Heard: November 9, 2016.
received and sworn to in the Hampden County Division of the
Juvenile Court Department on August 21, 2014. Indictments
found and returned in the Superior Court Department on
October 3, 2014.
for relief from conditions of probation were heard by Judith
J. Phillips, J., and a motion for reconsideration was
considered by her.
Supreme Judicial Court granted an application for direct
Chrismer Edmonds for the juvenile.
Cynthia Cullen Payne, Assistant District Attorney, for the
M. Schiff & Caroline Alpert, Committee for Public Counsel
Services, for Youth Advocacy Division of the Committee for
Public Counsel Services, amicus curiae, submitted a brief.
Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy,
& Budd, JJ.
juvenile was adjudicated both a youthful offender and a
delinquent juvenile as the result of a single sexual assault.
A Juvenile Court judge ordered the juvenile to register as a
sex offender and to submit to global positioning system (GPS)
monitoring, concluding that both consequences, under the
relevant statutes, were mandatory. The juvenile argues that
this conclusion was error. He argues first that the pertinent
section of the sex offender registration statute, G. L. c. 6,
§ 178E (f_), required the judge to make an
individualized determination whether the juvenile must
register as a sex offender because he was not "sentenced
to immediate confinement" within the meaning of the
statute. He also argues that the GPS monitoring statute, G.
L. c. 265, § 47, as interpreted by this court in
Commonwealth v. Hanson H., 464 Mass. 807 (2013),
does not require youthful offenders to submit to GPS
monitoring. We agree with the juvenile on both points.
Accordingly, we vacate the judge's
Background. 1. Facts. This case stems
from a sexual assault that occurred in June, 2014. The
juvenile, who was seventeen years old at the time, was at
home with the victim, his five-year-old half-sister. The
victim's father returned home and entered the living
room. There, he saw the victim being pushed to the ground and
noticed that the juvenile sitting on the couch "with his
drawers and his pants at his ankles." The victim was
naked from the waist down.
juvenile initially denied any wrongdoing. The victim later
described that the juvenile had touched her genitals and
chest area, made her touch his genitals, and penetrated her
labia with his penis in a way that caused her pain.
Prosecution, plea, and sentencing. Two juvenile
delinquency complaints issued, charging the juvenile with one
count of indecent assault and battery on a child under
fourteen, G. L. c. 265, § 13B, and one count of rape of
a child with force, G. L. c. 265, § 22A. Three youthful
offender indictments also issued, charging the juvenile with
one count of rape of a child with force, G. L. c. 265, §
22A, and two counts of aggravated rape of a child, G. L. c.
265, § 23A.
January, 2015, all charges were resolved pursuant to a plea
agreement. The juvenile admitted to sufficient facts to
warrant an adjudication as a youthful offender on the count
of rape of a child with force and as a delinquent juvenile on
the count of indecent assault and battery of a child. The
Commonwealth filed a nolle prosequi on the remaining three
charges. The judge accepted the parties' joint sentencing
recommendation. Pursuant to the recommendation, the judge
sentenced the juvenile on the youthful offender count to a
combination sentence as described in G. L. c. 119, § 58
(b). As part of that sentence, the juvenile was committed to
the Department of Youth Services (DYS). The juvenile was also
committed to DYS on the juvenile delinquency count.
Registration and GPS monitoring. After the plea and
sentencing, the juvenile filed two motions in which he sought
relief from mandatory sex offender registration under G. L.
c. 6, § 178E (f_), and relief from mandatory GPS
monitoring under G. L. c. 265, § 47, and this
court's opinion in Hanson H., 464 Mass. 807. In
February, 2015, the judge ruled that she had discretion to
relieve the juvenile of both the registration and the GPS
monitoring requirements, and ordered a risk assessment
evaluation to enable her to determine whether either, or
both, should apply to the juvenile. The Commonwealth moved
for reconsideration, which the juvenile opposed. The judge
then issued a revised decision in June, 2015, in which she
reversed her position, ultimately concluding that the
relevant statutes permitted her no discretion to relieve the
juvenile from sex offender registration or GPS monitoring.
Juvenile's appeal. The juvenile appealed from
the judge's revised decision. We allowed the
juvenile's application for direct appellate review and
transferred the case to this court.
1. Jurisdiction. The Commonwealth first argues that
the juvenile's appeal regarding mandatory registration is
not properly before the court because he has not exhausted
all administrative remedies or sought relief under G. L. c.
211, § 3. We agree that the juvenile has not
followed the appropriate procedure to obtain review of this
claim. See Commonwealth v. Ronald R., 450 Mass. 262,
266-267 (2007) (no automatic right of appeal when juvenile is
denied relief from registration obligation). The appropriate
procedure would have been to file a petition for relief under
G. L. c. 211, § 3, in the county court. See id.
Nonetheless, it will serve a substantial public interest to
resolve the questions presented by the juvenile's appeal,
these questions are likely to arise again, and the case has
been fully briefed and argued before the court. Accordingly,
we will answer the questions in this. See Hanson H.,
464 Mass. at 808 n.2 (deciding merits of appeal despite
mootness, when issue raised was of significant public
interest, fully briefed, and very likely to arise again in
similar circumstances, yet evade review). See also
Commonwealth v. Doe, 420 Mass. 142, 143 (1995),
overruled on other grounds by Commonwealth v. Pon,
469 Mass. 296 (2014) (exercising discretion to comment on
issues presented despite fact that report from lower court
was not properly before court); Cobb v. Cobb, 406
Mass. 21, 24 n.2 (1989) (citing authority provided by G. L.
c. 211, § 3, to answer improperly reported questions).
Registration as a sex offender. The first question
presented is whether G. L. c. 6, § 178E (f_) (§
178E [ f_]),  permitted the judge discretion to relieve
the juvenile of the requirement to register as a sex
offender. That is a question of statutory construction
subject to de novo review by this court. See Commonwealth
v. Ventura, 465 Mass. 202, 208 (2013).
178E (f_) permits a sentencing judge, in certain sex offense
cases, to conduct an individualized determination of whether
the sex offender must register as such. The section
contemplates three categories of sex offenders: (1) an adult
who has been convicted of a sex offense, (2) a juvenile who
has been adjudicated a youthful offender by reason of a sex
offense, and (3) a juvenile who has been adjudicated
delinquent by reason of a sex offense. Id. In any case where
the sentencing judge has not sentenced such a sex offender
"to immediate confinement, " the judge is to
determine, within fourteen days of sentencing, "whether
the circumstances of the offense in conjunction with the
offender's criminal history indicate that the sex
offender does not pose a risk of reoffense or a danger to the
public." Id. If the judge so determines, and none of the
statutory exceptions applies,  then the judge is to relieve the
individual from the obligation to register as a sex offender.
the language of § 178E (f_), the narrow question we
confront is whether the juvenile in this case, who has been
committed to DYS both as a youthful offender and as a
delinquent juvenile, has been "sentenced to immediate
confinement" within the meaning of § 178E (f_) .
Meaning of "sentenced to immediate
confinement." We begin with the plain meaning of
the statutory language. See Commonwealth v.
Mogelinski, 466 Mass. 627, 633 (2013), S_.C., 473 Mass.
164 (2015). The terms "sentenced, "
"confinement, " and "immediate
confinement" are not defined within the sex offender
registration statute. See G. L. c. 6, § 178C
(definitions applicable to §§ 178C to 178P). As a
result, we look to dictionary definitions as a guide to a