Commonwealth v. Hanson H.

• Citation: 985 N.E.2d 1179,464 Mass. 807
• Decision Date: 11 April 2013
• Docket Number: SJC–11121.
• Parties: COMMONWEALTH v. HANSON H., a juvenile.
• Court: United States State Supreme Judicial Court of Massachusetts

464 Mass. 807

985 N.E.2d 1179

COMMONWEALTH

v.HANSON H., a juvenile.

SJC–11121.

Supreme Judicial Court of Massachusetts,

Hampden.

Argued Dec. 6, 2012.

Decided April 11, 2013.

Ryan M. Schiff, Committee for Public Counsel Services (Stephanie Stolk Ormsby, Committee for Public Counsel Services, with him) for the juvenile.

Katherine A. Robertson, Assistant District Attorney, for the Commonwealth.

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

GANTS, J.

The issue presented in this case is whether a Juvenile Court judge is required under G.L. c. 265, § 47, to order a juvenile to wear a global positioning system device that will monitor his whereabouts (GPS monitoring) as a condition of probation where a juvenile is adjudicated delinquent and placed on probation for committing a “sex offense,” a “sex offense involving a child,” or a “sexually violent offense,” as defined in G.L. c. 6, § 178C. We conclude that, when § 47 is read in its entirety, it is not apparent that the Legislature intended to apply mandatory GPS monitoring to juveniles placed on probation as a result of having been adjudicated delinquent and thereby eliminate the discretion granted to Juvenile Court judges to render individualized dispositions consistent with the best interests of the child. We also conclude that, where the Legislature has established the statutory principle that, “as far as practicable, [juveniles] shall be treated, not as criminals, but as children in need of aid, encouragement and guidance,” G.L. c. 119, § 53, we will not interpret a statute affecting the delinquency adjudications of juveniles to conflict with this principle in the absence of clear legislative intent. Here, where such clear legislative intent is absent, we conclude that a Juvenile Court judge retains the discretion, based on the totality of the circumstances, to determine whether GPS monitoring should be imposed as a condition of probation for a juvenile who is adjudicated delinquent after committing a sex offense. ¹

Background. The juvenile, a fifteen year old boy, was accused of rubbing his fingers over the clothing covering a female classmate's genital area in physical education class. He was arraigned in the Juvenile Court on a complaint alleging indecent assault and battery on a person under the age of fourteen, in violation of G.L. c. 265, § 13B. On July 19, 2011, he pleaded delinquent and was placed on supervised probation for a period of six months, with the conditions that he stay away from and have no contact with the victim and that he participate in counselling.² On the same day as the plea, the judge granted the juvenile's assented-to motion to be relieved of his duty to register as a sex offender, implicitly finding that the juvenile did not “pose a risk of reoffense or danger to the public.” See G.L. c. 6, § 178E ( f ). Although the juvenile was not advised during the plea colloquy that GPS monitoring would be required as a condition of probation, the judge entered an order on August 3, 2011, requiring the juvenile to wear a GPS monitoring device during the term of his probation. On August 30, 2011, the juvenile filed a motion for relief from GPS monitoring. The judge denied the motion, recognizingthat GPS monitoring “certainly places a juvenile in a situation where [he] may be excluded from healthy, normal activities and rehabilitative activities,” but concluding that under § 47, the judge had “no discretion to relieve the [juvenile] from the obligation of wearing a GPS.” We granted the juvenile's application for direct appellate review.

Discussion.General Laws c. 265, § 47, provides in pertinent part:

“Any person who is placed on probation for any offense listed within the definition of ‘sex offense’, a ‘sex offense involving a child’ or a ‘sexually violent offense’, as defined in section 178C of chapter 6, shall, as a requirement of any term of probation, wear a global positioning system device, or any comparable device, administered by the commissioner of probation, at all times for the length of his probation for any such offense. The commissioner of probation, in addition to any other conditions, shall establish defined geographic exclusion zones including, but not limited to, the areas in and around the victim's residence, place of employment and school and other areas defined to minimize the probationer's contact with children, if applicable. If the probationer enters an excluded zone, as defined by the terms of his probation, the probationer's location data shall be immediately transmitted to the police department in the municipality wherein the violation occurred and the commissioner of probation, by telephone, electronic beeper, paging device or other appropriate means. If the commissioner or the probationer's probation officer has probable cause to believe that the probationer has violated this term of his probation, the commissioner or the probationer's probation officer shall arrest the probationer pursuant to section 3 of chapter 279....”

