances, yet evade

review). See also Commonwealth v. Doe, 420 Mass. 142, 143

(1995), overruled on other grounds by Commonwealth v. Pon, 469

Mass. 296 (2014) (exercising discretion to comment on issues

presented despite fact that report from lower court was not

properly before court); Cobb v. Cobb, 406 Mass. 21, 24 n.2

(1989) (citing authority provided by G. L. c. 211, § 3, to

answer improperly reported questions).

2. Registration as a sex offender. The first question

presented is whether G. L. c. 6, § 178E (f) (§ 178E [f]),5

5
The full text of G. L. c. 6, § 178E (f) (§ 178E [f]),
provides:

"In the case of a sex offender who has been convicted
of a sex offense or adjudicated as a youthful offender or
as a delinquent juvenile by reason of a sex offense, on or
after December 12, 1999, and who has not been sentenced to
immediate confinement, the court shall, within [fourteen]
days of sentencing, determine whether the circumstances of
the offense in conjunction with the offender's criminal
history indicate that the sex offender does not pose a risk
of reoffense or a danger to the public. If the court so
 7

permitted the judge discretion to relieve the juvenile of the

requirement to register as a sex offender. That is a question

of statutory construction subject to de novo review by this

court. See Commonwealth v. Ventura, 465 Mass. 202, 208 (2013).

Section 178E (f) permits a sentencing judge, in certain sex

offense cases, to conduct an individualized determination of

whether the sex offender must register as such. The section

contemplates three categories of sex offenders: (1) an adult

who has been convicted of a sex offense, (2) a juvenile who has

been adjudicated a youthful offender by reason of a sex offense,

and (3) a juvenile who has been adjudicated delinquent by reason

of a sex offense. Id. In any case where the sentencing judge

has not sentenced such a sex offender "to immediate

confinement," the judge is to determine, within fourteen days of

sentencing, "whether the circumstances of the offense in

conjunction with the offender's criminal history indicate that

determines, the court shall relieve such sex offender of
the obligation to register under [§§] 178C to 178P,
inclusive. The court may not make such a determination or
finding if the sex offender has been determined to be a
sexually violent predator; has been convicted of two or
more sex offenses defined as sex offenses pursuant to the
Jacob Wetterling Crimes Against Children and Sexually
Violent Offender Registration Act, 42 U.S.C. [§] 14071,
committed on different occasions; has been convicted of a
sex offense involving a child or a sexually violent
offense; or if the sex offender is otherwise subject to
minimum or lifetime registration requirements as determined
by the board pursuant to [§] 178D." (Emphases added.)
 8

the sex offender does not pose a risk of reoffense or a danger

to the public." Id. If the judge so determines, and none of

the statutory exceptions applies,6 then the judge is to relieve

the individual from the obligation to register as a sex

offender. Id.

Given the language of § 178E (f), the narrow question we

confront is whether the juvenile in this case, who has been

committed to DYS both as a youthful offender and as a delinquent

juvenile, has been "sentenced to immediate confinement" within

the meaning of § 178E (f).

a. Meaning of "sentenced to immediate confinement." We

begin with the plain meaning of the statutory language. See

Commonwealth v. Mogelinski, 466 Mass. 627, 633 (2013), S.C., 473

Mass. 164 (2015). The terms "sentenced," "confinement," and

"immediate confinement" are not defined within the sex offender

registration statute. See G. L. c. 6, § 178C (definitions

6
Several enumerated exceptions in § 178E (f) bar a judge
from applying its relief provision. The Commonwealth does not
argue for, and the record does not support, the application of
any of those exceptions here. In particular, there is no
indication that the juvenile has been "determined to be a
sexually violent predator" or that he is "otherwise subject to
minimum or lifetime registration requirements" under § 178D.
See G. L. c. 6, § 178E (f), third sentence. Further, having
been adjudicated a youthful offender and a delinquent juvenile,
the juvenile has not been "convicted" of any of the exception-
triggering offenses. See Commonwealth v. Connor C., 432 Mass.
635, 646 (2000) (reaffirming "long-standing jurisprudence that
an 'adjudication' that a child has violated a law generally is
not a 'conviction' of a crime").
 9

applicable to §§ 178C to 178P). As a result, we look to

dictionary definitions as a guide to a term's plain or ordinary

meaning. See, e.g., Commonwealth v. Palmer, 464 Mass. 773,

778-779 (2013).

