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Opinions of The and the Court of Appeals To be used in
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CPS Commonwealth
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Commonwealth
v. Shedlock (2003)
Present: Laurence, Gelinas, & Mills, JJ.
A motion to dismiss was heard by Patrick F. Brady, J.
Robert C. Thompson, Assistant District
Attorney (Jeanne L. olmes, Assistant District Attorney, with him) for the
Commonwealth.
Nona E. Walker, Committee for Public Counsel Services, for the defendant.
LAURENCE, J.
In this case we address an important unresolved
issue relating to the meaning of "release" as used in § 12(a) (see
note 1, infra) of the statute governing proceedings for civil commitment of
"sexually dangerous persons." G. L. c. 123A, §§ 1, 12-14, as
amended by
In McLeod, the court dealt with a defendant who had been convicted in 1998 and
1992 of "sexual offenses" (rape and indecent assault and battery of a
child and aggravated rape) as defined in the statute, G. L. c. 123A, § 1.
McLeod served the sentences imposed for those sexual crimes and was released
into the community. In 2000, he was convicted, placed on parole, and
reimprisoned (upon probation violation) for crimes (assault, assault and
battery, threatening to commit a crime, and drug possession) not falling within
c. 123A. As McLeod's date of ultimate release from prison on account of the
sentences imposed for those nonsexual crimes approached, the Commonwealth
petitioned for his civil commitment as a person who remained sexually
dangerous. McLeod moved to dismiss the petition on the ground that the statute
applied only to persons who were incarcerated for an enumerated sexual offense
at the time the petition was filed.
The court agreed that, since McLeod was not then serving a sentence for a
defined sexual offense, he was "not eligible for potential civil
commitment" under c. 123A. Commonwealth v. McLeod, supra at 292. The court
stressed that McLeod had "completed his sentences for [his sexual offense]
crimes" years before and held that the commitment statute could not have
been intended to be applicable to "any defendant serving a sentence for
any crime who had ever in the past committed an enumerated sexual offense, no
matter how temporally distant." McLeod, supra at 292. The court did not,
however, address the meaning of the word "release" as used in § 12(a)
of the statute and explicitly refused to extend its holding to the situation of
a defendant whose sentence for a statutorily enumerated sexual offense had expired
but who remained incarcerated on account of a sentence for a nonenumerated
offense that had been imposed either concurrently or consecutively. McLeod,
supra at 293 n.10. See note 5, infra.
That situation is now before us. The defendant, Paul F. Shedlock, Jr., was
indicted by a
The defendant was eventually returned to
In September, 1989, the defendant escaped and remained at large for 121 days.
He was recaptured in
On November 8, 2002, the Commonwealth filed a petition for the defendant's
civil commitment as a sexually dangerous person, pursuant to the provisions of
G. L. c. 123A, § 12.[2] After some procedural skirmishing, the defendant
responded with a motion to dismiss the petition. His argument was that the
petition had to have been brought prior to his "release" from his
sentence for rape and was untimely and not maintainable thereafter, on the
theory that G. L. c. 123A does not allow the commitment of an individual who,
though continuously incarcerated, is no longer serving the sentence imposed for
his sexual offense.
A Superior Court judge agreed with the defendant and denied the Commonwealth's
motion for his temporary commitment pursuant to G. L. c. 123A, § 12(e), pending
a probable cause hearing. Basing his decision on what he saw as "the
logic" of McLeod, the judge thought that because the defendant was not serving
a sentence for an enumerated sexual offense at the time of the petition's
filing, he could not be in the class of individuals eligible for civil
commitment as a sexually dangerous person. The judge acknowledged, however,
that the question was "not free from doubt" because of the McLeod
disclaimer. 437
The judge focused on the defendant's repeated and vicious sexual assaults, his
long and violent criminal record, his history of substance abuse, his refusal
to engage in a sex offender program while incarcerated, his high score on a
statistical measure of recidivism, his history of flight based on his lengthy
default on the Plymouth County charges, and his 1989 escape, and a report as to
the likelihood of his reoffending filed by the Commonwealth's expert. On the
basis of those facts, the judge concluded that he had "no doubt" that
the Commonwealth had made a "sufficient showing," § 12(e), for a
temporary commitment pending a probable cause hearing. Further, the judge
found, that "[w]ere [the defendant] a person eligible under
[c. 123A] [the judge] would grant the Commonwealth's motion for a temporary
commitment." In light of that conclusion, the judge ordered that the
defendant remain in custody while the Commonwealth filed an interlocutory
appeal to a single justice of this court, who in turn stayed the defendant's
release pending the Commonwealth's expedited interlocutory appeal.
