Commonwealth v. Dufresne

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation181 N.E.3d 1050
Docket NumberSJC-13123
Decision Date24 February 2022

181 N.E.3d 1050



Supreme Judicial Court of Massachusetts, Middlesex.

Argued October 6, 2021.
Decided February 24, 2022.

The following submitted briefs for amici curiae:

Jennifer H. O'Brien, Billerica, for the defendant.

Konstantin Tretyakov, Assistant District Attorney (Jamie M. Charles, Assistant District Attorney, also present), for the Commonwealth.

Patrick R. Kessock, of New York, for National Coalition for a Civil Right to Counsel, was present but did not argue.

Anthony D. Gulluni, District Attorney, & Travis H. Lynch, Assistant District Attorney, for district attorney for the Hampden District.

David Rassoul Rangaviz, Committee for Public Counsel Services, for Committee for Public Counsel Services.

Kate Barry, Laura Gal, Andrea C. Kramer, Boston, Christina Paradiso, Cheryl Garrity, Burlington, Nicole R.G. Paquin, & Adrianne Ramos, Boston, for Women's Bar Association of Massachusetts.

Deborah J. Manus, Boston, for Boston Bar Association.

Jamie Sabino, for Massachusetts Law Reform Institute.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.


181 N.E.3d 1055

Following a jury trial in the District Court, the defendant, Leon G. Dufresne, was convicted of violating an abuse prevention order. On appeal, he argues that his conviction suffers from two constitutional infirmities, both of which allegedly arise from the criminal penalties imposed on him as a result of his violation of the order. That is, while the defendant does not attack the validity of the underlying order, he challenges the consequences he faces for violating it. First, the defendant contends that G. L. c. 209A, § 7, the statute under which he was convicted, violates the constitutionally mandated separation of powers because it vests the executive branch with the power to enforce judicially issued abuse prevention orders. Second, the defendant argues that the State and Federal Constitutions prohibit his criminal punishment for the violation of an abuse prevention order that was issued when he was uncounselled and afforded no right to court-appointed counsel. In the alternative, the defendant argues that his conviction should be set aside and a new trial ordered because of abuses of discretion in several of the trial judge's rulings.

We conclude that G. L. c. 209A, § 7, is constitutional under our separation of powers principles, and that neither the State nor Federal Constitution is violated where, as here, a constitutionally permissible proceeding -- even one to which the right to counsel does not apply -- provides a predicate for a subsequent incarcerable offense. Discerning no abuse of discretion in the trial judge's challenged rulings, we affirm the defendant's conviction.1

1. Background. We summarize the facts as the jury could have found them. The defendant was involved in a romantic relationship with the victim for nearly four years. During that time, both parties lived in separate rooms within the same rooming house. The relationship had ended by August 24, 2017, when the victim applied

181 N.E.3d 1056

for and obtained a protective order under G. L. c. 209A. After notice to the defendant and a hearing on September 6, 2017, at which both the victim and defendant were present, the order was extended for one year. In addition to prohibiting the defendant from contacting or abusing the victim, the order required the defendant to vacate and stay away from the rooming house where the defendant had lived and where the victim continued to live.

On September 25, 2017, another resident of the rooming house was standing outside the house smoking a cigarette when the defendant approached. The defendant and the resident talked for approximately two minutes before the defendant asked to enter the house so that he could purchase cigarettes from the resident. The resident refused, pointing out that the victim had an abuse prevention order against the defendant, and the defendant left the area. The resident relayed this interaction to the victim, who reported the incident to police.

The defendant was arrested and charged with violating an abuse prevention order under G. L. c. 209A, § 7. The defendant moved to dismiss the criminal complaint, arguing that his conviction under G. L. c. 209A, § 7, violated the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, and cognate provisions of the Massachusetts Declaration of Rights. A District Court judge denied the defendant's motion to dismiss, and, following a jury trial, the defendant was found guilty and sentenced to eighteen months of probation. The defendant appealed, and we transferred the matter to this court on our own motion.