The term "confinement" is defined, in a legal context, to

mean "[t]he act of imprisoning or restraining someone; the

quality, state, or condition of being imprisoned or restrained."

Black's Law Dictionary, at 362 (10th ed. 2014). More generally,

to "confine" means "to hold within bounds"; "restrain from

exceeding boundaries"; "to keep in narrow quarters"; "imprison";

"to prevent free outward passage or motion of"; "secure,

enclose, fasten"; or "to keep from leaving accustomed quarters

(as one's room or bed) under pressure of infirmity, childbirth,

detention, [or] business reasons." Webster's Third New

International Dictionary 476 (1993).

A "sentence" is "[t]he judgment that a court formally

pronounces after finding a criminal defendant guilty" or "the

punishment imposed on a criminal wrongdoer." Black's Law

Dictionary 1569 (10th ed. 2014). Similarly, a "sentence" can be

"a decision or judicial determination of a court or tribunal";

"the order by which a court or judge imposes punishment or

penalty upon a person found guilty"; "to decree, decide, or

announce judicially"; or "to prescribe the penalty or punishment

of." Webster's Third New International Dictionary 2068 (1993).
 10

Read together, these definitions indicate that a "sentence"

to "confinement" ordinarily will involve a court or judge

imposing, as a consequence of or penalty for an illegal act, a

form of spatial restraint within defined and obvious physical

boundaries, including, as one example, incarceration.7

b. Dispositional options for youthful offenders and

delinquent juveniles. To understand whether youthful offenders

and delinquent juveniles can be "sentenced to immediate

confinement" within the definitions just discussed requires an

7
This definition accords with our case law interpreting the
term "confinement," albeit in a different context. See
Commonwealth v. Morasse, 446 Mass. 113, 121 (2006) (interpreting
term "in confinement" to mean "confinement in a jail or prison,
or confinement in some comparably secure and restrictive
institutional setting"). It also fits comfortably with the
Legislature's use of the term in several other contexts. See,
e.g., G. L. c. 22C, § 37 ("[certain notification required prior
to release] of any person confined in a penal or reformatory
institution of the commonwealth . . . or of any person confined
in any facility . . . or in the Bridgewater state
hospital . . ."); G. L. c. 123A, § 14 (a) ("The person named in
the [sexually dangerous person] petition shall be confined to a
secure facility for the duration of the trial"); G. L. c. 126,
§ 5 ("If there are several jails in a county, the sheriff may
cause the prisoners to be confined in any of them"); G. L.
c. 127, § 129C ("For the satisfactory conduct of a prisoner
confined in a prison camp, the commissioner [of the department
of correction] may grant . . . a further deduction of sentence
. . . for each month while confined in a prison camp"); G. L.
c. 176A, § 8A (i) ("Nothing in this section shall be construed
to require a non-profit hospital service corporation to pay for
mental health benefits or services: which are provided to a
person . . . who is presently incarcerated, confined or
committed to a jail, house of correction or prison, or custodial
facility in the department of youth services within the
commonwealth or one of its political subdivisions"). (Emphases
added.)
 11

understanding of the range of dispositional outcomes available

in those cases. For a youthful offender, a Juvenile Court judge

may order one of three consequences: (1) a sentence provided by

law (i.e., an adult sentence); (2) a combination sentence (which

combines a commitment to DYS with a suspended adult sentence);

or (3) commitment to DYS until the age of twenty-one. G. L.

c. 119, § 58, third par. To select among these options, the

judge must conduct a sentencing recommendation hearing that

takes into account a host of case-specific factors.8 G. L.

c. 119, § 58, fourth par.

With respect to a delinquent juvenile, a Juvenile Court

judge also has a range of dispositional options, including (1)

commitment to DYS, (2) placement of the juvenile in the care of

a probation officer, and (3) placement of the case on file.

G. L. c. 119, § 58, second par. The judge has broad discretion

to select among these options, although the statute does not

require the same sort of presentence hearing as it does for

8
The sentencing judge is instructed to consider the
following nonexhaustive list of factors: "the nature,
circumstances, and seriousness of the offense; victim impact
statement; a report by a probation officer concerning the
history of the youthful offender; the youthful offender's court
and delinquency records; the success or lack of success of any
past treatment or delinquency dispositions regarding the
youthful offender; the nature of services available through the
juvenile justice system; the youthful offender's age and
maturity; and the likelihood of avoiding future criminal
conduct." G. L. c. 119, § 58, fourth par.
 12

youthful offenders. See R.L. Ireland, Juvenile Law § 1.62 (2d

ed. 2006); G. L. c. 119, § 58, second and fourth pars.

