Commonwealth v. Porter

• Decision Date: 30 July 2015
• Docket Number: No. 13–P–1668.,13–P–1668.
• Citation: 34 N.E.3d 763,87 Mass.App.Ct. 676
• Parties: COMMONWEALTH v. Kevin PORTER.
• Court: Appeals Court of Massachusetts

87 Mass.App.Ct. 676

34 N.E.3d 763

COMMONWEALTH

v.Kevin PORTER.

No. 13–P–1668.

Appeals Court of Massachusetts, Middlesex.

Argued Dec. 8, 2014.

Decided July 30, 2015.

Leslie B. Salter for the defendant.

Randall F. Maas, Assistant District Attorney, for the Commonwealth.

Present: KAFKER, GRAINGER, & AGNES, JJ.

Opinion

AGNES

, J.

This case presents a question not previously addressed by the Supreme Judicial Court or this court about the scope of the statute which punishes an escape or an attempted escape by “[a] prisoner of any penal institution.” G.L. c. 268, § 16

.¹ In particular,

we are asked to determine whether a person serving a house of correction sentence, which was ordered to be served on weekends, see G.L. c. 279, § 6A

,² who fails to report by 6:00 p.m. on a particular weekend, as required by the terms of his sentence, has “escaped” within the meaning of § 16

because he “fail[ed] to return from any temporary release from said institution.” G.L. c. 268, § 16. For the reasons that follow, we answer that question in the affirmative, and we affirm the order denying the defendant's motion to withdraw his guilty plea.

Background. The essential facts are not in dispute. On December 14, 2007, the defendant, Kevin Porter, pleaded guilty to one count of escape from a penal institution in violation of G.L. c. 268, § 16

, and was sentenced to ten days in a house of correction, to be served consecutively after completion of a sentence he was then currently serving.³ At the time of his plea, the defendant was serving a house of correction sentence of one year, six months to serve, with the balance suspended for eighteen months. The sentencing judge specifically had ordered that sentence to be served on weekends, beginning on August 3, 2007. See G.L. c. 279, § 6A. On Friday, August 24, 2007, the defendant failed to appear by 6:00 p.m. to serve his weekend sentence as required by G.L. c. 279, § 6A. The defendant telephoned the house of correction to warn them that he could not appear at the

scheduled time. The defendant returned to the house of correction on Saturday, August 25, 2007, at 7:15 p.m. and was taken into custody.⁴

Discussion. On August 29, 2012, the defendant filed a motion for a new trial seeking to withdraw his guilty plea to the escape charge. See Commonwealth v. Penrose, 363 Mass. 677, 680–681, 296 N.E.2d 819 (1973)

(motion for new trial is proper vehicle to request to withdraw plea of guilty). The defendant contends that under the statutory definition of the offense the escape must be from a jail or house of correction or from the custody of a correction officer; in other words, that unless a person is in a penal institution or in the “custody” of a correction officer, his conduct in failing to appear to serve a weekend sentence is a violation of a court order and may give rise to a proceeding for contempt, but is not an “escape” under G.L. c. 268, § 16. As a result, he maintains that there was no factual basis for his guilty plea because, he argues, the actions alleged here do not satisfy all the elements of the crime set out in G.L. c. 268, § 16

. See Commonwealth v. Palladino, 358 Mass. 28, 31, 260 N.E.2d 653 (1970) (“A conviction on an indictment that charges no crime would be sheer denial of due process”); Commonwealth v. Wilson, 72 Mass.App.Ct. 416, 418, 892 N.E.2d 751 (2008) (“A jurisdictional defect may be raised at any time ... and is not waived by the defendant's guilty plea”).

The defendant contends that his position finds support in the text of G.L. c. 268, § 16

, which applies to “[a] prisoner of any penal institution” and to “a prisoner committed to any jail or correctional institution who escapes ... from the custody of any officer thereof ... or fails to return from any temporary release from said institution under the provisions of [G.L. c. 127, § 90A,] or fails to return from any temporary release from said institution, center or branch....” According to the defendant, the reference in § 16 to G.L. c. 127, § 90A,⁵ which authorizes the

Commissioner of Correction and sheriffs to give committed offenders special, temporary releases of up to seven days, not to exceed fourteen days a year, means that, other than with regard to escapes by persons who are in actual custody in a facility at the time of the act, the escape statute applies only to committed offenders who receive one of these special, temporary releases.

