Commissioner of Correction v. McCabe

• Citation: 410 Mass. 847,576 N.E.2d 654
• Parties: COMMISSIONER OF CORRECTION v. John McCABE et. al. 1
• Decision Date: 12 August 1991
• Court: United States State Supreme Judicial Court of Massachusetts

Page 654

576 N.E.2d 654

410 Mass. 847

COMMISSIONER OF CORRECTION v. John McCABE et. al. ¹

Supreme Judicial Court of Massachusetts Suffolk.

Argued Feb. 6, 1991.

Decided Aug. 12, 1991.

William D. Saltzman, Boston, for Com'r of Correction.

James R. Pingeon, Boston, for John McCabe.

William J. Leahy, Committee for Public Counsel Services, Boston, for Christopher Rambert.

Before LIACOS, C.J., and WILKINS, NOLAN, LYNCH and O'CONNOR, JJ.

LIACOS, Chief Justice.

On October 1, 1989, the defendants, John McCabe, James LeBlanc, and Christopher Rambert, escaped from the treatment center for sexually dangerous persons (treatment center). ² Before they were apprehended, the Commissioner of Correction (commissioner) initiated this action in the Superior Court in Suffolk County. The commissioner sought a declaration that: (1) On conviction of escape under G.L. c. 268, § 16 (1990 ed.), a treatment center inmate may be sentenced to and immediately incarcerated at a State correctional facility; and (2) once captured, a committed treatment center inmate charged with escape under G.L. c. 268, § 16, may be held in custody as a pretrial detainee and removed to await trial at a correctional institution as provided by G.L. c. 276, § 52A (1990 ed.). ³ The commissioner also sought related injunctive relief.

McCabe and LeBlanc were captured on October 4, 1989. ⁴ On the same day, a Superior Court judge issued a temporary restraining order, in the presence of counsel representing McCabe and LeBlanc, authorizing the commissioner to "exercise [his] rights under G.L. c. 276, § 52A, to place the defendants in 'a correctional institution of the commonwealth' pending trial of the escape complaint and/or indictment." ⁵ The judge entered additional temporary orders authorizing the continued retention of the defendants at the Massachusetts Correctional Institution at Cedar Junction (M.C.I., Cedar Junction) pending the disposition of the escape charges. On February 8, 1990, the judge entered his final memorandum of decision on the commissioner's motion for a declaratory judgment. The judge ruled that, before a sexually dangerous person committed to the treatment center under G.L. c. 123A could be transferred to a correctional facility, that person first must be discharged in accordance with G.L. c. 123A, § 9 (1990 ed.). A judgment was entered the following day. ⁶

The commissioner appeals from that portion of the judgment ordering the return of the defendants to the treatment center on conviction, plea, or other resolution of the pending escape indictments. ⁷ Of the three defendants, only McCabe cross appeals from that portion of the Superior Court judgment that permits his confinement to a correctional facility during the pendency of his indictment. We transferred this case from the Appeals Court on our own motion. ⁸

1. Mootness. The circumstances of this case require us to consider whether the appeal presents live issues for resolution. We follow the general rule that courts will only decide actual controversies. Metros v. Secretary of the Commonwealth, 396 Mass. 156, 159, 484 N.E.2d 1015 (1985). "Litigation ordinarily is considered moot when the party claiming to be aggrieved ceases to have a personal stake in its outcome." Attorney Gen. v. Commissioner of Ins., 403 Mass. 370, 380, 530 N.E.2d 142 (1988), citing Blake v. Massachusetts Parole Bd., 369 Mass. 701, 703, 341 N.E.2d 902 (1976). The commissioner now is seeking, in his first count, a declaration which will authorize the sentencing of the defendants to a State correctional facility following their convictions on the escape charges, and their immediate incarceration at such facility for the entire term of all pending sentences, with the possible return of the defendants to the treatment center thereafter. The changed circumstances have not rendered this issue moot. Thus, we address the issue on its merits in section 2, infra.

In his second count, the commissioner seeks authority to hold the defendants, charged with escape under G.L. c. 268, § 16, in custody as pretrial detainees and to remove them to await trial at a State correctional facility as provided by G.L. c. 276, § 52A. Each of the defendants has been convicted and no longer is a pretrial detainee. Therefore, this count of the commissioner's complaint, and McCabe's appeal from the Superior Court ruling thereon, is moot.

