Scione v. Commonwealth

Decision Date15 January 2019
Docket NumberSJC-12540,SJC-12536
Citation481 Mass. 225,114 N.E.3d 74
Parties William SCIONE v. COMMONWEALTH. Commonwealth v. David W. Barnes.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Steven Van Dyke, Committee for Public Counsel Services (Patrick Levin, Committee for Public Counsel Services, also present) for William Scione.

Christopher B. Coughlin, Boston, (Alexander C. Conley also present) for David W. Barnes.

Catherine Langevin Semel & Marina Moriarty, Assistant District Attorneys, for the Commonwealth.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, & Cypher, JJ.

BUDD, J.

Here we are called upon to determine whether G. L. c. 276, § 58A ( § 58A ), the pretrial detention statute, may be applied to David W. Barnes and William Scione, charged with violating G. L. c. 265, § 23A ( § 23A ) (rape of child aggravated by age difference, i.e., statutory rape), and G. L. c. 266, § 102A ( § 102A ) (use of incendiary device), respectively. We conclude that § 23A does not qualify as a predicate offense under § 58A in its current form,1 and that, depending upon the circumstances, § 102A may (and, in this case, does) so qualify.

1. Statutory scheme of § 58A. Section 58A, which provides for the pretrial detention of certain defendants, "seek[s] systematically to identify those who may present a danger to society and to incapacitate them before that danger may be realized" (citation omitted). Mendonza v. Commonwealth, 423 Mass. 771, 780, 673 N.E.2d 22 (1996). The Commonwealth may move for a dangerousness hearing pursuant to § 58A if a defendant has been charged with one or more predicate offenses as defined under the statute.

G. L. c. 276, § 58A (4).

If an individual has been charged with a predicate offense as defined by § 58A, a hearing may be held to determine whether the individual should be released either on personal recognizance, under particular conditions, or not at all. G. L. c. 276, § 58A (2). A judge may order pretrial detention if he or she finds that the Commonwealth has established by clear and convincing evidence that "no conditions of release will reasonably assure the safety of any other person or the community." G. L. c. 276, § 58A (3).

Predicate offenses under § 58A either are specifically enumerated in the statute2 or fall within one (or more) of the following categories: (1) those felonies that "ha[ve] as an element of the offense the use, attempted use or threatened use of physical force against the person of another" (force clause); (2) "any other felony that, by its nature, involves a substantial risk that physical force against the person of another may result" (residual clause); or (3) "a misdemeanor or felony involving abuse as defined in [ G. L. c. 209A, § 1 ]" (abuse clause). G. L. c. 276, § 58A (1).

We are tasked with determining whether § 23A and § 102A, neither of which is specifically enumerated in § 58A, fall within one of the other specified categories of offenses identified in the pretrial detention statute.

2. Barnes and § 23A. a. Background. We summarize the facts alleged and procedural history provided in the record of the proceedings against Barnes. After reportedly communicating through social media, the victim and Barnes met at a predetermined location and then proceeded to a hotel, where they engaged in sexual intercourse. The victim later reported to police that Barnes had sexually assaulted her. At the time of the incident, the victim was fifteen years old and Barnes was forty-three years old.

Barnes was charged with, among other things,3 statutory rape in violation of § 23A, which provides in pertinent part:

"Whoever unlawfully has sexual intercourse or unnatural sexual intercourse, and abuses a child under [sixteen] years of age and ... (b ) there exists more than a [ten-]year age difference between the defendant and the victim where the victim is between the ages of [twelve] and [sixteen] years of age ... shall be punished ...."

At arraignment in the District Court, the Commonwealth moved to detain Barnes pursuant to § 58A. Following a dangerousness hearing, the Commonwealth's § 58A motion was allowed and Barnes was ordered held. Barnes appealed to the Superior Court, arguing that (1) § 23A does not qualify as a predicate offense under the force clause of § 58A ; and (2) the residual clause of § 58A is unconstitutionally vague. A Superior Court judge agreed and reversed the District Court's judge's § 58A pretrial detention order. The Commonwealth filed a petition for extraordinary relief in the county court. G. L. c. 211, § 3. A single justice of this court reserved and reported the case for consideration by the full court.4 b. The force clause of § 58A. The force clause of § 58A is straightforward: an offense qualifies as a predicate crime pursuant to this clause if "an element of the offense is the use, attempted use or threatened use of physical force against the person of another." G. L. c. 276, § 58A (1). In making this determination, we take a categorical approach, that is, look at the elements of the offense, rather than the facts of or circumstances surrounding the alleged conduct. Commonwealth v. Young, 453 Mass. 707, 711-712, 905 N.E.2d 90 (2009).