Two additional observations are in order with respect to

the consequences of a commitment to DYS. First, a separate

statute describes the various ways that DYS may treat a person

committed to its custody. See G. L. c. 120, § 6.9 Two of them

explicitly involve "confinement," while three of them do not.

See id. The policies of DYS also describe a spectrum of

placement options for juveniles, ranging from nonresidential,

community-based placement to "staff secure" facilities to

"hardware secure" facilities. Department of Youth Services,

9
General Laws c. 120, § 6, provides:

"When a person has been committed to the department of
youth services, it may after an objective consideration of
all available information --

"(a) Permit him his liberty under supervision and upon
such conditions as it believes conducive to law-abiding
conduct; or --

"(b) Order his confinement under such conditions as it
believes best designed for the protection of the public; or
--

"(c) Order reconfinement or renewed release as often
as conditions indicate to be desirable; or --

"(d) Revoke or modify any order, except an order of
final discharge, as often as conditions indicate to be
desirable; or --

"(e) Discharge him from control with notice to the
court . . . when it is satisfied that such discharge is
consistent with the protection of the public."
 13

Official Policy No. 01.01.04(a) (eff. July 1, 2004). See

Commonwealth v. Carrion, 431 Mass. 44, 46 (2000) (discussing

"wide range of facilities available for placements" of those in

DYS custody). See also United States v. Gibbons, 553 F.3d 40,

45 (1st Cir. 2009) (when Juvenile Court judge commits juvenile

adjudicated delinquent to DYS custody, "DYS then determines the

placement appropriate for each offender, which could range from

parental release to confinement at a secure facility"). Second,

once a judge commits a youthful offender or a delinquent

juvenile to DYS, the actual terms of that commitment, as a

general matter, are wholly within the discretion of DYS, an

executive agency.10 See G. L. c. 120, § 6. See also Gibbons,

supra. We have located no part of the law, and the parties have

identified none, giving a judge the power to order DYS to place

the juvenile in, say, a secure facility as opposed to placing

him or her on supervised release, or vice versa.

c. Whether commitment to DYS constitutes being "sentenced

to immediate confinement." We now return to the interpretive

question that is at issue here: whether a commitment to DYS

10
Adjudications of gun-related charges are treated somewhat
differently. See G. L. c. 119, § 58, seventh & eighth pars. In
these cases, the seventh and eighth paragraphs of § 58 require
the sentencing judge to commit the juvenile to DYS, and then
they require the DYS commissioner to detain the juvenile in a
facility. In other words, the detention results from a two-step
process involving, first, commitment to DYS by the sentencing
judge and, second, mandatory detention in a facility by the DYS
commissioner.
 14

constitutes being "sentenced to immediate confinement" under

§ 178E (f).

The juvenile argues that a commitment to DYS does not

constitute being "sentenced to immediate confinement" for

purposes of § 178E (f). Under this interpretation, no

delinquent juvenile can be "sentenced to immediate confinement,"

because a commitment to DYS is the most severe sentence a

delinquent juvenile can receive. See G. L. c. 119, § 58, second

par. Such a reading is problematic if the inclusion of the

phrase "or as a delinquent juvenile" in the first sentence of

§ 178E (f) indicates an understanding by the Legislature that

some delinquent juveniles would be subject to immediate

confinement while others would not.11 Moreover, under G. L. c.

120, § 6, DYS is expressly authorized to order the "confinement"

and "reconfinement" of those in its custody. See G. L. c. 120,

§ 6 (b), (c). The end result for those juveniles is a sentence

that includes a period of immediate confinement.

On the other hand, the Commonwealth proposes that a

commitment to DYS always constitutes "immediate confinement" for

the purposes of § 178E (f). This interpretation, too, is

11
The inclusion of "a youthful offender" in the first
sentence of § 178E (f) does not present exactly the same issue,
insofar as a youthful offender may be sentenced like an adult,
G. L. c. 119, § 58, third par., and if a judge were to do so,
the judge presumably could choose to sentence the youthful
offender to "immediate confinement," or not.
 15

problematic insofar as it conflicts with the plain language and

structure of G. L. c. 120, § 6, which describes the power of

DYS, with respect to a juvenile committed to it, to "[p]ermit

[the juvenile] his liberty under supervision and upon such

conditions as [DYS] believes conducive to law-abiding conduct."

