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SJC-12495

                  COMMONWEALTH   vs.   RICHARD GARDNER.



        Plymouth.        May 7, 2018. - September 14, 2018.

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


Sex Offender. Due Process of Law, Sex offender. Jurisdiction,
     Sex offender. Imprisonment, Transfer of
     prisoner. Statute, Construction. Words, "Prisoner."



     Civil action commenced in the Superior Court Department on
June 14, 2017.

     A motion to dismiss was heard by Mark C. Gildea, J.

     The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.


     Gail M. McKenna, Assistant District Attorney (Shanan L.
Buckingham, Assistant District Attorney, also present) for the
Commonwealth.
     Joseph M. Kenneally for the defendant.
     David B. Hirsch, for Committee for Public Counsel Services,
amicus curiae, submitted a brief.


     CYPHER, J.    We are called upon once again to determine the

scope of persons who the Commonwealth may lawfully seek to

commit as sexually dangerous persons under G. L. c. 123A.
                                                                     2


General Laws c. 123A, § 12 (b), authorizes the Commonwealth to

file a petition to civilly commit a "prisoner or youth" deemed

likely to be a "sexually dangerous person" (SDP), as that phrase

is defined in G. L. c. 123A, § 1.   "Prisoner" refers, in

pertinent part, to a person who has previously been convicted of

an enumerated sexual offense in § 1, and is presently in custody

as a result of a criminal conviction.   See Commonwealth

v. Libby, 472 Mass. 93, 95-96 (2015).   We consider in this case

whether "prisoner" includes an individual in the custody of, and

serving a sentence in, another State.   Applying the required

narrow construction of the SDP statute, our answer is no.    There

can be no doubt that the Legislature intended SDP commitment to

extend only to those prisoners who are in Massachusetts custody,

serving a Massachusetts sentence, at the time the Commonwealth

files a commitment petition under § 12 (b).

     When the Commonwealth filed the petition in this case, the

defendant was serving a Rhode Island sentence, albeit in a

Massachusetts prison, pursuant to his transfer under the New

England Interstate Corrections Compact (NEICC).   The NEICC is an

agreement among the six New England States authorizing the

transfer of inmates between correctional facilities in those

States, in order to provide "for the confinement, treatment and

rehabilitation of offenders with the most economical use of

human and material resources."   Under the NEICC, the defendant
                                                                      3


remains under the jurisdiction of Rhode Island, not

Massachusetts, following his transfer to a Massachusetts prison

–- meaning the transfer conferred upon the Commonwealth no

greater authority to commit him than it possessed while the

defendant was in Rhode Island, which is none.    We affirm the

motion judge's dismissal of the Commonwealth's petition.

     Facts.   The defendant, Richard Gardner, was convicted of

several sexual assaults committed against four children in 1987

and 1988.   The 1987 offense occurred when the defendant was

twenty-one years old; he was charged with kidnapping and rape of

a child in Massachusetts.   While released on bail, in June and

July of 1988, the defendant sexually assaulted three additional

children in Massachusetts and Rhode Island.    He was apprehended

in Rhode Island, and in May, 1989, a Rhode Island jury found him

guilty of sexual offenses and other crimes.    He was ultimately

sentenced in Rhode Island to fifty years in prison, with thirty

years to serve and the balance suspended. 1   Separately, in

August, 1989, while in Rhode Island custody, the defendant

pleaded guilty to the Massachusetts charges of kidnapping and

child rape, stemming from the 1987 incident; for this he

received a sentence of from ten to fifteen years in prison.      In


     1 The defendant was originally sentenced to 190 years in
prison, but in 1992 his Rhode Island convictions were reversed;
he pleaded guilty to the same charges in 1993 and received the
revised fifty-year sentence.
                                                                    4


May, 1991, the defendant also pleaded guilty to Massachusetts

charges for the sexual offenses he had committed in July, 1988,

and received another sentence of from seven and one-half to ten

years. 2

     In April, 2004, Rhode Island released the defendant to the

custody of the Massachusetts Department of Correction to serve

the two Massachusetts sentences.   Near the end of the

defendant's sentences, the Plymouth County district attorney

(district attorney) was notified of the defendant's impending

release, but for reasons that are unclear, the district attorney

failed at that time to petition to have the defendant civilly

committed as a sexually dangerous person.   In October, 2016, the

defendant was released from Massachusetts custody to begin his

probationary sentence in Rhode Island.