The Commonwealth contends the judge's extension of "the logic" of
McLeod was contrary to the plain language, legislative intent, and rational
operation of the statute. In particular, the Commonwealth attacks the practical
consequence of the ruling for proceedings under G. L. c. 123A. It argues that
the judge erred in effectively construing the word "release" in §
12(a) as the defendant proposed, which would require the Commonwealth to file
its notice and petition for the civil commitment of a defendant such as
Shedlock at the expiration of that portion of the defendant's period of
incarceration specifically attributable to his conviction of a sexual offense,
rather than at the end of his continuous period of incarceration when he will
actually be released into the community. The Commonwealth points out that,
under that reading, the prisoner's release (as here) may be years after the
formal end of his sexual offense sentence and the filing of the Commonwealth's
§ 12(b) petition. The defendant asserts that such a requirement is precisely
what McLeod envisioned (a proposition difficult to reconcile with the
specificity with which the McLeod court refused to address whether its holding
applied to facts such as those presented here).[3] We agree with the
Commonwealth for several reasons.
McLeod itself furnishes the fundamental principle of our analysis.
"[S]tatutory language should be given effect consistent with its plain
meaning and in light of the aim of the Legislature unless to do so would
achieve an illogical result." McLeod, 437
Every dictionary definition of both the verb and the noun forms of
"release" states, as their primary meaning, the action of liberation
or setting free from confinement or restraint. See, e.g., Webster's Third New
International Dictionary 1917 (1993); the American Heritage Dictionary of the
English Language 1524 (3d ed. 1992); Black's Law Dictionary 1292 (7th ed.
1999). An inmate who reaches the date of the technical completion of his
sentence for a sexual offense cannot be deemed to have been
"released" as of that date, as that word is "understood in
accordance with its generally accepted plain meaning" and with approved
usage and common understanding, Commonwealth v. Boucher, 438 Mass. 274, 276,
279, 281 (2002), if he continues to be incarcerated for years thereafter on a
sentence for a nonenumerated offense imposed to follow immediately on the heels
of the prior sentence. See also G. L. c. 4, § 6, cl. Third ("In construing
statutes . . . [w]ords . . . shall be construed according to the common and
approved usage of the language").
The Legislature's expectation that the "courts [would] apply the plain and
ordinary meaning" of the language used in the civil commitment provisions
of G. L. c. 123A, Commonwealth v. Kennedy,
435 Mass. 527, 530 (2001), was manifested by the unmistakably explicit
statement of primary legislative purpose set forth in the preamble to St. 1999,
c. 74: "[I]ts purpose . . . is to protect forthwith the vulnerable members
of our communities from sexual offenders", i.e., "to protect the
public from sexually dangerous persons." Commonwealth v. Bruno, 432
It would appear evident beyond the need for demonstration that the public requires
no protection from potentially dangerous sexual predators so long as they
remain incarcerated, for whatever reason, after their sexual offense sentence
has come to an end. Nor is such protection needed at any time prior to their
actually being reintegrated into the community on the occasion of their
physical release from all restraint and confinement. As McLeod itself
pertinently observed: "The thrust of the statutory scheme is that
commitment petitions should be brought against persons . . . who are about to
be released into the community but who, because they are sexually dangerous,
are likely to commit another sexual offense, and, therefore, should not be
released" (emphasis added). 437 Mass. at 291.[4]
Were further reinforcement of the Legislature's intended meaning for the word
"release" in § 12(a) needed, it can be seen in the other recognized
purpose of St. 1999, c. 74: "to provide [sexually dangerous persons]
treatment, and rehabilitation." Commonwealth v. Bruno, 432
As demonstrated by the case of Shedlock himself, the important legislative goal
of treatment for the purpose of achieving rehabilitation and reentry into
society -- the potential success of which the entire statutory scheme presumes,
see Hill, petitioner, 422 Mass. 147, 154 (1996) -- would be rendered a nullity
by the defendant's construction of the statute. The Commonwealth would be
required futilely to commence commitment proceedings with respect to a
defendant who is impervious to meaningful rehabilitation while he continues
serving a lengthy sentence in prison where he is able to frustrate any such
efforts by refusing to undergo sex offender treatment.
