Com. v. Pagan

• Decision Date: 14 September 2005
• Parties: COMMONWEALTH v. Jose PAGAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

834 N.E.2d 240

445 Mass. 161

COMMONWEALTH v. Jose PAGAN.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued April 6, 2005.

Decided September 14, 2005.

COPYRIGHT MATERIAL OMITTED

Matthew V. Soares for the defendant.

Heather E. Hall, Assistant District Attorney (Kate Berrigan MacDougall, Assistant District Attorney, with her) for the Commonwealth.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

SPINA, J.

The defendant appealed from the imposition of a term of community parole supervision for life (CPSL) under G.L. c. 265, § 45, and G.L. c. 275, § 18. We transferred the case to this court on our own motion. Specifically, he claims that (1) sentencing him as a repeat offender without indicting him as such is a violation of art. 12 of the Massachusetts Declaration of Rights; (2) G.L. c. 275, § 18, is unconstitutionally vague; and (3) G.L. c. 275, § 18, is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).¹ For the reasons discussed below, we hold that a term of CPSL may be imposed lawfully on a repeat offender so long as the indictment or complaint alleges that he is a repeat offender, as required by art. 12. We further hold that G.L. c. 275, § 18, is unconstitutionally vague as to first time sex offenders because it provides uncertain and conflicting standards that fail to inform defendants, prosecutors, and judges what is required before CPSL may be imposed. In particular the statute identifies a standard of proof (clear and convincing evidence) but it contains contradictory language as to whether it is the Commonwealth or the defendant who must meet that standard, concurrently providing that the imposition of CPSL must be supported "by clear and convincing evidence" and that a determination not to impose CPSL must also be "supported by clear and convincing evidence." The statute also makes the imposition of CPSL dependent on a fact-finding process, but fails to identify what facts must be found, providing only that the judge must determine whether a defendant shall be committed to CPSL. To the extent that some of the language in the statute suggests that a judge has broad discretion to impose CPSL by applying traditional sentencing factors, it subjects that discretion to a fact-finding process that is inconsistent with that discretion. Moreover, insofar as § 18 is intended to make CPSL dependent on judicial fact finding (as opposed to the exercise of a judge's traditional sentencing discretion), it appears to violate the principle enunciated by the United States Supreme Court in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), cases that changed the constitutional requirements for enhanced penalty sentencing after CPSL was enacted.

1. Background. The defendant was tried on two indictments charging rape of a child under sixteen years arising from a single incident. Neither indictment specified that he was being charged as a repeat offender. At trial, after the close of the defendant's evidence, he moved for a required finding of not guilty. The judge granted the defendant's motion only as to the second indictment and only insomuch as it alleged penetration. The second count therefore was reduced to the lesser included offense of indecent assault and battery on a child under fourteen years. After deliberations, the jury found the defendant guilty on the first charge, but only of the lesser included offense of indecent assault and battery on a child under fourteen years, and not guilty on the second indictment.

On the day of the sentencing hearing, the Commonwealth filed a sentencing memorandum, recommending a term of imprisonment to from eight to ten years. The memorandum further stated that "it is the Commonwealth's position that the defendant must be placed on Community Parole for Life, pursuant to [G.L. c. 265, § 45], once he has completed the committed portion of his sentence." The Commonwealth noted separately, when detailing the defendant's criminal history, that in 1980 he had been convicted of ten counts of indecent assault and battery on a child, for which he received a two-year committed sentence, as well as probation.

At the hearing, the Commonwealth reiterated that its "recommendation is an eight to ten with an additional recommendation or assertion that this is a mandatory life offense. And the [mittimus] should also reflect community [parole] for life." The Commonwealth procured a copy of the prior convictions of indecent assault and battery on a child, which appeared to indicate that all ten counts concerned a single victim. Although the Commonwealth tried to obtain further details from police reports, it was unsuccessful.

Defense counsel recommended a sentence in accordance with the proposed sentencing guidelines available for use in the Superior Court, which he calculated as being from three to four and one-half years' incarceration. Specifically, he recommended a "three to three and a day sentence in terms of years in [S]tate prison." As to CPSL, defense counsel took the position that the judge "can consider this as a first offense since it's not charged as a subsequent offense, that the [judge] may impose lifetime community parole, but doesn't necessarily have to."