G. L. c. 120, § 6 (a). In other words, the Commonwealth would

have us treat even those juveniles who are, upon commitment to

DYS, allowed their "liberty under supervision" as having been

"sentenced to immediate confinement." That interpretation also

makes little sense insofar as it would automatically require

such a juvenile to register as a sex offender even though § 178E

(f) expressly directs a judge to determine in the first instance

whether an adult whom a judge has sentenced to probation -- a

form of "liberty under supervision" -- shall be required to

register as a sex offender. See Commonwealth v. Dalton, 467

Mass. 555, 558 (2014) ("According to the plain language of

§ 178E [f], where a judge sentences a defendant to a term of

probation rather than a sentence of 'immediate confinement,' the

judge for many defendants has the discretion" permitted by

§ 178E [f]).

Furthermore, it is not necessarily clear that a commitment

to DYS constitutes a "sentence" in the conventional sense. As

the definitions cited supra indicate, ordinarily a "sentence"

results from a judge imposing a particular penalty on an
 16

offender. But in the case of juveniles committed to DYS, the

Juvenile Court judge generally has no authority to dictate the

terms of a juvenile's commitment to DYS, and a commitment to DYS

can result in a variety of consequences for the juvenile -- some

that look more like confinement, others less so. See G. L.

c. 120, § 6.

What we are left with, then, is a statute whose plain

language and structure create a vexing choice. As just

explained, if we consider a judge's sentence of commitment to

DYS as a sentence to immediate confinement, we must ignore parts

of G. L. c. 119, § 58, and G. L. c. 120, § 6; if, on the other

hand, we do not consider a commitment to be a sentence to

immediate confinement, our interpretation necessitates ignoring

other parts of G. L. c. 119, § 58, and G. L. c. 120, § 6, and

disregarding as well the reality that when a judge commits

delinquent juveniles and youthful offenders to DYS, the judge

has essentially no control over the conditions that DYS imposes.

The parties have not directed us to any legislative history, and

we have located none, to help resolve this tension between the

two alternatives.

However, "[u]nder the rule of lenity, 'if we find that the

statute is ambiguous or are unable to ascertain the intent of

the Legislature, the defendant is entitled to the benefit of any

rational doubt.'" Commonwealth v. Richardson, 469 Mass. 248,
 17

254 (2014), quoting Commonwealth v. Constantino, 443 Mass. 521,

524 (2005). We have applied the rule of lenity "to sentencing

as well as substantive provisions." Richardson, supra at 254,

quoting Commonwealth v. Gagnon, 387 Mass. 567, 569 (1982), cert.

denied, 464 U.S. 815 (1983). Of particular pertinence here, we

also have invoked the rule in interpreting § 178E (f). See

Ventura, 465 Mass. at 212.

Independent of the rule of lenity, we have said that

interpreting an ambiguous statute against a juvenile would

conflict with the statutory command of G. L. c. 119, § 53. See

Hanson H., 464 Mass. at 813-814. Section 53 requires a liberal

construction of the juvenile justice laws in order to ensure

that juveniles who commit offenses are "treated, not as

criminals, but as children in need of aid, encouragement, and

guidance."12 Consonant with that command is the principle, woven

into the fabric of our juvenile justice system, that a Juvenile

Court judge has broad discretion regarding the disposition of a

case in order to ensure that the rehabilitative aim of § 53 is

realized. See Hanson H., supra at 814, and cases cited.

Interpreting an ambiguous provision in a statute to require sex

12
Section 53 mandates that this liberal construction shall
apply to G. L. c. 119, §§ 52–63. Obviously, G. L. c. 6, § 178E
(f), does not fall directly within this range of sections.
However, this case requires us to interpret § 178E (f) in a way
that necessitates an understanding of the dispositional options
available under G. L. c. 119, § 58. Therefore, the command of
§ 53 applies here.
 18

offender registration for a juvenile and to foreclose an

individualized determination by a Juvenile Court judge would

offend these principles.

