Commonwealth v. GOODWIN

• Decision Date: 17 September 2010
• Docket Number: SJC-10647.
• Citation: 933 N.E.2d 925,458 Mass. 11
• Parties: COMMONWEALTH v. Ralph W. GOODWIN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

458 Mass. 11

933 N.E.2d 925

COMMONWEALTH

v.Ralph W. GOODWIN.

SJC-10647.

Supreme Judicial Court of Massachusetts,Suffolk.

Argued April 7, 2010.

Decided Sept. 17, 2010.

COPYRIGHT MATERIAL OMITTED.

Bethany Stevens, Assistant District Attorney (Deborah Bercovitch, Assistant District Attorney, with her), for the Commonwealth.

Beth L. Eisenberg, Boston, Committee for Public Counsel Services (Jeannine E. Mercure, Cambridge, with her), for the defendant.

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

GANTS, J.

Acting on a petition for relief brought by the Commonwealth under G.L. c. 211, § 3, a single justice of this court reserved and reported the question “whether a judge has the authority to impose a global positioning system (GPS) monitoring device as an additional condition of probation in a probation modification proceeding” where there was no finding of a violation of a condition of probation. We conclude that, unless a judge finds a violation of a condition of probation, a judge does not have the discretion to impose GPS monitoring as an additional condition of probation where there is no material change in the defendant's circumstances and where GPS monitoring, paired with geographic exclusions, is so punitive as to increase significantly the severity of the original probationary terms. Therefore, the judge was correct to deny the Commonwealth's request to modify the conditions of the defendant's probation to add GPS monitoring and geographic exclusion zones.

Background. On September 13, 1990, the defendant pleaded guilty in the Superior Court to three indictments charging rape of a child by force and one indictment charging kidnapping. On September 28, 1990, the judge sentenced the defendant to two concurrent State prison sentences of from ten to fifteen years on two of the rape convictions and a concurrent sentence of from nine to ten years on the kidnapping conviction. On the third rape conviction, the defendant received a sentence of from thirty to forty years in State prison, suspended for ten years, to be served from and after the committed sentences, with a special condition of probation that the defendant undergo psychiatric treatment. The defendant appealed from his sentence as to the third rape conviction and, after transferring the case from the Appeals Court, we concluded that the sentence was properly imposed. See Commonwealth v. Goodwin, 414 Mass. 88, 605 N.E.2d 827 (1993).

In our review, we summarized the facts of the defendant's case as outlined by the prosecutor before the sentencing judge:

“The defendant had taken the victim, a seven year old boy, away from a social function the victim was attending with his parents by threatening to kill the victim if he refused to go along. The defendant first took the victim to an area underneath a bridge where an act of fellatio occurred. The defendant then brought the victim to the cellar of his (the defendant's) parents' house where other acts of fellatio were performed, and the defendant attempted to sodomize the victim. The victim was confined in the cellar overnight. The next morning the defendant committed an additional act of fellatio, after which the defendant surreptitiously removed the victim from the house in a large cardboard box and sent him home in a taxicab.”

Id. at 89, 605 N.E.2d 827.

Before the defendant's release from State prison in December, 2003, the Commonwealth filed a petition for his civil commitment as a “sexually dangerous person,” G.L. c. 123A, and he remained in custody until he was found sexually dangerous on July 7, 2005, and was civilly committed. On June 9, 2009, after a jury found him no longer sexually dangerous under G.L. c. 123A, § 9, he was released from the treatment center and began serving the probationary term on his third rape conviction.

On June 18, 2009, the probation department sought modification of the defendant's probation conditions. Over the defendant's objection, the judge, who was not the original sentencing judge, ¹ added probation conditions that the defendant have no contact with children under sixteen years of age and stay away from the victim. ²

At a hearing on July 8, 2009, before another judge, the probation department requested that the defendant's probation be further modified to require him (1) to remain in the care of the Department of Mental Health (DMH) and comply with its treatment plan, including taking all prescribed medications and participating in sex offender treatment; and (2) to wear a GPS monitoring device and not enter certain exclusion zones that would include all parks, playgrounds, schools, and libraries. At a subsequent hearing on August 19, one day after the issuance of our decision in Commonwealth v. Cory, 454 Mass. 559, 572, 911 N.E.2d 187 (2009) ( Cory ), where we held that GPS monitoring is “punitive in effect” because of its “substantial burden on liberty,” the judge modified the original probationary condition that the defendant receive psychiatric treatment to include compliance with all programs deemed appropriate for him by DMH, including any recommended sex offender treatment. ³ The judge, however, declined the probation department's request that the defendant wear a GPS device and be prohibited from entering the specified exclusion zones. The judge concluded for two reasons that she had “no legal authority” to add these conditions. First, she found “there is no change in circumstances ... which would support the addition of GPS as a condition.” Second, because GPS monitoring was declared to be “punitive in effect,” id., she indicated that, even if there were such a change in circumstances, it would “amount to ex post facto punishment” to add this condition where the defendant had not violated the terms of his probation.

