Commonwealth v. G.F.

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation93 N.E.3d 816,479 Mass. 180
Decision Date20 March 2018
Docket NumberSJC–12388

Joseph M. Kenneally (Michael F. Farrington also present) for G.F.

John P. Zanini, Assistant District Attorney, for the Commonwealth.

Present: Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ.


This case concerns G. L. c. 123A, the statute governing civil commitment of sexually dangerous persons (SDP). Prior to civilly committing an individual under this statute, the Commonwealth must obtain a unanimous jury verdict finding that the individual is sexually dangerous.1 G. L. c. 123A, § 14 (d ). Subject to certain exceptions, the trial to determine sexual dangerousness must be held within sixty days after the Commonwealth files a petition for trial. G. L. c. 123A, § 14 (a ). During this time, the individual is to be temporarily confined. See G. L. c. 123A, § 14 (e ) ; Commonwealth v. Pariseau, 466 Mass. 805, 808, 2 N.E.3d 859 (2014).

In this case, the Commonwealth filed a petition seeking to commit the petitioner as an SDP in December, 2010. Following years of delay and three mistrials, the petitioner remains confined without a finding that he is sexually dangerous. He contends that substantive due process and the SDP statute require dismissal of the Commonwealth's petition. A judge of the Superior Court concluded that continued confinement violated the petitioner's substantive due process rights, ordered his release, and then stayed that order and reported a number of questions.

We conclude that the SDP statute permits a fourth trial in the circumstances of this case. While due process would impose a limit on the number of retrials that may take place under the SDP statute, that limit has not been reached here. The petitioner's nearly seven-year confinement without a finding of sexual dangerousness, however, does violate his substantive due process rights as provided by the Fifth and Fourteenth Amendments of the United States Constitution and the Massachusetts Declaration of Rights. Accordingly, he must be afforded the opportunity to seek supervised release prior to his fourth trial.

1. Background. We summarize the uncontested facts from the record, discussed in part in two different Superior Court judges' decisions on the petitioner's motions for release from confinement. See Chin v. Merriot, 470 Mass. 527, 529, 23 N.E.3d 929 (2015).

a. Offenses. The petitioner has pleaded guilty to sexual offenses on four separate occasions. In 1980, he pleaded guilty in the California Superior Court to lewd and lascivious conduct upon a child. On multiple occasions, he had sexually molested a friend's thirteen and eleven year old daughters.

In 1982, while he was on probation for these offenses, the petitioner sexually molested the thirteen year old daughter of a friend, at knife point, in the friend's apartment. He pleaded guilty in the California Superior Court to lewd and lascivious conduct upon a child by force with the use of a deadly weapon.

In 1992, the petitioner also agreed to sufficient facts in the Massachusetts District Court to support convictions of, among others, open and gross lewdness and assault with a dangerous weapon. In October, 1993, the petitioner pleaded guilty in the Superior Court to charges of three counts of rape of a child; three counts of kidnapping; two counts of assault and battery; one count of mayhem, assault and battery by means of a dangerous weapon, and one count of making threats. The petitioner repeatedly had raped his girl friend's six year old daughter while she was bound and gagged. According to the child's statements, he threated to kill her mother if the child said anything. The child reported that, on one occasion, her four year old sister entered the room, and the petitioner forced both girls to perform fellatio upon him. He also forced his girl friend to do so until she had an asthma

attack. The petitioner was sentenced to concurrent terms of from fifteen to twenty years on each of the rape charges, and concurrent terms of from five to ten years on each of the charges of kidnapping and mayhem.

b. Proceedings prior to the three mistrials. Shortly before the petitioner's sentences were to end, the Commonwealth retained as a qualifying examiner Dr. Carol Feldman to evaluate him. In December, 2010, Feldman determined that the petitioner suffers from pedophilia, a mental abnormality as defined in the SDP statute, as well as antisocial personality disorder

, resulting in an inability to control his sexual impulses. Feldman analyzed multiple risk factors, including the petitioner's prior sexual offenses, his prior inability to abide by the rules of his probation, and his termination from sex offender treatment in 2007 after slapping another resident. She also utilized an actuarial tool that assesses the risk of recidivism. She concluded that "if [the petitioner] were released at this time, both his Mental Abnormality and Personality Disorder make it highly likely that he would recidivate sexually," and opined that he met the criteria for sexual dangerousness as defined by G. L. c. 123A, § 1.2

