Commonwealth v. Guzman
| Decision Date | 25 August 2014 |
| Docket Number | SJC–11483. |
| Citation | 469 Mass. 492,14 N.E.3d 946 |
| Parties | COMMONWEALTH v. Jose A. GUZMAN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Thomas E. Bocian, Assistant Attorney General (Timothy J. Wyse, Assistant Attorney General, with him) for the Commonwealth.
Ryan M. Schiff, Committee for Public Counsel Services, for the defendant.
Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.1
LENK
, J.
In the case before us, a Superior Court judge declined to include global positioning system (GPS) monitoring as a condition of the probationary portion of the sentence she imposed
following the defendant's pleas of guilty to several offenses. One of those offenses was the dissemination of visual material depicting a child in a state of nudity or sexual conduct, one of the “sex offense[s] involving a child” enumerated in G.L. c. 265, § 47
, that requires a defendant convicted of such an offense to be subject to GPS monitoring as a condition of any term of probation, during “the length of his probation for any such offense.” We are called upon to decide whether the imposition of GPS monitoring in such circumstances is mandatory and, if so, whether such statutory mandate either constitutes an unreasonable search and seizure pursuant to the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights, or violates substantive and procedural due process pursuant to the Fourteenth Amendment to the United States Constitution and arts. 1, 10, 11, and 12 of the Massachusetts Declaration of Rights.
It is plain that G.L. c. 265, § 47
, affords a sentencing judge no discretion whether to impose GPS monitoring on a defendant sentenced, as here, to a probationary term for an enumerated offense. Although, given the inadequate record before us, we do not reach the defendant's Fourth Amendment claim, we conclude that G.L. c. 265, § 47, does not violate the defendant's right to due process. Because the statute applied to the defendant in the circumstances, and because there was no constitutional bar to its application, the failure to include GPS monitoring as a condition of the defendant's probation was error.2
1. Background. On August 15, 2011, a Suffolk County grand jury issued two indictments charging dissemination or possession
of obscene matter, G.L. c. 272, § 29
; two indictments charging dissemination of visual material depicting a child in a state of nudity or sexual conduct, G.L. c. 272, § 29B, a predicate offense under G.L. c. 265, § 47 ; and one indictment charging purchase or possession of visual material depicting a child involved in sexual conduct, G.L. c. 272, § 29C. The defendant, who had no previous convictions of a sex offense, had acquired child pornography through LimeWire, an Internet-based file sharing system. The allegation that the defendant engaged in distribution stemmed from the fact that the defendant's use of LimeWire's default settings3 permitted other users to access his files.
In conjunction with a proposed plea agreement, the Commonwealth submitted a sentencing memorandum proposing that the defendant be sentenced to from four to five years in State prison followed by ten years of probation.4 After conducting two lobby conferences and reviewing an expert forensic evaluation of the materials found on the defendant's computer, the judge convened a plea and sentencing hearing on December 10, 2012. During the defendant's plea colloquy, the judge and both counsel discussed whether the defendant would be required to wear a GPS device as one of the conditions of his probation. A member of the court staff informed the judge that the imposition of GPS monitoring as a condition of probation was discretionary. The judge then sentenced the defendant to a one-year term of incarceration for his convictions under G.L. c. 272, §§ 29
and 29C, and to a probationary period of five years for his convictions under G.L. c. 272, §§ 29 and 29B. She declined to require that the defendant wear a GPS device as a condition of probation.
Three days later, the Commonwealth sought and was granted a further hearing, at which it argued that, pursuant to G.L. c. 265, § 47
, GPS monitoring was a required condition of probation for the offense of dissemination of visual material depicting a child in a state of nudity or sexual conduct to which the defendant had pleaded guilty. The judge again declined to impose GPS monitoring.5
In so doing, she noted that the statute was “problematic” for its failure to distinguish between contact sex offenders and noncontact offenders, and explained that “dealing with this case individually” had led her to conclude that GPS monitoring was unnecessary. Several months later, the Commonwealth filed a petition for relief in the county court, pursuant to G.L. c. 211, § 3
, requesting that the single justice vacate the defendant's sentence and remand for further proceedings in accordance with G.L. c. 265, § 47.6 The defendant opposed the petition, arguing that GPS monitoring would violate his right against unreasonable searches and seizures and his right to due process under both the State and Federal Constitutions. The single justice reserved and reported the case to the full court.