     Eleven days after his release, the defendant was arrested

in Quincy for violating a local bylaw that prohibits sex

offenders from entering the public library. 3   He was brought back

to Rhode Island where he was found in violation of his probation

and sentenced to one year in prison, with the balance of his

     2 While in Rhode Island custody, the defendant sued the
Massachusetts commissioner of correction, in an unsuccessful
attempt to receive credit against his Massachusetts sentences
for the time he had served in Rhode Island. See Gardner v.
Commissioner of Correction, 56 Mass. App. Ct. 31, 33-34 (2002).

     3 Because the defendant is a Massachusetts resident, his
Rhode Island probation was transferred to the Superior Court in
Norfolk County for supervision.
                                                                   5


probation to resume upon his release.   In March, 2017, the

district attorney contacted an administrator with the

Massachusetts Department of Correction to inform him of the

district attorney's ongoing efforts to "get [the defendant] back

to" Massachusetts to secure "access to [the defendant] to file

the [SDP] petition."   With four weeks left to serve on his one-

year Rhode Island sentence, the defendant was involuntarily

transferred to Massachusetts, pursuant to the NEICC, to serve

the remainder of his sentence.   The day after the defendant's

transfer from Rhode Island to Massachusetts, the Commonwealth

filed the underlying petition in the Superior Court seeking his

civil commitment as an SDP.

     With the defendant's sentence set to expire on July 13,

2017, the Superior Court judge temporarily committed the

defendant pending a probable cause determination.   Later that

month, the judge found probable cause to believe that the

defendant was sexually dangerous, and continued his temporary

commitment pending a psychological examination and trial.     In

August, 2017, the defendant moved to dismiss the petition,

arguing that (1) the district attorney lacked the authority to

file the petition because the defendant was not serving a

Massachusetts sentence at the time it was filed, and (2) the

defendant's transfer was invalid because it violated provisions

of the NEICC.   The judge granted the defendant's motion,
                                                                     6


agreeing that because the defendant was not serving a

Massachusetts sentence, the district attorney lacked the

authority to petition for the defendant's commitment.    The judge

stayed the defendant's release pending the Commonwealth's

appeal, which entered in the Appeals Court in January, 2018, and

was transferred, sua sponte, to this court in March.    The

defendant remains civilly committed in the Massachusetts

Treatment Center, where he has been since the expiration of his

Rhode Island sentence in July, 2017.

     Discussion. 4   General Laws c. 123A, § 12 (b), provides:

     "When the district attorney or the attorney general
     determines that the prisoner or youth . . . is likely to be
     a sexually dangerous person as defined in [§ 1], the
     [prosecutor] . . . may file a petition alleging that the
     prisoner . . . is a sexually dangerous person . . . ." 5

     "Prisoner or youth" are not defined terms in G. L. c. 123A.

We have recognized, however, that those terms (as they are

     4 We acknowledge the brief submitted by amicus curiae, the
Committee for Public Counsel Services.

     5 "Sexually dangerous person" is defined, in pertinent part,
as "any person who has been [] convicted of . . . a sexual
offense" enumerated in § 1, "and who suffers from a mental
abnormality or personality disorder which makes the person
likely to engage in sexual offenses if not confined to a secure
facility." G. L. c. 123A, § 1.

     "Sexual offense" is defined to include a host of enumerated
sexual offenses under Massachusetts law, "or a like violation of
the laws of another state, the United States or a military,
territorial, or Indian tribal authority; and any other offense,
the facts of which, under the totality of the circumstances,
manifest a sexual motivation or pattern of conduct or series of
acts of sexually-motivated offenses." Id.
                                                                    7


employed in § 12 [b]) are "plainly a shorthand reference" to

"the three categories of persons for whom notice must be given

of their impending release" under § 12 (a), "and are limited in

scope to those three categories."    Libby, 472 Mass. at 95, 100.

