Commonwealth v. Goodwin

933 N.E.2d 925, 458 Mass. 11, 2010 Mass. LEXIS 643
CourtMassachusetts Supreme Judicial Court
DecidedSeptember 17, 2010
DocketSJC-10647
StatusPublished
Cited by53 cases

This text of 933 N.E.2d 925 (Commonwealth v. Goodwin) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Goodwin, 933 N.E.2d 925, 458 Mass. 11, 2010 Mass. LEXIS 643 (Mass. 2010).

Opinions

Gants, J.

Acting on a petition for relief brought by the Commonwealth under G. L. c. 211, § 3, a single justice of this court reserved and reported the question “whether a judge has the authority to impose a global positioning system (GPS) monitoring device as an additional condition of probation in a probation [12]*12modification proceeding” where there was no finding of a violation of a condition of probation. We conclude that, unless a judge finds a violation of a condition of probation, a judge does not have the discretion to impose GPS monitoring as an additional condition of probation where there is no material change in the defendant’s circumstances and where GPS monitoring, paired with geographic exclusions, is so punitive as to increase significantly the severity of the original probationary terms. Therefore, the judge was correct to deny the Commonwealth’s request to modify the conditions of the defendant’s probation to add GPS monitoring and geographic exclusion zones.

Background. On September 13, 1990, the defendant pleaded guilty in the Superior Court to three indictments charging rape of a child by force and one indictment charging kidnapping. On September 28, 1990, the judge sentenced the defendant to two concurrent State prison sentences of from ten to fifteen years on two of the rape convictions and a concurrent sentence of from nine to ten years on the kidnapping conviction. On the third rape conviction, the defendant received a sentence of from thirty to forty years in State prison, suspended for ten years, to be served from and after the committed sentences, with a special condition of probation that the defendant undergo psychiatric treatment. The defendant appealed from his sentence as to the third rape conviction and, after transferring the case from the Appeals Court, we concluded that the sentence was properly imposed. See Commonwealth v. Goodwin, 414 Mass. 88 (1993).

In our review, we summarized the facts of the defendant’s case as outlined by the prosecutor before the sentencing judge:

“The defendant had taken the victim, a seven year old boy, away from a social function the victim was attending with his parents by threatening to kill the victim if he refused to go along. The defendant first took the victim to an area underneath a bridge where an act of fellatio occurred. The defendant then brought the victim to the cellar of his (the defendant’s) parents’ house where other acts of fellatio were performed, and the defendant attempted to sodomize the victim. The victim was confined in the cellar overnight. The next morning the defendant committed an additional act of fellatio, after which the defendant [13]*13surreptitiously removed the victim from the house in a large cardboard box and sent him home in a taxicab.”

Id. at 89.

Before the defendant’s release from State prison in December, 2003, the Commonwealth filed a petition for his civil commitment as a “sexually dangerous person,” G. L. c. 123A, and he remained in custody until he was found sexually dangerous on July 7, 2005, and was civilly committed. On June 9, 2009, after a jury found him no longer sexually dangerous under G. L. c. 123A, § 9, he was released from the treatment center and began serving the probationary term on his third rape conviction.

On June 18, 2009, the probation department sought modification of the defendant’s probation conditions. Over the defendant’s objection, the judge, who was not the original sentencing judge,1 added probation conditions that the defendant have no contact with children under sixteen years of age and stay away from the victim.2

At a hearing on July 8, 2009, before another judge, the probation department requested that the defendant’s probation be further modified to require him (1) to remain in the care of the Department of Mental Health (DMH) and comply with its treatment plan, including taking all prescribed medications and participating in sex offender treatment; and (2) to wear a GPS monitoring device and not enter certain exclusion zones that would include all parks, playgrounds, schools, and libraries. At a subsequent hearing on August 19, one day after the issuance of our decision in Commonwealth v. Cory, 454 Mass. 559, 572 (2009) (Cory), where we held that GPS monitoring is “punitive in effect” because of its “substantial burden on liberty,” the judge modified the original probationary condition that the defendant receive psychiatric treatment to include compliance with all programs deemed appropriate for him by DMH, including any recommended sex offender treatment.3 The judge, [14]*14however, declined the probation department’s request that the defendant wear a GPS device and be prohibited from entering the specified exclusion zones. The judge concluded for two reasons that she had “no legal authority” to add these conditions. First, she found “there is no change in circumstances . . . which would support the addition of GPS as a condition.” Second, because GPS monitoring was declared to be “punitive in effect,” id., she indicated that, even if there were such a change in circumstances, it would “amount to ex post facto punishment” to add this condition where the defendant had not violated the terms of his probation.

The Commonwealth moved for reconsideration of the judge’s refusal to add probation conditions concerning the GPS device and geographic exclusion zones. On October 9, 2009, the judge denied the motion in a written memorandum and order. The Commonwealth did not file a notice of appeal, but on November 17, 2009, it sought relief, under G. L. c. 211, § 3, from the judge’s memorandum and order. The case having been reserved and reported by the single justice, we first address the defendant’s contention that it is not properly before us, and then proceed to the merits.

Discussion. 1. Appropriateness of relief under G. L. c. 211, § 3. The defendant argues that relief under G. L. c. 211, § 3, is inappropriate because the Commonwealth could have, but did not, file a direct appeal in the Appeals Court of the judge’s denial of its motion to add GPS monitoring and exclusion zones as a condition of probation, or of the judge’s denial of its motion for reconsideration. Our discretionary power of review under G. L. c. 211, § 3, is extraordinary and may not be sought “merely as a substitute for normal appellate review.” McMenimen v. Passatempo, 452 Mass. 178, 184 (2008), quoting McGuinness v. Commonwealth, 420 Mass. 495, 497 (1995). A party seeking review under G. L. c. 211, § 3, must demonstrate both a substantial claim of violation of its substantive rights and an error that cannot be remedied under the ordinary review process. McMenimen v. Passatempo, supra at 185. Here, the Commonwealth presents a substantial claim that the judge erred in concluding that she had no legal authority to add GPS monitoring and exclusion zones as a condition of probation where there was no violation of probation. We need not decide whether this [15]*15alleged error could have been remedied under the ordinary review process because, “[w]here the single justice has, in [her] discretion, reserved and reported the case to the full court, we grant full appellate review of the issues reported.” Martin v. Commonwealth, 451 Mass. 113, 119 (2008).4

2. Modification of the defendant’s probation conditions.

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Cite This Page — Counsel Stack

Bluebook (online)
933 N.E.2d 925, 458 Mass. 11, 2010 Mass. LEXIS 643, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-goodwin-mass-2010.