Even if we were of the view that the word "release" as used in §
12(a) suffered from some imprecision or ambiguity requiring judicial
interpretation,[5] rather than being clear from its plain meaning read
in light of its explicit legislative intent and the workable result such a
reading yields, see Pyle v. School Comm. of S. Hadley, 423 Mass. 283, 286
(1996), we would still agree with the Commonwealth's position. The frustration
of the legislative objectives animating St. 1999, c. 74 -- public protection
and rehabilitative treatment -- that would result from construing "release"
as the defendant desires compels an interpretation that not only is reasonable
but also makes the operation of the statute meaningful, useful, and practical.
See
Judicial gloss on the 1999 amendments to c. 123A further demonstrates that the
meaning the defendant urges for the word "release" would hinder, if
not defeat, legislative intent. As earlier noted, adoption of the defendant's
position would have required the Commonwealth to commence the civil commitment
process against him by notice and petition at the end of his original rape
sentence, despite the fact that his escape and additional sentence kept him
imprisoned for several years thereafter. In Bruno, the
Given that statutory focus -- particularly in light of the pellucid intent of
the statutory scheme to authorize commitment petitions against sexually
dangerous persons who pose an actual danger to society because they "are
about to be released into the community," Commonwealth v. McLeod, 437
Mass. at 291 -- the defendant's position makes little sense. To require the
Commonwealth to have filed its petition against him prior to the end of his rape
sentence -- which, as it turned out, was over two years before his scheduled
release into the community -- would do nothing but create duplicative, wasteful
proceedings that could not have been intended by the Legislature. It is
unlikely to the point of implausibility that the Commonwealth could have then
filed such a petition, in good faith, ethically or in compliance with Bruno. It
would have had to aver that it had "sufficient facts to support" the
allegation that the defendant "is a sexually dangerous person," G. L.
c. 123A, § 12(b), based not only on his then "current mental
condition" but also on the dubious assertion -- whether express or implied
-- that he would continue into the future to have the requisite mental
condition, however long it took for him finally to complete serving his
consecutive sentences. Cf. Commonwealth v. Bruno, 432 Mass. at 504-506 (the
fact the defendant was adjudicated not to be a sexually dangerous person
several years earlier did not collaterally estop the Commonwealth from
subsequently bringing a new commitment petition just prior to his release from
prison, because "whether Bruno is currently a sexually dangerous person[]
is [a] quite different [issue] from whether he was sexually dangerous" at
that earlier time).
Had the Commonwealth been compelled and able to prove as of the end of his rape
sentence that the defendant then had the requisite "current mental
condition" to warrant committing him for treatment as a sexually dangerous
person (although he could not have been so committed while remaining in prison)
and then subsequently sought on that basis to commit him immediately upon his
final discharge from confinement several years later, its earlier effort would
have been fruitless. The defendant justifiably could challenge that subsequent
commitment not only on basic due process grounds, id. at 502-504, but also by
virtue of G. L. c. 123A, § 12(e) (person named in the petition may move court
for relief at any time prior to probable cause determination). The Commonwealth
would thereupon have the obligation of expending additional resources to
undertake a second petitioning effort before his December, 2002, release date
to justify the commitment on the basis of "current" facts, in effect
starting all over again. The Legislature could not have intended the
Commonwealth to bear the burden of pursuing multiple proceedings against a
defendant, particularly given that the word "petition" is stated in
the singular whenever mentioned in G. L. c. 123A, § 12.[6],[7]
In addition to generating wasteful and unnecessary proceedings, it is
foreseeable that the defendant's construction of "release" would
adversely affect prison discipline by encouraging sexual offenders to commit
new, nonsexual crimes while imprisoned. They could thereby reduce the risk that
they might ultimately be found sexually dangerous persons under G. L. c. 123A
(which would make them subject to institutionalization for an indeterminate
period up to life, G. L. c. 123A, § 14[d]) simply because their additional crimes
could extend their periods of incarceration until long after the termination of
the underlying sexual offense sentence. During that extension they could
decline sexual offender treatment while exhibiting no conduct indicating sexual
dangerousness because of their confined and strictly regulated situation, so
that at such future time as the Commonwealth would have to address its burden
of proof, it might well be much more difficult to satisfy.[8]
We thus conclude that, whether the meaning of G. L. c. 123, § 12(a), appears
clear on its face or is deemed to be ambiguous,[9] the notice and
petition authorized by G. L. c. 123A, § 12, are appropriately filed at the time
of the defendant's imminent release into the community, at the end of all of
the continuous sentences he is serving, and not at the end of that portion of
his ongoing incarceration technically attributable to his sexual offense. The
Commonwealth's § 12(b) petition with respect to Shedlock was therefore timely.