These reasons persuade us that it is appropriate to

construe the ambiguous language in § 178E (f) at issue to mean

that where a Juvenile Court judge commits a juvenile on a

delinquency complaint or a youthful offender indictment to DYS

as a disposition on a sex offense, that is not a "sentence[] to

immediate confinement" within the meaning of the statute.13 In

this regard, it is important to emphasize that the availability

in such cases of an individualized judicial determination under

§ 178E (f) does not mean every juvenile adjudicated as

delinquent will be relieved of the obligation to register as a

sex offender. It means only that in every case involving a

delinquent juvenile, the judge is required to conduct an

individualized determination in order to decide the issue.14 The

13
Because we conclude only that a commitment to DYS does
not constitute a sentence of immediate confinement for purposes
of § 178E (f), our ruling does not apply to dispositions that do
not involve a commitment to DYS.
14
Quite apart from the rule of lenity and guiding
principles of juvenile law that have persuaded us to interpret
"sentenced to immediate confinement" in the first sentence of
§ 178E (f) as we do, the language and structure of the first
sentence of § 178E (f) offer direct textual support for this
interpretation. The first sentence begins by identifying the
universe of sex offenders that it covers: convicted adult sex
offenders, adjudicated youthful offender sex offenders, and
delinquent juvenile sex offenders -- and then narrows this
 19

conclusion of the judge in this case that § 178E (f) did not

authorize her to make such a determination was incorrect.15

3. GPS monitoring. The juvenile also argues that G. L.

c. 265, § 47 (§ 47), does not require youthful offenders to

submit to GPS monitoring upon release from custody. For

support, he points to this court's opinion in Hanson H., 464

Mass. at 808, which held that § 47 does not impose GPS

monitoring as a mandatory condition of probation for delinquent

juveniles who have been adjudicated sex offenders. The

universe by defining a single characteristic that they must
exhibit -- not being sentenced to immediate confinement -- as a
condition precedent to trigger the judge's authority (and
obligation) to determine whether any such sex offender should be
required to register. When the structure of the first sentence
is considered in this way, the Legislature's inclusion of
delinquent juvenile sex offenders may be understood as simply a
reference to the fact that they are part of the universe of sex
offenders to whom the sex offender registration statute, G. L.
c. 6, §§ 178C-178P, applies. That this particular group of sex
offenders, by definition, may not be subject to immediate
confinement simply means that they always fit within the
narrowed universe of offenders for whom the sentencing judge
will be required to consider individually whether they should be
required to register, as opposed to having the registration
requirement imposed automatically.
15
It appears from the judge's revised decision that she
contemplated that the juvenile in this case, upon commitment to
DYS, would be confined in a secure DYS treatment facility.
However, for the reasons discussed in the text, the fact that
DYS ultimately may have sent this particular juvenile to a
secure facility does not change our conclusion that, for
purposes of § 178E (f), a commitment to DYS does not constitute
being "sentenced to immediate confinement." The analysis hinges
on the lack of clarity in the law about whether DYS commitments
writ large can be equated with a judicial sentence of immediate
confinement -- not whether, in a particular case, a DYS
commitment actually includes a form of immediate confinement.
 20

Commonwealth argues that because the law treats youthful

offenders more like adults than like delinquent juveniles, the

holding of Hanson H. does not apply here and youthful offenders

should be subject to the mandatory GPS monitoring called for in

§ 47.

Again, we review this question of statutory interpretation

de novo. See Ventura, 465 Mass. at 208. We conclude the

juvenile's reading of the statute is correct.

a. The holding of the Hanson H. case. In the Hanson H.

case, the court observed that neither the plain language of

§ 4716 nor its legislative history conclusively resolved whether

the Legislature intended to require mandatory GPS monitoring for

16
The relevant portion of G. L. c. 265, § 47, provides:

"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, 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 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."
 21

juvenile probationers. Hanson H., 464 Mass. at 810-813. As a

result, the court looked to G. L. c. 119, § 53, which provides

that our juvenile justice laws "shall be liberally construed" so

that, "as far as practicable," juveniles who commit offenses

"shall be treated, not as criminals, but as children in need of

aid, encouragement and guidance." See Hanson H. supra at 814.

Based on that statutory command and in light of the ambiguity of

§ 47, we held that mandatory GPS monitoring pursuant to § 47

does not apply to juveniles who have been adjudicated

delinquent. Hanson H., supra at 816.

The court in the Hanson H. case specifically limited its

holding "to juveniles placed on probation as a result of being

adjudicated delinquent on a complaint." Id. at 808 n.1. We

pointedly did not address whether § 47 applies to juveniles

placed on probation after being adjudicated a youthful offender.

