Commonwealth v. Cole

• Decision Date: 11 June 2014
• Docket Number: SJC–11316.
• Citation: 10 N.E.3d 1081,468 Mass. 294
• Parties: COMMONWEALTH v. Casey L. COLE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

468 Mass. 294

10 N.E.3d 1081

COMMONWEALTH

v.Casey L. COLE.

SJC–11316.

Supreme Judicial Court of Massachusetts, Plymouth.

Submitted Nov. 5, 2013.

Decided June 11, 2014.

Held Unconstitutional

M.G.L.A. c. 127, § 133D

Beth L. Eisenberg, Committee for Public Counsel Services (Laura M. Banwarth, Plymouth, with her) for the defendant.

Mary E. Lee, Assistant District Attorney, for the Commonwealth.

Jeffrey G. Harris, Margaret Fox, Elizabeth A. Lunt, & Patricia Garin, Boston, for Massachusetts Association of Criminal Defense Lawyers & another, amici curiae, submitted a brief.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

GANTS, J.

The issue presented on appeal is whether community parole supervision for life (CPSL) violates our separation of powers doctrine, articulated in art. 30 of the Massachusetts Declaration of Rights, by improperly delegating to the parole board, an entity of the executive branch, the exercise of the judicial power to impose sentences. We conclude that CPSL grants to the parole board a quintessential judicial power, the power to determine whether a defendant should be sentenced to additional terms of imprisonment, and therefore violates art. 30. Because the imposition of a CPSL sentence by the parole board constitutes an unconstitutional violation of our separation of powers doctrine, the defendant's CPSL sentence must be vacated. ¹

Background. The defendant, Casey Cole, was classified as a level two sex offender by the Sex Offender Registry Board (SORB), and therefore was required to register as a sex offender and provide SORB with notice of any change of address. See G.L. c. 6, § 178E ( h ). See also G.L. c. 6, §§ 178C–178P. On March 22, 2010, a complaint issued charging the defendant with failing to provide notice of a change of address, as a level two or level three sex offender, in violation of G.L. c. 6, § 178H ( a ) (1). Among the potential penalties identified in the complaint was “lifetime community parole supervision.”

On August 23, 2011, the defendant pleaded guilty to this offense in District Court, admitting that he was a level two offender; that he had identified an address in West Bridgewater as his primary residence when he registered in July, 2009; and that he had failed to provide the police with notice of his change of address when he moved to Taunton. The judge sentenced the defendant to six months of supervised probation and CPSL.²

The defendant completed his probation term without incident, and at the end of February, 2012, he began his CPSL sentence. On July 12, 2012, the defendant filed a motion to correct his sentence pursuant to Mass. R.Crim. P. 30(a), as appearing in 435 Mass. 1501 (2001).³ He claimed that he should not have been sentenced to CPSL for several reasons, including that the sentence is unconstitutional under the separation of powers doctrine. ⁴

The judge denied the defendant's motion without a hearing and without addressing the constitutional claims.⁵ The defendant appealed, and we granted his application for direct appellate review to resolve the question of the constitutionality of CPSL, which is concurrently raised in Commonwealth v. Parrillo, 468 Mass. 318, 14 N.E.3d 919 (2014); and Gangi v. Massachusetts Parole Bd., 468 Mass. 323, 10 N.E.3d 1070 (2014).

Discussion. 1. CPSL. CPSL subjects a sex offender to intensive “parole” supervision for life under the oversight of the parole board, which executes the CPSL sentence. See G.L. c. 127, § 133D ( a ). While serving a CPSL sentence, a sex offender is subject to a set of mandatory conditions, defined by statute and by the parole board, as well as additional conditions imposed at the parole board's discretion. See G.L. c. 127, §§ 133A, 133D ( a ), 133D 1/2; Massachusetts Parole Board, Intensive Parole for Sex Offenders, Executive Office of Public Safety and Security (2012). General Laws c. 6, § 178H; G.L. c. 265, § 45; and G.L. c. 275, § 18, as interpreted by our decisions, dictate when a CPSL sentence may or must be imposed.⁶

A CPSL sentence “commence[s] immediately upon the expiration of the term of imprisonment imposed upon such person by the court or upon such person's release from probation or parole supervision or upon the expiration of a continuance without a finding or upon discharge from commitment to the treatment center pursuant to [G.L. c. 123A, § 9], whichever first occurs.” G.L. c. 6, § 178H ( a ) (1). See G.L. c. 265, § 45 (employing similar language). Once CPSL commences, the defendant is “under the jurisdiction, supervision and control of the parole board in the same manner as a person under parole supervision,” and is “subject to the provisions of law governing parole as if such person were a parolee ” (emphasis added). G.L. c. 127, § 133D ( a ). Even though a person under CPSL is treated as if he were on parole, the emphasized language of § 133D reflects that CPSL is not parole. Because this distinction is critical to our conclusion that CPSL violates the separation of powers doctrine, where parole does not, we outline the fundamental differences between parole and CPSL.