See id. at 95 ("It is plain from the statute that the relevant

district attorney or the Attorney General may file an SDP

petition only against a person who is included within the three

categories of persons for whom notice must be given").     Under

§ 12 (a), an "agency with jurisdiction" must notify "the

district attorney of the county where the offense occurred and

the attorney general six months prior to the release" of three

categories of persons.   These are "person[s] who [have] been

convicted of a sexual offense," and are presently "in custody

because of [1] a criminal conviction, [2] an adjudication as a

delinquent juvenile or youthful offender, or [3] a judicial

finding that the person is incompetent to stand

trial."   Libby, supra at 93.   See G. L. c. 123A, § 12 (a). 6


     6 Section 12 (a) describes the three categories of persons
for whom notice must be given as "(1) 'a person who has ever
been convicted of or adjudicated as a delinquent juvenile or
youthful offender by reason of a sexual offense as defined in
[§ 1], regardless of the reason for the current incarceration,
confinement or commitment'; (2) a person charged with such
sexual offense who 'has been found incompetent to stand trial,'
and (3) a person charged with 'any offense,' who 'is currently
incompetent to stand trial,' and who 'has previously been
convicted of or adjudicated as a delinquent juvenile or youthful
offender by reason of a sexual offense.'" Commonwealth v.
Libby, 472 Mass. 93, 95 (2015), quoting G. L. c. 123A, § 12 (a).
                                                                     8


     The Commonwealth contended that the defendant falls under

the first category, as he was previously convicted of an

enumerated sexual offense, and is currently in custody as a

result of a conviction for violating his Rhode Island probation.

In the Commonwealth's view, the fact that the defendant is not

currently serving a Massachusetts sentence makes no difference

concerning its authority to petition for his commitment in

Massachusetts. 7   Its position was that G. L. c. 123A confers the

authority to file a petition against a person serving an out-of-

State sentence anywhere in the country, so long as he or she



As mentioned, this court clarified in Libby that § 12 (a) also
defines "the three categories of persons . . . who are subject
to the filing of an SDP petition." Id. at 100. Narrowly
construing the statute, the court held that an SDP petition
under § 12 (b) may be filed "against a person who has been
convicted of a sexual offense only where the person is in
custody because of a criminal conviction, an adjudication as a
delinquent juvenile or youthful offender, or a judicial finding
that the person is incompetent to stand trial." Id. at 93.
Necessarily, this also means that these are the three categories
of persons for whom notice must be given under § 12 (a) -- and
hence, we articulate these three categories using the language
from Libby, rather than the literal language of § 12 (a). It is
also important to note that the court's interpretation in Libby
was based in part on its explanation that the phrase in
§ 12 (a), "regardless of the reason for the current
incarceration, confinement or commitment," was intended only to
"allow an SDP petition to be filed against a person convicted of
a sexual offense who was serving a sentence for a nonsexual
offense, or who was found incompetent to stand trial on a
nonsexual offense." Libby at 97.

     7 The Commonwealth conceded in the Superior Court that the
defendant's transfer to Massachusetts under the NEICC did not
transform his Rhode Island probation sentence into a
Massachusetts sentence.
                                                                      9


previously committed a sex offense in Massachusetts.   The

defendant moved to dismiss, arguing in part that the

Commonwealth lacks jurisdiction because he was not serving a

Massachusetts sentence at the time the Commonwealth filed the

petition.   The Superior Court judge agreed, finding an absence

of legislative intent that the SDP commitment scheme should

extend to prisoners of other States.    He also noted that "[t]he

Commonwealth's interpretation would drastically expand the scope

of the SDP statute, implicating due process concerns."

     Because G. L. c. 123A is a statute in derogation of

liberty, we must interpret its terms narrowly.   Commonwealth

v. Gillis, 448 Mass. 354, 357 (2007).   This "more stringent

analysis . . . not only helps avoid possible constitutional due

process problems . . . but also helps ensure that individuals

are not deprived of liberty without a clear statement of

legislative intent to do so."   Id., citing Commonwealth

v. Nieves, 446 Mass. 583, 597-598 (2006).   Accordingly, our

courts have consistently declined to broaden the class of

persons subject to SDP commitment in the absence of such a clear

statement of legislative intent.   Gillis, supra at 358,

citing Commonwealth v. McLeod, 437 Mass. 286, 294 (2002).      See,

e.g., Gillis, supra at 354-355 (individuals not serving any

criminal sentence and have no pending charges, but who are in

State custody as result of civil commitment due to mental
                                                                   10


