Com. v. Raposo

• Decision Date: 07 May 2009
• Docket Number: SJC-10196
• Citation: 905 N.E.2d 545,453 Mass. 739
• Parties: COMMONWEALTH v. Luis RAPOSO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

905 N.E.2d 545

453 Mass. 739

COMMONWEALTH v. Luis RAPOSO.

SJC-10196

Supreme Judicial Court of Massachusetts, Bristol.

Argued January 8, 2009.

Decided May 7, 2009.

Beth L. Eisenberg, Committee for Public Counsel Services, Boston (Colleen A. Tynan with her) for the defendant.

Rachel J. Eisenhaure, Assistant District Attorney, for the Commonwealth.

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

BOTSFORD, J.

Pursuant to Mass. R.Crim. P. 34, as amended, 442 Mass. 1501 (2004),¹ a judge in the District Court reported to the Appeals Court this case and in particular several questions concerning the constitutionality of G.L. c. 265, § 47, a statute that requires a person who is "placed on probation" for certain sex offenses to wear a global positioning system (GPS) device as "a requirement of any term of probation." We transferred the case on our own motion. We conclude that G.L. c. 265, § 47, does not apply to persons placed on probation prior to trial and prior to conviction or entry of a plea of guilty or admission to facts sufficient for a finding of guilt (admission to sufficient facts). Because the defendant, with his consent, has been placed on pretrial probation under G.L. c. 276, § 87, without a guilty plea or admission to sufficient facts, it follows that G.L. c. 265, § 47, has no application to him. Accordingly, we decline to answer the constitutional questions reported.²

Background. A global positioning system (GPS) device is an electronic monitor designed to report continuously the probationer's current location. General Laws c. 265, § 47 (§ 47), requires "[a]ny person who is placed on probation" for certain sex offenses to "wear a[GPS] device, or any comparable device, administered by the commissioner of probation, at all times for the length of his probation." A GPS device, as implemented by the Commissioner of Probation (commissioner), consists of two pieces of electronic equipment: an ankle bracelet, which is permanently attached to the probationer, and a GPS-enabled cellular telephone, which communicates with the ankle bracelet and transmits the probationer's current location to the probation department. Under § 47, the commissioner is directed to "establish defined geographic exclusion zones," or areas whose entry will be reported by the GPS device, leading to various sanctions. Id.

On November 1, 2005, the defendant was charged by complaint in the District Court with one count of indecent assault and battery on a child under fourteen, in violation of G.L. c. 265, § 13B, and one count of disseminating obscene matter to a minor, in violation of G.L. c. 272, § 28. Both offenses are among the sex offenses to which § 47 applies. G.L. c. 6, § 178C. On December 28, 2006, the defendant and the Commonwealth, through counsel, jointly recommended to a District Court judge that the defendant be placed on pretrial probation under G.L. c. 276, § 87, for a period of two years, subject to certain conditions. The judge accepted the recommendation and imposed pretrial probation terms that included the following: the defendant would have no contact with children under sixteen, or with the victim in the case or her mother; would live with his grandmother and be subject to a 9 P.M. curfew; would remain employed; would submit to a mental health evaluation and counselling, if ordered; and would remain drug and alcohol free and submit to random testing.³ The defendant signed a copy of the probation order of conditions on December 28, 2006.⁴

Section 47 went into effect on December 20, 2006, one week before the defendant signed the order of probation. G.L. c. 265, § 47, inserted by St.2006, c. 303, § 8. In its original form, the defendant's December 28, 2006, probation order of conditions did not contain any reference to § 47 or to any requirement that the defendant wear a GPS device or be subject to GPS monitoring (GPS requirement). In a December 20, 2006, memorandum to the chief probation officers of all court departments, the commissioner took the position that § 47 applied to all persons placed on probation, whether found guilty, given a continuance without a finding after admitting to sufficient facts, or prior to trial.⁵ On learning of the new policy, the defendant's probation officer made an ex parte request to the judge that the GPS requirement be added to the defendant's terms of pretrial probation. On January 3, 2007, the judge signed a new probation order that included the GPS requirement, which was then presented to and signed by the defendant without hearing or advance notice. Defense counsel, apparently learning of the new condition after the order had been signed, requested a stay of execution and moved to vacate the GPS requirement. Another District Court judge granted the stay and reported five questions of law to the Appeals Court pursuant to rule 34. The questions are as follows:

"[1] Whether the language of G.L. c. 265, [§ ]47, requiring `all persons on probation' for certain sex offenses to wear a[GPS] device at their own expense, regardless of whether they have been convicted of any sex offense, made admissions to sufficient facts, or placed on pre-trial probation without any admission violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution, and/or [arts.] 1, 10 or 12 of the Massachusetts Declaration of Rights?