Id. That issue arises in this case.

b. Application of Hanson H. principles. We see no

compelling reason why the principles articulated in the Hanson

H. case should not apply equally to youthful offenders, and

therefore reach the same conclusion as the Hanson H. case: the

Legislature did not intend to require GPS monitoring on youthful

offender probationers in the absence of an individualized

determination by the sentencing judge that such a condition

would be appropriate.
 22

This conclusion is consonant with the command of § 53 --

that, as far as practicable, we must treat juveniles "not as

criminals, but as children in need of aid, encouragement and

guidance." Indeed, § 53 includes both youthful offenders and

delinquent juveniles within its ambit. See G. L. c. 119, §§ 53,

54, 58. Thus, the force of the command in § 53 is not blunted

merely because we are now contemplating youthful offenders, as

opposed to delinquent juveniles. See Commonwealth v. Anderson,

461 Mass. 616, 630, cert. denied, 133 S. Ct. 433 (2012)

(youthful offenders "not exclude[d] . . . from the dictates of

§ 53").

Additionally, at the heart of the youthful offender scheme

is a "logical continuum" of culpability that spans the gap

between delinquent juveniles and adult criminals. Commonwealth

v. Connor C., 432 Mass. 635, 645-646 (2000), discussing G. L.

c. 119, § 58. As discussed above, when a juvenile is

adjudicated as a youthful offender, the judge, at sentencing,

can treat the individual more like an adult (a sentence as

provided by law), more like a delinquent juvenile (commitment to

DYS), or somewhere in between (a combination sentence), G. L.

c. 119, § 58, third par., and must conduct a sentencing

recommendation hearing that takes into account a host of case-

specific factors, G. L. c. 119, § 58, fourth par. This

individualized scheme for sentencing youthful offenders is
 23

inconsistent with an interpretation of § 47 that would uniformly

mandate GPS monitoring as a condition of probation for all

youthful offenders. Instead, as in Hanson H., a Juvenile Court

judge retains discretion to impose such a condition after

conducting an individualized determination "that the need for

GPS monitoring to protect the safety of the victim and

prospective victims over[rides] the damage that wearing such a

device may have on the child's rehabilitation." Hanson H., 464

Mass. at 816.

The Commonwealth presents, in essence, two arguments to the

contrary. We find neither persuasive.

First, the Commonwealth argues that the use of the terms

"probationer" and "offender" in § 47 supports its reading of the

law because, under G. L. c. 119, § 58, a youthful offender's

sentence may include a period of probation supervised by the

adult probation department, as opposed to the Juvenile Court

probation department, once the youthful offender attains the age

of twenty-one. (Indeed, such a result is contemplated by the

combination sentence imposed on the juvenile in this case.) But

this argument has little force where the youthful offender in

fact faces no period of adult probation (i.e., when the youthful

offender is sentenced only to a commitment to DYS). See G. L.

c. 119, § 58 (c). Even if a youthful offender does face a

period of adult probation, the Commonwealth's argument is
 24

unavailing for the reasons articulated in Hanson H., where we

observed that much of § 47 "suggests that the Legislature

understood that the probationers subject to mandatory GPS

monitoring would be adults," not juveniles. Hanson H., 464

Mass. at 810.

Second, the Commonwealth notes that the Youthful Offender

Act, St. 1996, c. 200, was passed in response to societal

concerns about violent crimes committed by juveniles and,

accordingly, created the youthful offender category of

adjudications in which some of the protections and privileges

afforded to delinquent juveniles did not apply. See

Commonwealth v. Clint C., 430 Mass. 219, 222–223 (1999). The

implication of this development, according to the Commonwealth,

is that youthful offenders are categorically more threatening to

public safety than delinquent juveniles, and therefore the

rationale of Hanson H. should not apply to youthful offenders.

The argument fails. Although youthful offenders are not

afforded some of the protections provided to delinquent

juveniles, nothing in the law has eroded the mandate of § 53 to

treat, as far as practicable, all juveniles "not as criminals,

but as children in need of aid, encouragement and guidance."

Moreover, our conclusion today, as in Hanson H., leaves intact

the discretion of Juvenile Court judges to impose GPS monitoring

as a condition of probation in appropriate cases for youthful
 25

offenders. Where the Commonwealth is able to demonstrate that

the need for GPS monitoring to protect public safety overrides

the damage that wearing such a device is likely to have on the

juvenile's rehabilitation, there is nothing to stop a Juvenile

Court judge from ordering such a condition. See Hanson H., 464

Mass. at 816. We hold today only that the mandatory GPS

monitoring in § 47 does not apply to youthful offenders.

Conclusion. For the foregoing reasons, the Juvenile Court

judge's decision of June 5, 2015, is vacated. The case is

remanded for further proceedings consistent with this opinion.

So ordered.