The defendant's reading of G.L. c. 268, § 16

, disregards prior precedents interpreting § 16 and is contrary to the plain meaning of the text. First, the house of correction where the defendant was serving his weekend sentence qualifies as a “penal institution.” Commonwealth v. Faulkner, 8 Mass.App.Ct. 936, 396 N.E.2d 1024 (1979). See Commonwealth v. Clay, 65 Mass.App.Ct. 215, 216–217, 837 N.E.2d 725 (2005), citing G.L. c. 125, § 1(d ), (k ). Second, G.L. c. 279, § 6A, pursuant to which he received a sentence to be served on weekends, designates the sentence as “a special sentence of imprisonment.” Moreover, the “custody” referred to in § 16 has been read to include constructive custody as well as actual custody. Thus, the defendant was “[a] prisoner of [a] penal institution.” G.L. c. 268, § 16. And the pertinent portion of § 16 reads that a prisoner who “fails to return from any temporary release from said institution under the provisions of [G.L. c. 127, § 90A,] or fails to return from any temporary release from said institution ... shall be punished by imprisonment ...” (emphasis supplied). While the first reference in § 16 to “temporary release” explicitly refers to G.L. c. 127, § 90A

, the next reference to “temporary release” in the following phrase (“or fails to return from any temporary release from said institution”) does not. It is a basic canon of statutory construction that every word in a statute should

be given meaning and that no word is considered superfluous. See Casa Loma, Inc. v. Alcoholic Bevs. Control Commn., 377 Mass. 231, 234, 385 N.E.2d 976 (1979)

; Boone v. Commerce Ins. Co., 451 Mass. 192, 196, 884 N.E.2d 483 (2008). Thus, it is apparent that the Legislature in the two separate phrases was referring to two separate situations, the second of which applies here.

Further, we note that in Commonwealth v. Hughes, 364 Mass. 426, 429, 305 N.E.2d 117 (1973)

(Hughes ), the Supreme Judicial Court held that G.L. c. 268, § 16, applied to a defendant who was serving a sentence of incarceration and who did not return from a furlough granted pursuant to G.L. c. 127, § 90A, notwithstanding the fact that the version of § 16 at the time did not contain any reference to “temporary release” or to § 90A. See G.L. c. 268, § 16, as amended through St. 1955, c. 770, § 82. The Court reasoned, construing § 16 in light of the statute's (1) “over-all purpose of deterring and punishing prisoner escapes” and (2) the concept of “constructive custody,” which the court noted was implicit in the furlough program established by G.L. c. 127, § 90A, that the language in question found in § 16 —“[a] prisoner of any penal institution”—should be interpreted to include both prisoners who are in actual custody as well as those in constructive custody. Id. at 429–430, 305 N.E.2d 117.⁶

, ⁷

General Laws c. 268, § 16, has since been

amended to explicitly include a prisoner who “fails to return from any temporary release ... under the provisions of [G.L. c. 127, § 90A

,] or fails to return from any temporary release from said institution....”

Hughes was followed by Commonwealth v. Best, 381 Mass. 60, 407 N.E.2d 1214 (1980)

(Best ). There, the Court held that a prisoner serving a house of correction sentence and assigned to a prerelease center who failed to return to the center from a work release program was subject to prosecution for an escape pursuant to G.L. c. 268, § 16, even though the work release statute, G.L. c. 127, § 86F, contains language punishing those who escape from a work release program.⁸ In Best, the Court reasoned that “[e]ven though the Legislature did not repeat the ‘extend the limits of ... confinement’ language of [G.L. c. 127,] § 90A, [in G.L. c. 127, § 86F,] the Legislature in § 86 did define an escape, which constituted an ‘escape from any penal institution’ within the meaning of G.L. c. 268, § 16,” thus bringing the “conduct within the reach of § 16.” Id. at 63, 407 N.E.2d 1214.

In the present case, once the defendant began to serve his six-month sentence on Friday, August 3, 2007, he was obligated under that sentence to report to the correctional institution on successive weekends until he satisfied the terms of his sentence. The defendant's release each Monday morning was a “temporary release from said institution” within the meaning of G.L. c. 268, § 16

, and during such periods, until he completed service of his sentence, he was “[a] prisoner of [a] penal institution” in constructive

custody of that institution. Cf. Hughes, 364 Mass. at 429–430, 305 N.E.2d 117

. When the defendant failed without justification to return to the institution by 6:00 p.m. on the Friday in question, he, “[a] prisoner of [a] penal institution” (the house of correction) violated the provision of G.L. c. 268, § 16, punishing the “fail[ure] to return from any temporary release from said institution.” This reading of § 16 is in keeping with the common and approved usage of the words “temporary release” used by the Legislature, see G.L. c. 4, § 6, Third,⁹ and it also accords with the overarching legislative purpose underlying G.L. c. 268, § 16, “of deterring and punishing prisoner escapes.” See Hughes, 364 Mass. at 429, 305 N.E.2d 117.¹⁰ See also Commonwealth v. Reed, 364 Mass. 545, 547, 306 N.E.2d 816 (1974)

(“[I]t is our view that, in interpreting escape statutes, there is justification for adopting a construction which permits the punishment of all escaping prisoners”).

Order denying motion for new trial affirmed.

1 General Laws c. 268, § 16

, as appearing in St.1993, c. 376, reads as follows: “A prisoner...