Parole provides prisoners with the opportunity to serve the balance of their term of imprisonment outside a prison provided that they comply with the conditions established by the parole board, which, pursuant to G.L. c. 27, § 4, is a board in the department of correction, although “not subject to its jurisdiction.” “A prisoner to whom a parole permit is granted shall be allowed to go upon parole outside prison walls ... upon such terms and conditions as the parole board shall prescribe, but shall remain, while thus on parole, subject to the jurisdiction of [the parole] board until the expiration of the term of imprisonment to which he has been sentenced....” G.L. c. 127, § 130. See Black's Law Dictionary 1227 (9th ed. 2009) (defining parole as “conditional release of a prisoner from imprisonment before the full sentence has been served ... on the condition that the parolee regularly report to a supervising officer for a specified period”). Pursuant to statutory authority, the parole board may release a prisoner and grant him parole where the board finds that he “will live and remain at liberty without violating the law and that release is not incompatible with the welfare of society.” G.L. c. 127, § 130. See 120 Code Mass. Regs. § 300.04(1) (1997).

The parole board may establish and enforce conditions of release for any person who is granted parole. See G.L. c. 27, § 5; G.L. c. 127, § 130. Where a parole officer believes that a parolee has violated a condition of his release, the parole officer, with the consent of a parole supervisor, has the authority to “issue a warrant for the temporary custody of [the] parolee for a period not longer than fifteen days.” G.L. c. 127, § 149A. See 120 Code Mass. Regs. § 303.06(1) (1997). Where the parole board finds a violation of a parole condition, the board “may revoke a permit to be at liberty,” G.L. c. 127, § 148, and order the parolee to be returned to prison or jail. Id. at § 149. Absent revocation of a prisoner's parole permit, the board's jurisdiction over the parolee ends on “the expiration of the maximum term” of the committed sentence, less any deductions for good conduct. G.L. c. 27, § 5.

With parole, therefore, the authority of the parole board is limited to the release from custody of a defendant within the maximum term of imprisonment imposed by the sentencing judge. The board, through its parole authority, has no power to extend a defendant's imprisonment beyond the term imposed by the sentencing judge; it has the power only to permit a defendant to serve the balance of his term of imprisonment outside the prison walls, subject to the parolee's compliance with conditions established by the board, and the power to revoke the parole permit and return the defendant to prison or jail for the balance of his term of imprisonment. See G.L. c. 27, § 5; G.L. c. 127, §§ 130, 148, 149.⁷

In contrast to parole, CPSL is a separate and distinct sentence that requires a defendant presumptively to live for the rest of his life under the supervision of the parole board, typically after the expiration of the original term of imprisonment. See G.L. c. 127, § 133D ( a ). Whereas a defendant is not on parole unless and until the parole board grants the defendant a parole permit during the term of his imprisonment, a defendant sentenced to CPSL automatically becomes subject to CPSL conditions and is under the control of the parole board on the expiration of his term of imprisonment. See id. See also G.L. c. 6, § 178H ( a ); G.L. c. 265, § 45.

The starkest difference between parole and CPSL is in what happens after a defendant violates a condition. On finding a violation of a parole condition, the parole board “may” revoke a parole permit and order a defendant it has released from custody to return to prison or jail to serve the remainder of his original sentence. See G.L. c. 127, §§ 148, 149. In contrast, on finding a violation of a CPSL condition, the parole board “shall ... increase [ ]” the “original term of imprisonment” imposed by the judge by a new mandatory term in the house of correction: thirty days for a first violation, 180 days for a second violation, and one year for a third or subsequent violation. G.L. c. 127, § 133D ( c ).⁸The parole board must continue to impose these mandatory sentences for the rest of the defendant's life whenever the defendant violates a CPSL condition.⁹ In other words, with parole, the parole board has no power, after finding a violation of a parole condition, to change the term of imprisonment imposed by the judge; it may simply revoke the permit it granted to allow the defendant to serve some part of a custodial sentence outside the prison walls. With CPSL, after finding a violation of a CPSL condition, the parole board has not only the power but the mandatory obligation to increase the term of...