Com. v. Cory

Citation454 Mass. 559,911 N.E.2d 187
Decision Date18 August 2009
Docket NumberSJC-10314.
PartiesCOMMONWEALTH v. Russell M. CORY.
CourtUnited States State Supreme Judicial Court of Massachusetts

M. Catherine Huddleson, Special Assistant District Attorney, for the Commonwealth.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.

BOTSFORD, J.

General Laws c. 265, § 47, inserted by St.2006, c. 308, § 8 (§ 47), requires any person who is "placed on probation" after conviction of a designated sex offense to wear a global positioning system (GPS) tracking device for the duration of his or her probation.1 In March, 2008, a judge in the Superior Court ruled that this statute applied to the defendant, and entered an order modifying the terms of the defendant's probationary sentence to require that he wear a GPS device during his probation. The defendant appealed, and we granted his application for direct appellate review. We conclude that G.L. c. 265, § 47, by its terms applies to the defendant, because he was "placed on" postconviction probation following the statute's effective date of December 20, 2006. We further conclude, however, that G.L. c. 265, § 47, is punitive in effect, and under the ex post facto provisions of the United States and Massachusetts Constitutions, may not be applied to persons who are placed on probation for qualifying sex offenses committed before the statute's effective date.2 Because the defendant committed and was convicted of his qualifying sex offense before § 47 was enacted, the statute may not be applied to him. We therefore vacate the order of the Superior Court judge and remand for further proceedings.3

Facts and background. We recite the essential facts reflected in the record, which are not disputed. On December 3, 1997, the defendant pleaded guilty in the Superior Court to a charge of indecent assault and battery on a child under fourteen, G.L. c. 265, § 13B, and was sentenced to twenty-five years' probation. The defendant also pleaded guilty to a charge of rape of a child, G.L. c. 265, § 23, for which he was sentenced to a term of from seven to ten years in State prison.4 In May of 2006, the defendant was released on parole, but because he was also serving his probationary sentence, the probation department assumed responsibility for his supervision beginning in July of 2006. On October 19, 2006, a probation surrender notice issued to the defendant, alleging that he had violated several conditions of his probation that required him to attend counselling and treatment programs. On December 20, 2006, G.L. c. 265, § 47, took effect. See St.2006, c. 303, § 8. On January 5, 2007, a Superior Court judge (first Superior Court judge) held a probation revocation hearing, and found the defendant to be in violation of his probation. That probation was revoked and the judge sentenced the defendant to two and one-half years in a house of correction, with one year to serve and the balance suspended for six years, with the defendant to be on probation during the suspended portion of the sentence. Although § 47 was then in effect, the judge did not order the defendant to wear a GPS tracking device as a condition of this probation, and there was no mention of § 47 at the revocation hearing.

Subsequently, the probation department requested that the conditions of the defendant's probation ordered on January 5, 2007, be amended to include a requirement that the defendant wear a GPS device, pursuant to § 47. A hearing was held on February 22, 2008, before a second Superior Court judge. The judge concluded that § 47 applies to sex offenders who commence a term of probation after the statute's effective date. He further concluded that because, in his view, the "commencement of probation is the triggering event," the statute was not impermissibly retroactive as applied to the defendant, whose current probationary term did not begin until after § 47 became effective. Accordingly, the second judge ordered that the defendant be required to be monitored by the probation department with a GPS tracking device during his probationary term "in accordance with" § 47.

Discussion. The defendant's appeal from the judge's order focuses entirely on § 47. He claims that the statute does not apply to him because he was "placed on probation" when he was originally sentenced to probation in 1997, long before the statute's effective date. His primary argument, however, is that, in any event, § 47 cannot be applied to him, because in the circumstances of his case, § 47 operates as an unconstitutional ex post facto law.5

1. Does § 47 apply to the defendant? Section 47 states 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, 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.... 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." (Emphasis added.)

At issue is the meaning of the phrase, "is placed on probation."

In seeking to interpret a statute, the starting point is its language. Commonwealth v. Welch, 444 Mass. 80, 85, 825 N.E.2d 1005 (2005). Because the Legislature used the present tense verb "is placed" before the word "probation," we conclude that § 47 by its strict terms applies to sex offenders who are convicted of designated or qualifying sex offenses and who are sentenced to probation after the effective date of the statute, regardless of whether the crimes at issue were committed before or after the statute's effective date.6 The statute applies to the defendant in this case, because he was "placed on probation" on January 5, 2007 — the date the first Superior Court judge found him in violation of his previous probationary sentence, revoked that probation, and imposed the new sentence with a new probationary term of six years.7

2. Is § 47 an ex post facto law? Because we conclude that

§ 47 applies to the defendant, we must consider the defendant's claim that as so applied, the statute is an unconstitutional ex post facto law.8 An ex post facto law is, in this context, one that "changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed." Commonwealth v. Bargeron, 402 Mass. 589, 590, 524 N.E.2d 829 (1988), quoting Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798).9 "To prevail on this sort of ex post facto claim, [the defendant] must show both that the law he challenges operates retroactively (that it applies to conduct completed before its enactment) and that it raises the penalty from whatever the law provided when he acted." Johnson v. United States, 529 U.S. 694, 699, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000). See Miller v. Florida, 482 U.S. 423, 430, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987), quoting Weaver v. Graham, 450 U.S. 24, 31, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981) ("A law is retrospective if it `changes the legal consequences of acts completed before its effective date'").

The defendant received his most recent probationary sentence — and the GPS monitoring requirement imposed under § 47 as a term of that probation — as a consequence of the violation of his prior probation. Penalties for violation of the terms of supervised release, including the penalty of additional supervised release, are attributed to the original conviction rather than to the violation. Johnson v. United States, supra at 700-701, 120 S.Ct. 1795. Cf. Krochta v. Commonwealth, 429 Mass. 711, 714, 711 N.E.2d 142 (1999) ("[probation] revocation does not punish the defendant for any crime charged subsequent to the imposition of probation"). Thus, because the probationary sentence the defendant received in 2007 relates back to a criminal offense he committed in or before 1997 (when he was originally convicted), § 47 has a retrospective application to him. It is necessary, therefore, to consider whether § 47 constitutes punishment, or, what is to the same effect, is penal. See Opinion of the Justices, 423 Mass. 1201, 1225, 668 N.E.2d 738 (1996).

This consideration involves a two-part inquiry. First, we must try to discern whether the Legislature explicitly or implicitly intended to denominate the statute a civil remedy or criminal penalty. See Smith v. Doe, 538 U.S. 84, 93, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003), quoting Hudson v. United States, 522 U.S. 93, 99, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997) ("The courts `must first ask whether the legislature, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other'"). See also Commonwealth v. Bruno, 432 Mass. 489, 500, 735 N.E.2d 1222 (2000) (Bruno) ("Whether a statute was intended to be criminal or civil depends on the Legislature's intent, which is a...

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