The judge stated that the defendant "is entitled to present evidence [and] cross-examine witnesses" under G.L. c. 275, § 18, which applies to first-time offenders. Defense counsel asserted that at such a hearing he would want to present evidence from experts as to the defendant's risk of reoffense, but conceded that the judge could choose whether to accept or reject that evidence. In light of the defendant's prior convictions, the judge then discussed potentially treating the defendant as a repeat offender, for whom CPSL is mandatory with no discretion or hearing.

No hearing occurred. Without further proceedings, the judge sentenced the defendant to a term of from six to eight years' incarceration on the indecent assault and battery conviction, and to CPSL under G.L. c. 265, § 45. She detailed three separate aggravating factors for this sentence, which was an upward departure from the proposed sentencing guidelines. It is unclear from the record whether she ultimately considered the defendant as a first-time or repeat offender under G.L. c. 265, § 45. The defendant appeals, arguing that the term of CPSL should be vacated because it was imposed in violation of his rights under the Massachusetts and United States Constitutions.

2. Legal framework. In 1999 the Legislature passed an emergency law, St.1999, c. 74, formally entitled "An Act improving the sex offender registry and establishing civil commitment and community parole supervision for life for sex offenders." See Commonwealth v. Renderos, 440 Mass. 422, 428-434, 799 N.E.2d 97 (2003). The provisions relating to CPSL are the focus of the matter before us. See G.L. c. 127, § 133D, inserted by St.1999, c. 74, § 9; G.L. c. 265, § 45, inserted by St.1999, c. 74, § 9; G.L. c. 275, § 18, inserted by St.1999, c. 74, § 14.

Sexual offenders susceptible to CPSL under these statutes fall into three groups based on the seriousness of the offense, and based on a defendant's prior conviction of certain sexual offenses. Although the statute itself does not utilize category labels for these groups, for ease of discussion we refer to them as categories 1, 2 and 3, in the order in which they appear in G.L. c. 265, § 45.

Category 1 offenders are those who have been convicted of serious, although not the most severe, sexual offenses.² Conviction of any of these offenses does not require the imposition of lifetime parole. However, "the district attorney, upon motion to the court, may request a hearing after conviction and before sentencing, to determine whether or not such person shall be committed ... to community parole supervision for life." G.L. c. 275, § 18, first par. The judge may not impose lifetime parole for category 1 offenders if no motion is filed by the district attorney. Commonwealth v. Renderos, supra at 433, 799 N.E.2d 97.

Category 2 offenders are those convicted of the most serious sexual offenses.³ A convicted offender in this category "shall, except as provided for in [G.L. c. 275, § 18,]... receive a sentence of community parole supervision for life." G.L. c. 265, § 45. One of the exceptions is that the Commonwealth has discretion to preclude the imposition of CPSL. Under G.L. c. 275, § 18, fourth par., the district attorney "may file a motion with the sentencing judge requesting that the defendant not receive community parole supervision for life, and upon receipt of such motion, the sentencing judge shall not impose community parole supervision for life on such ... offender." If no such motion is made, CPSL is a required component of the sentence for category 2 offenders unless the defendant, on motion, makes a showing that "the elements of [his offense] are mitigated by certain circumstances." G.L. c. 275, § 18, first par. If the category 2 defendant is able to make this threshold showing, either by offering evidence or pointing to evidence that otherwise is before the court, then the defendant has a right to the same hearing as a category 1 offender.

For both category 1 and 2 hearings, the defendant, represented by counsel, "shall be afforded an opportunity to testify, to present witnesses, to cross-examine witnesses who appear at the hearing and to present information." G.L. c. 275, § 18, second par. The rules of evidence do not apply to the hearing or the judge's determination. G.L. c. 275, § 18, second par. "In making a determination the judge shall, on the basis of any information which he can reasonably obtain, consider any mitigating or aggravating circumstances including, but not limited to, the defendant's character, propensities, criminal record, the...