Commonwealth v. Medina
| Decision Date | 09 June 2021 |
| Docket Number | SJC-12987 |
| Parties | COMMONWEALTH v. Victor MEDINA. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Jason M. Stelmack, Boston, for the defendant.
Kathryn Sherman, Assistant District Attorney, for the Commonwealth.
Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.
The defendant, Victor Medina, pleaded guilty to indecent assault and battery on a child and received a sentence that included two separate periods of incarceration, the latter of which was to be suspended for three years during which time the defendant would serve probation. After serving the first incarceration period, the defendant spent eight years confined to the Massachusetts Treatment Center (treatment center) as a sexually dangerous person (SDP). See G. L. c. 123A, §§ 1, 14. Upon his release from confinement, he began serving the probation phase of his sentence. Approximately one year later, he was found to have violated conditions of his probation. His probation was revoked, and he was required to serve the portion of his sentence that previously had been suspended.
The defendant now appeals from a denial of his motion to dismiss the revocation proceedings, arguing, as he did in his motion to dismiss, that his probationary term was meant to begin immediately upon the completion of the first incarceration phase of his sentence, during his confinement as a sexually dangerous person, and that it therefore should have terminated prior to the occurrence of the violations.1 We affirm the denial of the defendant's motion.
Background. The defendant was indicted on four counts of rape of a child with force, in violation of G. L. c. 265, § 22A. Pursuant to a plea agreement, he pleaded guilty to four counts of the lesser included offense of indecent assault and battery on a child under fourteen, in violation of G. L. c. 265, § 13B.2 In return, the Commonwealth agreed to join the defendant in making a sentencing recommendation to the judge as follows: on the first two counts, the defendant would serve concurrent two-year terms of imprisonment; and, on the third and fourth counts, the defendant would receive concurrent two-year terms of imprisonment to be suspended for three years, during which time he was to serve a term of probation pursuant to a series of special conditions largely focused on preventing his contact with children.3
At the change of plea and sentencing hearing, the judge reviewed the recommended sentence with the defendant. The judge advised the defendant of the rights he would forgo by pleading guilty, and informed him of the potential consequences of his plea, including that the Commonwealth could petition to have him civilly committed to the treatment center as an SDP for an indeterminate period of time pursuant to G. L. c. 123A.4 The judge accepted and imposed the disposition jointly recommended by the parties.
One month before the defendant was due to complete his sentences on the first two counts and be released from incarceration, the Commonwealth petitioned to have him declared to be an SDP. After a hearing, the defendant was found to be sexually dangerous and was committed to the treatment center. See G. L. c. 123A, § 14. During his time at the treatment center, the defendant consistently informed qualified examiners (i.e., psychiatrists or psychologists who periodically examined him for purposes of assessing his sexual dangerousness) that he expected, intended, and was preparing to serve his three-year probationary term upon his release to the community. Eight years after his initial SDP commitment, the defendant successfully petitioned for discharge from the treatment center. See G. L. c. 123A, § 9. Upon his release, he immediately reported to the probation department and began serving his probationary term on the third and fourth counts.
Approximately one year later, a notice of surrender was filed, alleging that the defendant had violated conditions of his probation, including by contacting one of his victims and that victim's family members. Several months after the initial surrender hearing, the defendant filed the subject motion to dismiss the probation violation proceedings, wherein he took the position for the first time that his probation actually was supposed to have commenced upon the completion of his term of imprisonment on the first two counts and that it therefore should have terminated during his confinement at the treatment center, well before the time of the alleged violations. The motion was denied. After a subsequent hearing, the defendant was found to have violated his probation and was ordered to serve the previously suspended period of incarceration on the third and fourth counts. The defendant appealed from the denial of his motion to dismiss, and we granted his application for direct appellate review.
Discussion. 1. Commencement of probationary term. "When construing a sentencing order we look to the intent of the judge." Commonwealth v. Bruzzese, 437 Mass. 606, 615, 773 N.E.2d 921 (2002). Where, as here, the record consists entirely of documentary evidence, our review of the motion judge's decision is de novo. See Commonwealth v. Mazza, 484 Mass. 539, 547, 142 N.E.3d 579 (2020).
The Appeals Court has had occasion to consider an appeal that similarly involved a defendant's claim that his sentence of probation, imposed "from and after any sentence [he] is now serving," commenced immediately upon the completion of his incarceration, even though he remained civilly committed to the treatment center as an SDP. See Commonwealth v. Sheridan, 51 Mass. App. Ct. 74, 75, 743 N.E.2d 856 (2001). The court concluded that the sentencing judge intended for the defendant's probation to commence upon the defendant's release into the community, i.e., after his civil confinement, rather than immediately upon his release from incarceration. Id. at 77, 743 N.E.2d 856.
In Sheridan, the Appeals Court emphasized that probation has a dual purpose: "rehabilitation of the probationer and protection of the public." Id. at 76, 743 N.E.2d 856, quoting Commonwealth v. Power, 420 Mass. 410, 414, 650 N.E.2d 87 (1995), cert. denied, 516 U.S. 1042, 116 S.Ct. 697, 133 L.Ed.2d 655 (1996). The court observed that probation "allows a criminal offender to remain in the community subject to certain conditions and under the supervision of the court." Sheridan, supra, quoting Commonwealth v. Durling, 407 Mass. 108, 111, 551 N.E.2d 1193 (1990). It further noted that the ultimate goal is for the probationer to "rehabilitate himself or herself under the supervision of the probation officer." Sheridan, supra at 77, 743 N.E.2d 856, quoting Commonwealth v. Olsen, 405 Mass. 491, 493, 541 N.E.2d 1003 (1989).
The Appeals Court went on to conclude that because the sentencing judge imposed the probation to follow the defendant's incarceration, the judge "clear[ly] ... intended the defendant to be supervised by a probation officer at the time he was released from custody and returned to the community." Sheridan, supra. The court further concluded that "the fact that the defendant's release to the community was delayed because of an intervening civil commitment did not change the sentencing judge's intent to have the defendant supervised upon his release from custody." Id. Ultimately, the court concluded that serving probation while confined in a secure facility nullifies the goals of probation, i.e., "rehabilitation under the supervision of a probation officer" and "protection of society." Id.
We cited Sheridan with approval over a decade ago, see Commonwealth v. Bunting, 458 Mass. 569, 570 n.3, 571 n.5, 939 N.E.2d 770 (2010), and continue to find its reasoning persuasive. By its nature, probation is meant to be served while a probationer is living in the community. See Durling, 407 Mass. at 111, 551 N.E.2d 1193. Thus, absent a clear indication to the contrary, we assume that when a judge sentences a defendant to probation following (e.g., "from and after" or "on and after") a term of incarceration, he or she intends that the probationary term be served upon the defendant's release into the community.5 See Bunting, supra at 573, 939 N.E.2d 770 ().
The defendant argues that, here, the sentencing judge made his intention clear regarding the timing of the probationary period because the judge was aware of the possibility that the defendant could be committed as an SDP, yet did not order that the probationary term be stayed during any such commitment. The defendant points to the docket and clerk's log, both of which indicate that the probationary term was to be served "from and after" the "sentence" on the first count, as unambiguous evidence of that intent. We are not convinced.
First, the transcript reveals that the issue was not raised by either of the parties at the change of plea and sentencing hearing, nor was it referenced by the judge at the time of sentencing. At the outset, the prosecutor described the joint recommendation, stating, "The first two indictments the Commonwealth recommends two years direct to the house, and with regard to the latter two indictments, we are recommending two years to the house of correction, suspended for three years with six special conditions." The judge then reviewed that recommendation with the defendant:
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