November 2, 2015.
April 1, 2016.
action commenced in the Supreme Judicial Court for the county
of Suffolk on January 29, 2015.
case was reported by Cordy, J.
L. Eisenberg, Committee for Public Counsel Services ( Lily
Lockhart, Committee for Public Counsel Services, with her)
for the petitioner.
R. Strom, of Connecticut, for the intervener.
M. Joss, Special Assistant Attorney General, for Commissioner
Gwyn Williams, Laura Carey, & Charles Stones, for
Citizens for Juvenile Justice & another, amici curiae,
submitted a brief.
Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
N.E.3d 998] Gants, C.J.
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
" (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?"
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-
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
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."
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
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.
defendant applied pursuant to the compact to transfer his
probation supervision to Massachusetts, where he intended to
live with his maternal grandparents. [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
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. 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)."
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
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."  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]." ,
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 ...