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Goe v. Commissioner of Probation

Supreme Judicial Court of Massachusetts, Suffolk

March 14, 2016

George Goe [1]
Commissioner of Probation & another. [2]

         Argued November 2, 2015.

         Amended April 1, 2016.


Page 816

          Civil action commenced in the Supreme Judicial Court for the county of Suffolk on January 29, 2015.

         The case was reported by Cordy, J.

          Beth L. Eisenberg, Committee for Public Counsel Services ( Lily Lockhart, Committee for Public Counsel Services, with her) for the petitioner.

          Steven R. Strom, of Connecticut, for the intervener.

          Sarah M. Joss, Special Assistant Attorney General, for Commissioner of Probation.

          U. Gwyn Williams, Laura Carey, & Charles Stones, for Citizens for Juvenile Justice & another, amici curiae, submitted a brief.

         Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.


          [46 N.E.3d 998] Gants, C.J.

          This case comes to us on a reservation and report from the single justice asking the following questions:

" (1) Whether the Massachusetts courts are the appropriate forum for challenging additional probation conditions imposed on a probationer transferred to Massachusetts pursuant to the Interstate Compact for Adult Offender Supervision; and, if so, what is the proper mechanism for mounting such a challenge?
" (2) Whether a transferee probationer is entitled to actual notice of mandatory [global positioning system (GPS)] monitoring pursuant to G. L. c. 265, § 47[,] from the sentencing judge, or whether such notice is implied or waived by a petitioner's voluntary transfer to Massachusetts[?]
" (3) Whether mandatory GPS monitoring for crimes committed as a minor constitutes cruel and unusual punishment, where the minor was convicted as an adult in another jurisdiction?
" (4) Whether the Commissioner of Probation's Policy on the Issuance of Travel Permits is ultra vires; and, if not, whether the application of that policy to the petitioner violated his right to interstate travel?"

          [46 N.E.3d 999] In answer to the first question, we conclude that, where a probationer whose supervision is transferred to Massachusetts under the Interstate Compact for Adult Offender Supervision (compact) contends that a special condition of probation that was added by Massachusetts is not mandated by Massachusetts law or is unconstitutional, this determination is appropriately made by a Mass-

Page 817

achusetts court, and the appropriate mechanism to obtain such a determination is through the filing of a complaint for certiorari relief under G. L. c. 249, § 4, in Superior Court. We also conclude that the Massachusetts probation department may not add mandatory GPS monitoring under G. L. c. 265, § 47, as a special condition of probation for this probationer. In light of that conclusion, we decline to answer questions two and three because they are moot. In answer to question four, regarding the Policy on the Issuance of Travel Permits promulgated by the Massachusetts Commissioner of Probation (commissioner), we conclude that the prohibition on out-of-State travel for probationers being supervised for sex offenses is not an additional condition of probation imposed on a transferred probationer. We, therefore, reject the contention that the policy is ultra vires as an additional condition. We decline to answer whether the application of that policy to the petitioner violated his right to interstate travel because the appropriate forum for such a constitutional claim is the sending State, where it may be considered with the petitioner's nonconstitutional arguments for modification of the sending State's condition that he not travel out-of-State without permission from his probation officer.[3]


          On April 29, 2013, the petitioner, who was the defendant in criminal proceedings in the Connecticut Superior Court (defendant), pleaded guilty to two crimes that he committed at the age of fourteen against a six year old relative: sexual assault in the third degree and risk of injury to a minor. Although he was a juvenile when he committed these crimes and only fifteen years old when he pleaded guilty to their commission, he was convicted as an adult. After completing a residential treatment program, he was sentenced to a period of incarceration of five years (the execution of which was suspended) and ten years of probation supervision. The judge ordered a number of special conditions and, as permitted under Connecticut law, Conn. Gen. Stat. § 53a-30(b) (2015), authorized the probation department to add " any other conditions deemed appropriate."

         As a general condition of probation, the defendant was ordered not to leave the State of Connecticut " without permission from the Probation Officer." The Connecticut probation department also added twenty-four special conditions, including that the defendant " will submit to electronic monitoring as directed by a

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Probation Officer." The defendant signed the probation form that set forth these conditions and that obliged him to " abide by them," and his signature was witnessed by his grandmother.

         The defendant applied pursuant to the compact to transfer his probation supervision to Massachusetts, where he intended to live with his maternal grandparents.[4] [46 N.E.3d 1000] His application was granted and his supervision was transferred to Massachusetts, where he was assigned to the probation service of the Middlesex County Division of the Juvenile Court Department in Lowell because he was then sixteen years old.

         On February 19, 2014, the defendant filed a " Motion to Reopen and Modify Conditions of Probation" in the Superior Court in Connecticut that requested modification of several conditions, claiming they were unnecessary, impossible to comply with, or detrimental to his rehabilitation. Among the conditions he sought to modify were (1) that he submit to electronic monitoring as directed by a probation officer, and (2) that he not travel out of Massachusetts without the permission of a probation officer.[5] As to these conditions, the defendant asked the judge to modify or eliminate the requirement of electronic monitoring, and to authorize him, with prior approval of the Connecticut or Massachusetts probation department, to travel with his maternal grandparents to New Hampshire every weekend from May 23 to September 1, 2014. On April 3, 2014, as to these conditions, the judge granted the defendant's motion only to the extent that " GPS monitoring will be at [the] discretion of [the State] of Massachusetts Dept. of Probation (Juvenile)."

         On June 3, 2014, the defendant's attorneys wrote a letter to the commissioner asking that the defendant not be subjected to mandatory GPS monitoring, and that he be considered for travel permits to New Hampshire and Florida, " so long as his itinerary and other aspects of his travel meet approval by his Probation

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Officer." On August 22, 2014, the commissioner responded that the probation department considered the defendant's arguments for relief from the GPS requirement but decided to impose GPS monitoring because of the level of seriousness of the crime, the difference in age between the defendant and the victim, " the nature of the supervision for another state," the level of risk posed by the above factors, " the fact that he was treated in Connecticut as an adult on a long adult probation order[,] and ... that Connecticut originally included GPS as a condition and then modified its Order to leave it to Massachusetts' discretion." He added that, " [b]efore Probation can consider any adjustment to the GPS requirement, [the defendant] will have to complete one year of supervision with no violations and with full compliance." [6] The commissioner also declared that, once the defendant turned eighteen years of age [which he did in July, 2015], " Probation will continue the GPS as it would for any adult under [G. L. c. 265, § 47]." [7],[8]

          [46 N.E.3d 1001] The commissioner also wrote that the defendant had not justified an exception to the probation department's travel policy, dated January 11, 2012, which declared that the " Probation Service shall not authorize travel permits" under various circumstances, including where " [t]he probationer has an order of electronic monitoring ... as a condition of probation," where " [t]he probationer is being supervised for a sex offense," or where the probationer is an " interstate compact sex offender unless the sending state court has approved, and the probationer has produced, a travel permit in writing" (emphasis in original). The commissioner noted that, although the ...

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