illness, not subject to SDP proceedings); Commonwealth v. Allen,

73 Mass. App. Ct. 862, 864 (2009) (individual who had completed

criminal sentence, yet remained in custody solely due to

clerical error, not "prisoner" subject to commitment); Coffin

v. Superintendent, Mass. Treatment Ctr., 458 Mass. 186, 187

(2010) (Commonwealth may not petition for commitment of

individual incarcerated for violating terms of sentence imposed

under unconstitutional statute); Libby, 472 Mass. at 100

(persons previously convicted of sexual offense who are

currently in custody awaiting trial not subject to SDP

commitment).

     In support of its position that a § 12 (b) petition may be

filed against an out-of-State prisoner, the Commonwealth cites

the plain language of the statute, which permits a commitment

petition to be filed against a "prisoner," without any

qualifier.   The Legislature never restricted § 12 (b) solely to

"Massachusetts prisoners," the Commonwealth argues, and by

imposing such a limitation the motion judge effectively rewrote

the statute, by inserting the word "Massachusetts."   The

Commonwealth suggests that the all-purpose definition of

"prisoner" is contained in G. L. c. 125, § 1 (m), which defines

that term as "a committed offender and such other person as is

placed in custody in a correctional facility in accordance with
                                                                    11


law." 8   Gardner fits these definitions, the Commonwealth posits,

as he was found in violation of his Rhode Island probation,

Rhode Island sentenced him to one year in prison, and he is

presently in custody serving that sentence in a correctional

facility.

      Our cases make clear, however, that "[i]n determining

eligibility for civil commitment, the fact of custody alone is

not determinative. . . . Nor is it enough that an individual is

serving a sentence."    Coffin, 458 Mass. at 189, citing Allen, 73

Mass. App. Ct. at 864.    Likewise, this court rejected the

Commonwealth's argument that the definition of "prisoner" in

G. L. c. 125, § 1 (m), applies in the SDP context over a decade

ago, in Gillis, 448 Mass. at 358-359.    See Allen, 73 Mass. App.

Ct. at 864, citing Gillis, supra ("the Supreme Judicial Court

has held that the definition of 'prisoner' contained in G. L.

c. 125, § 1 (m), . . . is not to be used for G. L. c. 123A, § 12

[b]").    There we observed that G. L. c. 125, § 1, states that

its definitions shall apply "unless the context otherwise

requires," and we held that "the context of the SDP statute" --

a statute in derogation of liberty -- "requires a construction

      8"Committed offender" is defined as "a person convicted of
a crime and committed, under sentence, to a correctional
facility." G. L. c. 125, § 1 (c). "Correctional facility"
refers to "any building . . . used for the custody, control and
rehabilitation of committed offenders and of such other persons
as may be placed in custody therein in accordance with law."
G. L. c. 123A, § 1 (d).
                                                                    12


of 'prisoner' that is no broader than its ordinary

usage."   Gillis, supra at 359.   Accordingly, the court adopted,

for purposes of deciding that case, the more narrow, dictionary

definition of "prisoner," which is "an individual who is either

serving a criminal sentence or awaiting trial."    Id. at 358-259

citing 12 Oxford English Dictionary 513 (2d ed. 1989). 9

     Examining § 12 (b) in its proper context, and as part of

G. L. c. 123A as a whole, see Commonwealth v. Poissant, 443

Mass. 558, 563 (2005) (we interpret SDP statute "as a whole to

produce an internal consistency" [citation omitted]), we discern

no legislative intent to commit out-of-State prisoners.    To the

contrary, the several provisions of G. L. c. 123A that make up

the commitment procedure evince a legislative recognition that

the Commonwealth may only commit those within its own custody.