The Commonwealth argues that it is plain from the first sentence of § 47 that mandatory GPS monitoring applies to juveniles, because “[a]ny person” includes any juvenile, and “shall” is “understood to be a mandatory term.” We agree that, in interpreting a statute, “[w]e begin with the language of the statute,” Commonwealth v. Raposo, 453 Mass. 739, 743, 905 N.E.2d 545 (2009)( Raposo ), and “[w]hen a statute is plain and unambiguous, we interpret it according to its ordinary meaning.” Id. at 745, 905 N.E.2d 545, quoting Commonwealth v. Russ R., 433 Mass. 515, 520, 744 N.E.2d 39 (2001). But we look to the language of the entire statute, not just a single sentence, and attempt to interpret all of its terms “harmoniously to effectuate the intent of the Legislature.” Id. See DiFiore v. American Airlines, Inc., 454 Mass. 486, 491, 910 N.E.2d 889 (2009) (“Where possible, we construe the various provisions of a statute in harmony with one another, recognizing that the Legislature did not intend internal contradiction”). Our goal is “to determine the intent of the Legislature in enacting the statute, ‘ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated.’ ” Halebian v. Berv, 457 Mass. 620, 628–629, 931 N.E.2d 986 (2010), quoting Harvard Crimson, Inc. v. President & Fellows of Harvard College, 445 Mass. 745, 749, 840 N.E.2d 518 (2006).

Although the language of the first sentence of § 47 suggests that the Legislature intended to include juveniles within its mandate, the language of the second and fourth sentences of the statute suggests that the Legislature understood that the probationers subject to mandatory GPS monitoring would be adults. The second sentence requires the Commissioner of Probation to establish “geographic exclusion zones” that the probationer may not enter, including “the areas in and around the victim's ... school and other areas defined to minimize the probationer's contact with children, if applicable.” It is unlikely that the Legislature intended to minimize a probationer's contact with children where the probationer himself is a child.³ And although it may be appropriate in many instances to bar a juvenile who has committed a sexual offense from the school the victim attends even if the juvenile and the victim had been attending the same school, it is unlikely that the Legislature intended to mandate such an exclusion for all juvenile probationers adjudicated delinquent for a qualifying sex offense, especially where a juvenile may be placed on probation for engaging in an indecent touching of a child under fourteen years of age or sexual intercourse with a child under sixteen years of age that would be consensual if a child of that age were legally capable of consent. See G.L. c. 6, § 178C (including indecent assault and battery on child under fourteen years of age, in violation of G.L. c. 265, § 13B, and statutory rape of child, in violation of G.L. c. 265, § 23, within definition of “sex offense involving a child”).

The fourth sentence of § 47 provides that, where a probation officer has probable cause to believe that the probationer has violated his probation by entering an excluded zone, the probation officer “shall arrest the probationer pursuant to [G.L. c. 279, § 3]” (emphasis added). General Laws c. 279, § 3, which provides that a probation officer may arrest a person under probation supervision without a warrant and take him before the court, applies only to adults, not to juveniles.⁴General Laws c. 119, § 59, governs a probation officer's arrest of a child on probation. ⁵ If the Legislature intended that mandatory GPS monitoring apply both to adult and juvenile probationers, one would expect that, in § 47, the Legislature would have referenced both G.L. c. 279, § 3, and G.L. c. 119, § 59, in providing for the arrest of probationers who violated the terms of their probation by entering the excluded zone.

In view of this ambiguity, we look to the legislative history of § 47 to see if it sheds light on whether the Legislature intended § 47 to apply to juvenile probationers. It does not. In early 2005, the Commonwealth initiated a program to utilize a global positioning system and electronic bracelets to monitor the movements of level three sex offenders placed on parole and probation. See St.2004, c. 352, § 70 (providing “that $1,000,000 shall be expended for the Commissioner of Probation to implement a global positioning system in collaboration with the Massachusetts parole board utilizing tamper free ankle bracelets to track level 3 sex offenders actively on parole and sex offenders currently being supervised by the office of the commissioner of probation and deemed appropriate for said...