2. Discussion. a. Requirements under G.L. c. 265, § 47
. The parties dispute whether G.L. c. 265, § 47, mandates GPS monitoring as a condition of the defendant's probation. The Commonwealth contends that, where a defendant is convicted of an enumerated offense and subsequently sentenced to a term of probation, the sentencing judge has no discretion to decline to impose GPS monitoring as a condition of that probation. The defendant maintains, to the contrary, that the judge is permitted to determine on a case-by-case basis whether GPS monitoring is appropriate given a defendant's risk of reoffense.
To determine whether G.L. c. 265, § 47
, affords a sentencing judge any discretion concerning the imposition of GPS monitoring as a term of probation for certain predicate offenses, we begin with the plain language of the statute. See Commonwealth v. Hanson H., 464 Mass. 807, 810, 985 N.E.2d 1179 (2013), quoting Commonwealth v. Raposo, 453 Mass. 739, 743, 905 N.E.2d 545 (2009). Ordinarily, we will “not look beyond the words of the statute where the language is plain and unambiguous,” State Bd. of Retirement v. Boston Retirement Bd., 391 Mass. 92, 94, 460 N.E.2d 194 (1984), nor will we add words to the statute that the Legislature did not see fit to include. Commissioner of Correction v. Superior Court Dep't of the Trial Court for the County of Worcester, 446 Mass. 123, 126, 842 N.E.2d 926 (2006).
General Laws c. 265, 47, provides, in relevant part:
In turn, G.L. c. 6, § 178C
, defines the terms “[s]ex offense” and “[s]ex offense involving a child” to include the dissemination of visual material depicting a child in a state of nudity or sexual conduct, as set forth in G.L. c. 272, § 29B.
Because “[t]he word ‘shall’ is ordinarily interpreted as having a mandatory or imperative obligation,” Hashimi v. Kalil, 388 Mass. 607, 609, 446 N.E.2d 1387 (1983)
, we have determined that the GPS requirement of G.L. c. 265, § 47, applies to any defendant who has been convicted of a predicate offense and sentenced to a term of probation. See Commonwealth v. Canadyan, 458 Mass. 574, 575 n. 2, 944 N.E.2d 93 (2010) (); Commonwealth v. Cory, 454 Mass. 559, 569, 911 N.E.2d 187 (2009) (). Thus, we conclude that G.L. c. 265, § 47, affords judges no discretion to decide whether GPS monitoring should apply in any particular set of circumstances; where a defendant is convicted of a qualifying offense and is sentenced to a term of probation, the sentencing judge must impose GPS monitoring as a condition of that probation.7
b. Constitutional claims. We turn to the defendant's constitutional arguments. The defendant contends that the imposition of GPS monitoring would violate his right to due process under both the Federal and State Constitutions. Specifically, he objects to the determination that G.L. c. 265, § 47
, affords a sentencing judge no discretion to decide whether GPS monitoring ought to be imposed on an individual defendant, including those who have committed only noncontact offenses. Because the Legislature may
establish, within constitutional limits, mandatory minimum sentences for certain predicate offenses, and because G.L. c. 265, § 47
, constitutes no more than such a sentence, we conclude that the imposition of GPS monitoring on the defendant would not offend due process. The defendant also maintains that GPS monitoring would encroach upon his Fourth Amendment right to be free of unreasonable searches and seizures. The record here, however, is too sparse to permit an adequate assessment of the defendant's Fourth Amendment claim, and we accordingly decline to reach it.8
i. Due process. “A probation condition is enforceable, even if it infringes on a defendant's ability to exercise constitutionally protected rights, so long as the condition is ‘reasonably related’ to the goals of sentencing and probation.” Commonwealth v. Lapointe, 435 Mass. 455, 459, 759 N.E.2d 294 (2001)
, quoting Commonwealth v. Pike, 428 Mass. 393, 403, 701 N.E.2d 951 (1998). See Commonwealth v. Goodwin, 458 Mass. 11, 17,...
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