The elements of the crime of statutory rape in violation of § 23A are that the defendant (1) had sexual intercourse or unnatural sexual intercourse with (2) a child between twelve and sixteen years of age, and (3) there is more than a ten-year gap between the ages of the defendant and the victim. See G. L. c. 265, § 23A. Compare Commonwealth v. Bernardo B., 453 Mass. 158, 172, 900 N.E.2d 834 (2009) (discussing elements of G. L. c. 265, § 23, "rape and abuse of child"). On its face, § 23A does not have as an element "the use, attempted use or threatened use of force." G. L. c. 276, § 58A (1). See Bernardo B., supra ("Force is not a necessary element of the crime"). The Commonwealth contends that a charge of statutory rape nevertheless qualifies as a predicate offense under the force clause of § 58A because statutory rape contains an inherent element of force and the act of penetration on a child may substitute for the physical force requirement of the force clause.

To support its position, the Commonwealth points to cases in which the defendant is charged with forcible rape pursuant to G. L. c. 265, § 22 ( § 22 ), and the (adult) complainant was unable to give or refuse consent due to being intoxicated or otherwise incapacitated. We have held that there, "the only force required for proof of the crime is ‘such force as was necessary to accomplish’ the act of intercourse -- that is, only the force necessary to effect penetration." Commonwealth v. Blache, 450 Mass. 583, 589, 880 N.E.2d 736 (2008), quoting Commonwealth v. Burke, 105 Mass. 376, 380 (1870). The Commonwealth reasons that because a child is legally incapable of consenting to sexual intercourse, see Commonwealth v. Wilbur W., 479 Mass. 397, 398-399, 95 N.E.3d 259 (2018), the act of penetration of a child satisfies the element of physical force required by § 58A. This argument is flawed.

Unlike § 23A, § 22 includes as an element the use or threatened use of force.5 The fact that the element of force in § 22 may be satisfied in some cases by the act of penetration has nothing at all to do with whether § 23A includes the use of force as an element of the crime. The fact that a child is incapable of consenting to sexual intercourse is relevant not to whether there is an element of force in statutory rape, but instead to whether consent is a defense to the crime (it is not).

Importantly, the crime of forcible rape of a child, G. L. c. 265, § 22A, which punishes "[w]hoever has sexual intercourse or unnatural sexual intercourse with a child under [sixteen], and compels such child to submit by force and against his will or compels such child to submit by threat of bodily injury," does qualify as a predicate offense under the force clause of § 58A (emphasis added). The fact that the Legislature saw fit to create two separate statutory rape offenses -- one that includes the use of force and one that does not -- further supports our conclusion that § 23A does not contain as an element the use of force.

Because "the use, attempted use or threatened use of physical force" is not an element of § 23A, the statute does not qualify as a predicate offense under the force clause of § 58A.

c. The residual clause of § 58A. The Commonwealth also maintains that § 23A is a predicate offense under the residual clause of § 58A, and that the motion judge erred in concluding that the clause is unconstitutionally vague. We agree with the motion judge.

A statute is unconstitutionally vague when "it lacks ... certainty and definiteness ... so that a [person] of ordinary intelligence [is unable] to ascertain whether any act or omission of his [or hers], as the case may be, will come within the sweep of the statute." Commonwealth v. Slome, 321 Mass. 713, 715, 75 N.E.2d 517 (1947). See Commonwealth v. Reyes, 464 Mass. 245, 249, 982 N.E.2d 504 (2013). See also Sessions v. Dimaya, ––– U.S. ––––, 138 S.Ct. 1204, 1212, 200 L.Ed.2d 549 (2018) (opinion of Kagan, J.) ( Dimaya ). However, "[t]he degree of vagueness that is permissible under principles of due process varies with the interests involved."6 Chief of Police of Worcester v. Holden, 470 Mass. 845, 854, 26 N.E.3d 715 (2015) (citation omitted). See Dimaya, supra at 1212 (opinion of Kagan, J.).

The United States Supreme Court declared a similar residual clause, found in 18 U.S.C. § 924(e)(2)(B)(ii) (2012), known as the Armed Career Criminal Act (ACCA), to be unconstitutionally vague. Johnson v. United States, ––– U.S. ––––, 135 S.Ct. 2551, 2556, 192 L.Ed.2d 569 (2015). The ACCA, which more severely punishes those defendants with three or more previous violent felony convictions, defines "violent felony" to include "any crime punishable by imprisonment for a term exceeding one year ... that ... involves conduct that presents a serious...

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