Accordingly, we hold that for purposes of G. L. c. 123A, §
12, the Commonwealth's November 8, 2002, petition for temporary commitment of
the defendant pursuant to G. L. c. 123A, § 12(e), was timely. In the
circumstances of this case, the release date that triggered G. L. c. 123A, §
12(a)-(e), was in December, 2002. Further, in view of the motion judge's
finding that the Commonwealth made a sufficient showing for temporary
commitment of the defendant pending a probable cause hearing, see supra at ,
the order of the Superior Court denying the Commonwealth's motion under G. L.
c. 123A, § 12(e), is reversed. The case is remanded to the Superior Court for
further proceedings consistent with this opinion. The defendant's temporary
commitment to the
So ordered.
FOOTNOTES:
[1] General Laws c. 123A, § 1, defines "sexual offenses"
for which a "sexually dangerous person" may be civilly committed
pursuant to §§ 12-14 after "release" from incarceration. See note 2,
infra.
[2] General Laws c.
123A, § 12, provides, in pertinent part:
"(a) Any agency with jurisdiction of a person who has been convicted of or
adjudicated as a delinquent juvenile or a youthful offender by reason of a
sexual offense as defined in section 1 or who has been charged with such
offense but has been found incompetent to stand trial shall notify in writing
the district attorney of the county where the offense occurred and the attorney
general six months prior to the release of such person, except that in the case
of a person who is returned to prison for no more than six months as a result
of a revocation of parole or who is committed for no more than six months, such
notice shall be given as soon as practicable following such person's admission
to prison. In such notice, the agency with jurisdiction shall also identify
those prisoners or youths who have a particularly high likelihood of meeting
the criteria for a sexually dangerous person.
"(b) When the district attorney or the attorney general determines that
the prisoner or youth in the custody of the department of youth services is
likely to be a sexually dangerous person as defined in section 1, the district
attorney or the attorney general at the request of the district attorney may
file a petition alleging that the prisoner or youth is a sexually dangerous
person and stating sufficient facts to support such allegation in the superior
court where the prisoner or youth is committed or in the superior court of the
county where the sexual offense occurred.
"(c) Upon the filing of a petition under this section, the court in which
the petition was filed shall determine whether probable cause exists to believe
that the person named in the petition is a sexually dangerous person. Such
person shall be provided with notice of, and an opportunity to appear in person
at, a hearing to contest probable cause.
"(d) . . . [Rights at the probable cause hearing]
"(e) If the person named in the petition is scheduled to be released
from jail, house of correction, prison or a facility of the department of youth
services at any time prior to the court's probable cause determination, the
court, upon a sufficient showing based on the evidence before the court at that
time, may temporarily commit such person to the treatment center pending
disposition of the petition. The person named in the petition may move the
court for relief from such temporary commitment at any time prior to the
probable cause determination." (Emphasis added.)
[3] The Commonwealth has argued that the application
of G. L. c. 123A in McLeod is distinguishable and not controlling not only
because of the court's explicit disclaimer, but also because the sentence
McLeod was serving when the c. 123A proceeding was initiated was for a crime
that occurred many years after his sexual offense and was entirely unconnected
to that offense and the sentence therefor. See McLeod, 437
[4] Cf. Commonwealth v. Sheridan, 51 Mass. App. Ct.
74, 76-77 (2001) (addressing the issue whether a from-and-after probationary
sentence began when the continuously confined defendant technically had
completed his prison sentences on his rape convictions or when he was
subsequently released from the treatment center to which he had been committed
as a sexually dangerous person while serving those sentences, this court held
that "[t]he purpose of a probationary sentence is 'rehabilitation of the
probationer and protection of the public.' . . . [T]he defendant['s being]
separated from society and in an institutionalized setting . . . eliminated any
need for the supervision of a probation officer. . . . The two goals of
probation -- rehabilitation under the supervision of a probation officer and
the protection of society -- are only brought into play when the offender is
released into the community" [emphasis added]).
[5] The defendant contends that ambiguity as to the
meaning of "release" has been created by the Supreme Judicial Court
itself, in its footnote disclaimer in Commonwealth v. McLeod, 437 Mass. at 293
n.10: "We do not decide whether a defendant may be committed . . . after
release from a sentence for a . . . sexual offense but before release from a
sentence for a nonenumerated offense . . . imposed . . . consecutively."