In December, 2010, the Commonwealth filed a petition pursuant to G. L. c. 123A, § 12 (b ), alleging that the petitioner is still sexually dangerous. The Committee for Public Counsel Services assigned the petitioner an attorney, whom the petitioner asked to file a motion to dismiss the SDP petition as untimely.3 In January, 2011, the Commonwealth moved to commit the petitioner to the Massachusetts Treatment Center (treatment center) pending a determination of probable cause pursuant to G. L. c. 123A, § 12 (e ). A Superior Court judge allowed the unopposed motion. That month, the petitioner asked his attorney to withdraw as counsel because the attorney had not filed a motion to dismiss the SDP petition as the petitioner had requested and because, one month into their attorney-client relationship, the two had yet to meet. The attorney did not withdraw at that time, and no formal filings were made requesting his withdrawal.

In February, 2011, the petitioner waived his right to a hearing and stipulated that there was probable cause to believe that he was sexually dangerous. See G. L. c. 123A, § 12 (c ). A Superior Court judge accordingly found probable cause that the petitioner was sexually dangerous, and ordered him committed to the treatment center for a sixty-day period of evaluation, pursuant to G. L. c. 123A, § 13 (a ). While at the treatment center, the petitioner was evaluated by two qualified examiners, as required under G. L. c. 123A, § 13 (a ). In March, 2011, the qualified examiners filed written reports in the Superior Court, concluding that the petitioner was sexually dangerous.

On March 21, 2011, the Commonwealth filed a petition for trial pursuant to G. L. c. 123A, § 14 (a ).4 The trial was scheduled for June, 2011. In April, 2011, the petitioner corresponded with his attorney about retaining experts to assess him, in addition to the qualified examiners that the Commonwealth would present at trial. The attorney suggested two experts; the petitioner agreed to one and not the other. That same month, the petitioner told the attorney that he was not ready to set a trial date, even if this meant waiving his "time limits." The petitioner explained that he needed time to "counter[ ] the [S]tate [qualified examiner] reports" and to ensure that his experts had sufficient time to interview him. He then once again asked his attorney to withdraw, and this time filed a motion requesting that the attorney be dismissed as counsel. The petitioner also filed a pro se motion to dismiss the SDP petition as untimely.

In June, 2011, a Superior Court judge allowed the petitioner's motion to dismiss his counsel, canceled the trial scheduled for that month, and set a status date in July, 2011. Later that month, the Commonwealth moved to continue the status date for another ten days, so that the assistant district attorney could attend to a family matter. The judge set a new hearing date for early August. At the August hearing, a new attorney appeared for the petitioner.

In May, 2012, after no further proceedings had taken place, the assistant district attorney wrote to the petitioner's counsel, proposing to "get this case back on track." At the end of July, without hearing from the petitioner's counsel, the assistant district attorney moved for trial. At an August, 2012, hearing, a Superior Court judge allowed the Commonwealth's motion and the parties set a trial date for November, 2012. At a status hearing in September, the judge allowed a motion by the Commonwealth to continue the trial because one of the qualified examiners was scheduled to be on vacation during the time that the trial was scheduled. The trial was rescheduled for December. The Commonwealth opposed the petitioner's previously-filed pro se motion to dismiss. The Commonwealth also moved for an order to update the qualified examiner reports, which the court allowed.

Later in September, the petitioner's counsel moved to dismiss the petition, arguing that the Commonwealth had failed to begin trial within sixty days of its petition, as required by G. L. c. 123A, § 14 (a ). The following month, finding "sufficient circumstantial evidence" of compliance with G. L. c. 123A, § 14 (a ), the judge denied this motion. By December, the court received updated written reports from the qualified examiners and the petitioner's experts. In a motion and accompanying affidavit filed that month, the petitioner requested that the trial be postponed, because his attorney had not received recordings of his interviews with the qualified examiners. The petitioner also waived his statutory rights to a prompt trial. The judge allowed this motion to continue for "good cause," and set trial for the week of February 4, 2013, the date that the petitioner had requested, in order to accommodate his experts.

In January, 2013, the...

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