2. Discussion. a. Abuse Prevention Act. The Abuse Prevention Act was enacted as G. L. c. 209A over forty years ago to address the problem of domestic violence in the Commonwealth. C.O. v. M.M., 442 Mass. 648, 651, 815 N.E.2d 582 (2004). To this end, c. 209A "provides a statutory mechanism by which victims of family or household abuse can enlist the aid of the State to prevent further abuse through [civil] orders prohibiting a defendant from abusing or contacting the victim" (citation and quotations omitted).2 MacDonald v. Caruso, 467 Mass. 382, 385, 5 N.E.3d 831 (2014). See G. L. c. 209A, § 3A. These civil orders commonly are known as "abuse prevention orders." Abuse prevention orders can be obtained pursuant to G. L. c. 209A, §§ 3 - 5, in the Superior Court, the Boston Municipal Court, the District Court, or the Probate and Family Court. G. L. c. 209A, § 2. They can also be obtained in the Probate and Family Court as part of divorce proceedings pursuant to G. L. c. 208, § 18, 34B, or 34C ; as part of adjudication between spouses pursuant to G. L. c. 209, § 32 ; and as part of paternity actions pursuant to G. L. c. 209C, § 15 or 20. Chapter 209A additionally provides for enforcement of protection orders issued by another jurisdiction. See G. L. c. 209A, §§ 5A, 7 (providing filing and enforcement mechanisms for orders from other jurisdictions). See also Guidelines for Judicial Practice: Abuse Prevention Proceedings, § 1:00, at 20 (rev. Oct. 2021) (Judicial Guidelines).

In addition to prohibiting a defendant from abusing or contacting the plaintiff

181 N.E.3d 1057

(i.e., the victim), an abuse prevention order may, inter alia, (1) require the defendant to vacate and remain away from the plaintiff's household or workplace; (2) award temporary support to the plaintiff and his or her children; (3) award compensation for any financial losses caused by the abuse; (4) order the defendant to surrender any firearms, licenses to carry, and firearm identification cards in his or her possession, (5) award the plaintiff temporary custody of any minor children shared by the plaintiff and defendant; or (6) order the defendant to stay away from the plaintiff's children. G. L. c. 209A, §§ 3, 3B.

Where an abuse prevention order issued in another court restricts a defendant's access to or custody of his or her children, the defendant may file a separate petition in the Probate and Family Court seeking custody or parenting time. See Judicial Guidelines § 12:00, at 239. An order from the Probate and Family Court will supersede any contradictory provisions in the initial 209A order. See G. L. c. 209A, § 3 ("such order may be superseded by a subsequent custody or support order issued by the probate and family court department, which shall retain final jurisdiction over any custody or support order").

Obtaining and maintaining an abuse prevention order under c. 209A generally involves three separate hearings: an initial ex parte hearing, a notice hearing, and a renewal hearing.3 See G. L. c. 209A, §§ 3, 4. The three hearings proceed in order:

"[First, a] temporary abuse prevention order may issue ex parte for up to ten court business days where a plaintiff shows a ‘substantial likelihood of immediate danger of abuse.’ G. L. c. 209A, § 4. After hearing, the temporary order may be extended for no more than one year if the plaintiff proves, by a preponderance of the evidence, that the defendant has caused or attempted to cause physical harm, committed a sexual assault, or placed the plaintiff in reasonable fear of imminent serious physical harm. G. L. c. 209A, § 3.... [Finally, o]n or about the date the initial order expires, the plaintiff may seek to extend the duration of the order ‘for any additional time necessary to protect the plaintiff’ or to obtain a permanent order. G. L. c. 209A, § 3." (Footnote omitted.)

MacDonald, 467 Mass. at 386, 5 N.E.3d 831. At any point, either party may petition the court to terminate or otherwise modify an existing order. G. L. c. 209A, § 3 ("The court may modify its order at any subsequent time upon motion by either party"). Defendants also may challenge an abuse prevention order in the Appeals Court. Zullo v. Goguen, 423 Mass. 679, 681, 672 N.E.2d 502 (1996).

Although the proceedings under G. L. c. 209A, §§ 3 and 4, establishing abuse prevention orders are civil in nature, see G. L. c. 209A, § 3A, violation of an abuse prevention order generally is a criminal offense, see G. L. c. 209A, §§ 3B, 7.4


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