The Commonwealth moved for reconsideration of the judge's refusal to add probation conditions concerning the GPS device and geographic exclusion zones. On October 9, 2009, the judge denied the motion in a written memorandum and order. The Commonwealth did not file a notice of appeal, but on November 17, 2009, it sought relief, under G.L. c. 211, § 3, from the judge's memorandum and order. The case having been reserved and reported by the single justice, we first address the defendant's contention that it is not properly before us, and then proceed to the merits.

Discussion. 1. Appropriateness of relief under G.L. c. 211, § 3. The defendant argues that relief under G.L. c. 211, § 3, is inappropriate because the Commonwealth could have, but did not, file a direct appeal in the Appeals Court of the judge's denial of its motion to add GPS monitoring and exclusion zones as a condition of probation, or of the judge's denial of its motion for reconsideration. Our discretionary power of review under G.L. c. 211, § 3, is extraordinary and may not be sought “merely as a substitute for normal appellate review.” McMenimen v. Passatempo, 452 Mass. 178, 184, 892 N.E.2d 287 (2008), quoting McGuinness v. Commonwealth, 420 Mass. 495, 497, 650 N.E.2d 780 (1995). A party seeking review under G.L. c. 211, § 3, must demonstrate both a substantial claim of violation of its substantive rights and an error that cannot be remedied under the ordinary review process. McMenimen v. Passatempo, supra at 185, 892 N.E.2d 287. Here, the Commonwealth presents a substantial claim that the judge erred in concluding that she had no legal authority to add GPS monitoring and exclusion zones as a condition of probation where there was no violation of probation. We need not decide whether this alleged error could have been remedied under the ordinary review process because, “[w]here the single justice has, in [her] discretion, reserved and reported the case to the full court, we grant full appellate review of the issues reported.”

Martin v. Commonwealth, 451 Mass. 113, 119, 884 N.E.2d 442 (2008). ⁴

2. Modification of the defendant's probation conditions. Probation is a legal disposition that conditions the release of a defendant on his compliance with conditions deemed appropriate by the sentencing judge. See Commonwealth v. Durling, 407 Mass. 108, 111-112, 551 N.E.2d 1193 (1990). If a defendant violates one or more conditions of probation, a judge may revoke his probation and sentence him to a term of imprisonment for his underlying conviction, or return the defendant to probation, with new or revised conditions. ⁵ See id. Therefore, for a defendant, any condition of probation poses the risk that its violation may result in the revocation of probation and the end of his conditional release from imprisonment.

The two principal goals of probation are rehabilitation of the defendant and protection of the public. See Commonwealth v. Pike, 428 Mass. 393, 403, 701 N.E.2d 951 (1998); Mariano v. Judge of Dist. Court of Cent. Berkshire, 243 Mass. 90, 93, 137 N.E. 369 (1922) (“purpose [of probation] ... is to enable the person to get on his feet, to become law abiding and to lead a useful and upright life under the fostering influence of the probation officer”). While these goals are intertwined, because a defendant who is rehabilitated is not committing further crimes, they remain distinct, because a probation condition that protects the public from the defendant may not advance the likelihood of his rehabilitation. The success of probation as a correctional tool depends on judges having the flexibility at sentencing to tailor probation conditions to the circumstances of the individual defendant and the crime that he committed. Commonwealth v. Lapointe, 435 Mass. 455, 459-460, 759 N.E.2d 294 (2001).

Under Mass. R.Crim. P. 29(a), 378 Mass. 899 (1979), the power of a trial judge to revise or revoke a criminal disposition is severely limited. Under rule 29(a), a trial judge may revise or revoke a sentence only on her own motion or the written motion of a defendant filed within sixty days after the imposition of sentence, ⁶ and “may not take...