It is obvious from the context, however, that the court was not purporting to
rule upon the statutory meaning of "release" in § 12(a), which was
never brought to its attention, and, in our view, used the word in its footnote
in an imprecise fashion (as is not infrequent in dicta) that furnishes no
precedent. See Vigeant v. Postal Tel. Cable Co., 260 Mass. 335, 343-344 (1927);
McEvoy Travel Bureau, Inc. v. Norton Co., 408 Mass. 704, 719 n.11 (1990);
Sheriff of Suffolk County v. Pires, 438 Mass. 96, 101 n.5 (2002); Commonwealth
v. Shea, 46 Mass. App. Ct. 196, 198 n.3 (1999).
[6] Compare Bell v. Treasurer of Cambridge, 310 Mass.
484, 488-489 (1941) (by conferring temporary mayoral duties and salary on
president of city council pursuant to statute, in order to replace mayor who
had been convicted of bribery and stipulated in court he would not exercise his
duties pending appeal but nonetheless brought litigation to recover his salary
as an incident of his office, "the Legislature could hardly have intended
to saddle a double liability upon the city"); Commonwealth v. Williams,
427 Mass. 59, 61-63 (1998) (juvenile transfer hearing legislation cannot,
consistently with common sense and sound reason, be construed to require a
separate and additional transfer hearing for a lesser included offense to which
the defendant ultimately pleaded guilty as well as for the serious felony
actually charged for which the statute expressly required such a hearing); Hopkins
v. Liberty Mutual Ins. Co., 434 Mass. 556, 561-563 (2001) (defendant's proposed
interpretation of G. L. c. 176D, § 3[9][f], prohibiting unfair
"settlements of claims" by insurers, to mean that a single ongoing
act cannot constitute an actionable violation, was rejected because it would
inevitably produce unnecessary, complex and contentious lawsuits). Shedlock's
view of the statute would produce even greater multiplicity of proceedings, for
he asserts that had the petition been brought at the termination of his sexual
offense sentence, he could have taken advantage of G. L. c. 123A, § 9. That
provision gives a person determined to be sexually dangerous the right to file
a petition for discharge, with jury trial demand, every twelve months. Such a filing
puts the Commonwealth to the burden of proving beyond a reasonable doubt that
the petitioner currently remains a sexually dangerous person. Wyatt,
petitioner, 428
[7] Shedlock also suggests an "alternative"
interpretation of the statute that would require the Commonwealth to file its
petition at the end of the sexual offense sentence but postpone all proceedings
on that petition, including the probable cause determination, until the end of
his consecutive sentence. In addition to entailing similar duplicative effort
on the part of the Commonwealth, this interpretation violates the clear
language of G. L. c. 123A, § 12(b) & (c), as well as the requirement that
the petitioner allege and prove the defendant's "current mental
condition."
[8] The Commonwealth's potential difficulty is
reflected in Hill, petitioner, 422 Mass. at 157, where the court reversed the
dismissal of the Commonwealth's sexually dangerous person petition because the
trial judge had relied on the Commonwealth's failure to produce "recent
evidence" of "contemporaneous" or "recent conduct"
indicating sexual dangerousness. The court observed, "Examples of recent
conduct showing sexual dangerousness may often be lacking where the
individual's dangerous disposition is of a sort that there will be no occasion
for that disposition to manifest itself in a secure environment. . . . [I]t
cannot be the case that an individual's refusal to submit to an examination or
to participate in treatment, in which his current dispositions might manifest
themselves, will more or less automatically guarantee himself a favorable
determination [in the sexually dangerous person hearings]." The court noted,
"That the subject refused to cooperate, however, does not lighten the
Commonwealth's burden;" it was up to the trier of fact to weigh such
evidence.
[9] The motion judge and
the defendant both relied upon the so-called "rule of lenity" to
support their position that the Commonwealth should have filed its notice and
petition for civil commitment prior to the end of the rape sentence, when the
defendant was supposedly "released" from his sex offense sentence,
and has lost its power to do so by waiting to file until the defendant
completed serving the remainder of his sentence for a nonsexual offense. Their
reliance is unfounded in this case. That rule applies to criminal statutes
defining criminal conduct. Commonwealth v. George, 430
§ 12(a) is unrelated to the definition of any criminal conduct and
"only concerns matters of procedure which do not
involve . . . substantive or fundamental rights."
Charles C. v. Commonwealth, 415