Under § 12 (a), which informs our understanding of "prisoner or

youth" in § 12 (b), see Libby, 472 Mass. at 95, and which

represents the first step in the commitment process, see Nieves,

446 Mass. at 586, an "agency with jurisdiction" over the person

     9 Subsequently, in Libby, 472 Mass. at 99-100, we clarified
that our adoption of the dictionary definition of "prisoner" was
for purposes of deciding the issue in Commonwealth v. Gillis,
448 Mass. 354, 358-359 (2007), and that persons in custody
"awaiting trial" are not in fact subject to commitment under
G. L. c. 123A. "[I]t would be unreasonable to strip the words
'prisoner or youth' from their context in § 12 (b), apply their
dictionary definitions, and conclude that the Legislature
intended that a district attorney may file an SDP petition
against any prisoner or youth, as those words are commonly
used." Libby, supra at 100.
                                                                    13


named in the petition "shall notify in writing" the relevant

district attorney and the Attorney General six months prior to

the prisoner's release, and "shall also identify those prisoners

. . . who have a particularly high likelihood of meeting the

criteria for a sexually dangerous person."    See Commonwealth

v. Kennedy, 435 Mass. 527, 530 (2001) ("The word 'shall' in this

context, where substantive rights are involved, indicates that

the action is mandatory.    This imperative is at its strongest in

such cases").    "Agency with jurisdiction" is defined as "the

agency with the authority to direct the release of a person

presently incarcerated, confined, or committed."    G. L. c. 123A,

§ 1.

       Under the Commonwealth's interpretation, in the case of an

out-of-State prisoner, § 12 (a) would constitute a directive

from Massachusetts to an agency of another State (for that State

would possess "the authority to direct the release of [the]

[prisoner]," § 1), to undertake such tasks as an analysis of

Massachusetts law.    We decline to interpret G. L. c. 123A in

this manner, because legally and practically, the Legislature is

powerless to impose such obligations on another State.    See,

e.g., New York Life Ins. Co. v. Head, 234 U.S. 149, 161 (1914)

("it would be impossible to permit the statutes of [one State]

to operate beyond the jurisdiction of that State . . . without

throwing down the constitutional barriers by which all the
                                                                   14


States are restricted within the orbits of their lawful

authority and upon the preservation of which the Government

under the Constitution depends").

     The Commonwealth's argument fares no better even if it took

the more narrow position that although SDP petitions generally

cannot be filed against out-of-State prisoners, the defendant is

in fact a Massachusetts prisoner due to his transfer to a

Massachusetts correctional institution under the NEICC. 10   The

NEICC states that "[i]nmates confined in an institution pursuant

to the terms of this compact shall at all times be subject to

the jurisdiction of the sending state and may at any time be

removed therefrom for transfer to a prison or other institution

within the sending state . . . ."   This provision is

incorporated into the Federal and Interstate Compact policies

and procedures of the Department of Correction.   See 103 DOC

419.09 (2017) ("[i]nmates confined in an institution pursuant to

the provisions of the [NEICC] shall be subject to the

jurisdiction of the sending state").   Even in these

circumstances, then, the "agency with jurisdiction" over the


     10Although the Commonwealth's position in the Superior
Court was that the defendant's transfer to Massachusetts under
NEICC was irrelevant to its authority to petition for his
commitment here, at oral argument before this court, the
Commonwealth seemed to agree that had the defendant remained in
Rhode Island and finished serving his sentence there, the
Commonwealth would be powerless to initiate commitment
proceedings against him.
                                                                    15


defendant remained a Rhode Island agency, not the Massachusetts

Department of Correction.   Likewise, the purpose of the six-

month notice requirement in § 12 (a) is to ensure "that the

Commonwealth will be in a position to complete most, if not all,

of the G. L. c. 123A proceedings before the inmate's

discharge."   Kennedy, 435 Mass. at 530-531.    This cannot

reasonably apply to prisoners such as the defendant who are

transferred under the NEICC, because the agreement states that

they can be removed from the Commonwealth "at any time."      We

applied the same reasoning in Libby to reject the Commonwealth's

argument that a § 12 (b) petition may be filed against a person

held in custody before trial solely due to an inability to post

bail.   See Libby, supra at 99 ("Such a notice requirement

reasonably could not be applied to a person who is in custody

only because of an inability to post bail, who could obtain

immediate release upon posting bail. . . .     If the Legislature

had contemplated that an SDP petition could be filed after a

person's arrest while that person was in custody awaiting a bail

determination or seeking the funds to post bail, it would have

recognized this possibility in its notice provision").