"[2] Whether G.L. c. 265, [§ ]47, both as written and as particularly applied to this defendant and others similarly situated, is punitive rather than remedial, and thus violates the Due Process Clause ... and [arts.] 1, 10, 12 and 24 of the Massachusetts Declaration of Rights, because it allows for punishment of an individual who has not been convicted of a crime and intrudes upon the defendant's liberty and privacy interests without the right to a hearing?

"[3] Do the provisions of G.L. c. 265, [§ ]47, requiring all persons on probation for certain sex offenses to wear a[GPS] device, regardless of whether they were convicted of the sex offense or made admissions to the offense for which they are on probation, violate the Fifth Amendment, the Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution and [arts.] 1, 10, and 12 ... ?

"[4] Does the application of G.L. c. 265, [§ ]47, constitute cruel and unusual punishment to a person such as this defendant who has neither been convicted of any enumerated sex offense or admitted to such an offense thus violating the Eighth Amendment to the United States Constitution, and [art.] 26 ... ?

"[5] Whether the application of G.L. c. 265, [§ ]47, to this defendant and others similarly placed on pretrial probation without an admission to a sex offense which was allegedly committed prior to the enactment of the statute, constitutes an ex post facto law in violation of [art.] 1, [§ ]10 of the United States Constitution, and [art.] 12 ... ?"

Discussion. "In answering questions reported under Mass. R.Crim. P. 34, we first address any potentially dispositive preliminary questions." Commonwealth v. Maloney, 447 Mass. 577, 584 n. 10, 855 N.E.2d 765 (2006). "We do not decide constitutional questions unless they must necessarily be reached." Commonwealth v. Paasche, 391 Mass. 18, 21, 459 N.E.2d 1223 (1984). See Fleet Nat'l Bank v. Commissioner of Revenue, 448 Mass. 441, 451 n. 9, 862 N.E.2d 22 (2007), quoting 1010 Memorial Drive Tenants Corp. v. Fire Chief of Cambridge, 424 Mass. 661, 663, 677 N.E.2d 219 (1997) ("issues of statutory interpretation should be resolved prior to reaching any constitutional issue"). Because we conclude that § 47 does not apply to a person, such as the defendant in this case, who is placed on probation before trial or entry of a guilty plea or admission to sufficient facts, and not as part of a sentence or disposition following conviction, we need not reach the reported constitutional questions.

"We interpret a statute `according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language ... to the end that the purpose of its framers may be effectuated.'" Chandler v. County Comm'rs of Nantucket County, 437 Mass. 430, 435, 772 N.E.2d 578 (2002), quoting Hanlon v. Rollins, 286 Mass. 444, 447, 190 N.E. 606 (1934). We begin with the language of the statute. Rowley v. Massachusetts Elec. Co., 438 Mass. 798, 802, 784 N.E.2d 1085 (2003).

Chapter 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 [§ ]178C of chapter 6, 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" (emphasis added).⁶

The defendant argues that the phrase "placed on probation for any offense" renders the GPS statute unconstitutionally vague, because persons of common intelligence must necessarily guess whether the law refers to probation for a charged offense, or only for a convicted offense. See Commonwealth v. Jaffe, 398 Mass. 50, 54, 494 N.E.2d 1342 (1986), quoting Caswell v. Licensing Comm'n for Brockton, 387 Mass. 864, 873, 444 N.E.2d 922 (1983) ("A law is void for vagueness if persons `of common intelligence must necessarily guess at its meaning and differ as to its application'"). The Commonwealth, ignoring the phrase "for any offense," responds that the statute is unambiguous, and the plain meaning of "any person placed on probation" and "any term of probation" includes probation of any kind—a temporary placement pending trial, a pretrial disposition of the case, or probation ordered by a judge as part of the disposition of a case after conviction. See Commonwealth v. Russ R., 433 Mass. 515, 520, 744 N.E.2d 39 (2001) ("When a statute is plain...