On occasion, we have considered questions which are moot "where the issue was one of public importance, where it was fully argued on both sides, where the question was certain, or at least very likely to arise again in similar factual circumstances, and especially where appellate review could not be obtained before the recurring question would again be moot." Norwood Hosp. v. Munoz, 409 Mass. 116, 121, 564 N.E.2d 1017 (1991), quoting Lockhart v. Attorney Gen., 390 Mass. 780, 783 (1984). See Attorney Gen. v. Commissioner of Ins., supra. The issue whether the commissioner may confine the defendants at a State correctional facility as pretrial detainees is capable of repetition while evading review, because future defendants may be convicted for the underlying escape charges and lose their "pretrial detainee" status before the commissioner could effectuate an appeal. Therefore, we reach the merits of this claim in section 3, infra.

2. Transfer to State correctional facility of treatment center inmates convicted of escape. The commissioner is seeking a declaration authorizing him to transfer the defendants to a State correctional facility immediately after their conviction and sentencing for escape, to be incarcerated for the full term of their unexpired underlying sentences and the escape sentences, with the possible return to the treatment center thereafter. The commissioner asserts that G.L. c. 268, § 16, authorizes him immediately to transfer treatment center inmates to a State correctional facility once they have been convicted of escape. ⁹ General Laws c. 268, § 16, does not grant the commissioner the power to confine the defendants at a State correctional facility for their unexpired sentences. The punishment prescribed by § 16 is power granted to a judge who sentences a defendant after conviction of a violation of § 16.

Further, G.L. c. 123A, § 6, provides that a person committed to the treatment center "shall be held until discharged therefrom under the provisions of section nine." Section 9 provides for discharge only when, after a court hearing, the individual is found to be no longer sexually dangerous. See G.L. c. 123A, § 9. Discharge of a sexually dangerous person is so limited to prevent an individual, whom a judge has determined to be sexually dangerous, from being returned to society without having been successfully treated for his condition. To otherwise allow the transfer of an individual from the treatment center to a State correctional facility which does not have a treatment center branch unit would prevent further treatment of that individual. ¹⁰ Once the individual completes the sentences for which he was confined in prison, he will be released, but he may still be sexually dangerous. Clearly this was not the intent of the Legislature in enacting G.L. c. 123A. See Commissioner of Mental Health v. Gagne, 19 Mass.App.Ct. 545, 550, 475 N.E.2d 1243 (1985). "The remedial purpose of [G.L. c. 123A], namely the care, treatment and rehabilitation of the sexually dangerous person, must not be overlooked; indeed that is the primary objective and there must be more than mere incarceration if the statute is to 'escape constitutional requirements of due process.' " Commonwealth v. Hogan, 341 Mass. 372, 376, 170 N.E.2d 327 (1960), quoting Commonwealth v. Page, 339 Mass. 313, 318, 159 N.E.2d 82 (1959). The order requiring the return of the defendants to the treatment center was correct.

3. Confinement of treatment center inmates in a State correctional facility as pretrial detainees under G.L. c. 276, § 52A. The commissioner argues that G.L. c. 276, § 52A, authorizes him to hold treatment center inmates at a State correctional facility as pretrial detainees pending resolution of the escape indictments, in order to ensure the defendants' presence at trial and to protect the public from possible future escapes by the defendants from the treatment center. ¹¹ Our analysis of this issue is essentially the same as our analysis in section 2, supra. Nothing in G.L. c. 123A authorizes the commissioner to confine the defendants, who have been committed to the treatment center, at any other facility. The words of the statute and the legislative intent in enacting G.L. c. 123A are clear. Cf. Rambert v. Commonwealth, 389 Mass. 771, 452 N.E.2d 222 (1983). The defendants must be confined at the treatment center until such time as they are found to be no longer sexually dangerous. The order staying the return of McCabe to the treatment center was not appropriate.

Judgment affirmed.

1 Christopher Rambert. Although James LeBlanc has not pursued this matter on appeal, he remains a defendant in the action leading to this appeal.

2 The defendants had been committed to the treatment center under G.L. c. 123A, § 6 (1988 ed.) (repealed by St.1990, c. 150, § 304). Section 6 provided, in part: "If the court finds that such prisoner is a sexually dangerous person, it shall commit him to the center, or a branch thereof, for an indeterminate period of a...