     That the Legislature intended SDP commitment to extend only

to those "prisoner[s] or youth[s]" within Massachusetts custody

is further demonstrated by the other procedural components of G.

L. c. 123A.   After notice under § 12 (a), and the filing of the
                                                                  16


§ 12 (b) petition, the court holds a hearing under § 12 (c) to

determine whether there is probable cause to believe that the

person named in the petition is sexually dangerous.   Here the

Legislature specified that the prisoner "shall be provided . . .

an opportunity to appear in person" at the hearing, which would

generally be impossible if he or she were in the custody of

another State.

     Likewise, G. L. c. 123A, §§ 12 (e), 13 (a), and 14 (a),

authorize the temporary commitment of the person named in the

petition for the course of commitment proceedings; in

particular, § 13 (a) directs that the individual "shall" be held

for the purposes of psychological examination and trial.   This

provision assumes that the Commonwealth has access to the person

named in the petition, which, in the case of an out-of-State

prisoner, would be possible only through the cooperation of

another State sending its prisoner to Massachusetts, before the

prisoner has completed his or her sentence in that State, for

indefinite commitment here.   It makes no sense that the

Legislature would employ the word "shall" in this context, to

impose several procedural requirements that in reality could

only happen for out-of-State prisoners through the voluntary

(and perhaps unlikely) act of another sovereign.   The far more

sensible interpretation, and the one that gives greatest effect

to the terms of G. L. c. 123A, is that the Legislature intended
                                                                   17


SDP commitment to extend only to those "prisoner[s] or youth[s]"

already in the Commonwealth's custody, serving a sentence here,

when the § 12 (b) petition is filed.   See Chin v. Merriot, 470

Mass. 527, 537 (2015) ("we give effect to all words of a

statute, assuming none to be superfluous" [quotations and

citation omitted]).

     We note finally that this limitation is also necessary from

a jurisdictional standpoint.   If the Commonwealth is to deprive

an individual of his or her liberty "for an indeterminate period

of a minimum of one day and a maximum of such person's natural

life," as the SDP statute provides, see G. L. c. 123A, § 14 (d),

there must be some jurisdictional basis -– a nexus to

Massachusetts -– for that act.   See, e.g., J. McIntyre Mach.,

Ltd. v. Nicastro, 564 U.S. 873, 880 (2011) ("As a general rule"

under due process clause, "neither statute nor judicial decree

may bind strangers to the State").   In the Superior Court, the

Commonwealth argued that this nexus is established by a

requirement that a prisoner has previously committed a sexual

offense in Massachusetts.   As the Superior Court judge

explained, "the Commonwealth's position is that Chapter 123A

confers the authority to file a petition against a prisoner

serving an out of state sentence anywhere in the country, as

long as he committed a sex offense in the Commonwealth at some

point in the past".   Although on the particular facts of this
                                                                   18


case, the defendant committed several sexual offenses in

Massachusetts, that is not a prerequisite to his eligibility for

commitment under the scheme enacted by the Legislature.     In

defining "sexual offense" -- the principal predicate for

consideration as an SDP -- the Legislature included not only

Massachusetts offenses, but also "like violation[s] of the laws

of another state, the United States, or a military, territorial

or Indian tribal authority."    G. L. c. 123A, § 1.   Were we to

agree with the Commonwealth that G. L. c. 123A permits the

commitment of out-of-State prisoners, in addition to those who

have previously committed solely out-of-State sexual offenses,

as the Legislature has already provided, the result would be

that § 12 (b) petitions could be filed against individuals with

no connection to Massachusetts whatsoever.    That cannot be the

case if G. L. c. 123A is to comport with due process.

See Commonwealth v. Lamb, 365 Mass. 265, 269 (1974) ("We must

construe [G. L. c. 123A], if fairly possible, so as to avoid not

only the conclusion that it is unconstitutional but also grave

doubts upon that score" [quotations and citation omitted]).

     Conclusion.     We affirm the Superior Court judge's dismissal

of the petition, and remand the case for proceedings consistent

with this opinion.

                                           So ordered.
