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Commonwealth v. Morgan

Supreme Judicial Court of Massachusetts, Middlesex

April 18, 2017


          Heard: December 6, 2016.

         Complaint received and sworn to in the Lowell Division of the District Court Department on October 3, 2014. A motion for pretrial diversion was heard by Barbara S. Pearson, J., and questions of law were reported by her to the Appeals Court.

         The Supreme Judicial Court granted an application for direct appellate review.

          Melissa Weisgold Johnsen, Assistant District Attorney, for the Commonwealth.

          Elizabeth Hugetz, Committee for Public Counsel Services (Benjamin H. Keehn, Committee for Public Counsel Services, also present) for the defendant.

          John C. Mooney, for John C. Mooney & another, amici curiae, submitted a brief.

          Present (Sitting at Lawrence): Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ.[1]

          LENK, J.

         This case comes to us on two reported questions and calls upon us to construe for the first time the so-called VALOR Act, St. 2012, c. 108, entitled "An Act relative to veterans' access, livelihood, opportunity and resources." The VALOR Act was enacted in 2012 in the aftermath of protracted American military engagements in Afghanistan and Iraq. In recognition of the toll thereby taken on many who served in the military, the VALOR Act, among other things, amended the statute providing young adults with pretrial diversion, G. L. c. 276A (pretrial diversion statute), to include qualifying veterans and active duty members of our armed forces facing criminal charges in the District and Boston Municipal Courts.

         We address first whether, under the pretrial diversion statute, as amended by the VALOR Act, a judge is authorized to dismiss or to continue such charges without a finding upon a defendant's successful completion of an approved pretrial diversion program. We conclude that the judge is so authorized, rejecting the Commonwealth's view that the VALOR Act amendments permit only a continuance of court proceedings, on the flawed view that, while military defendants could seek treatment through court-approved programs, they would face resumed prosecution of the charged offenses even after the successful completion of such a program.

         We go on to address the reported questions and consider whether the pretrial diversion statute, as amended by the VALOR Act, permits a judge to continue without a finding (CWOF) or to dismiss a charge of operating a motor vehicle while under the influence of alcohol or drugs (OUI), second or subsequent offense, notwithstanding the provisions of G. L. c. 90, § 24, which generally proscribe such dispositions. Our analysis of this question ultimately turns on the legislative intent of the VALOR Act and its multifaceted approach to assisting members of the military in their often-difficult return to civilian life, during which many succumb to substance abuse. We conclude that, notwithstanding otherwise applicable constraints on alternative dispositions that the preexisting OUI statute imposes, the pretrial diversion statute, as amended in 2012 by the VALOR Act, vests judges with discretion to order either of the two alternative dispositions at issue in appropriate cases that involve charges of OUI, second or subsequent offense. We accordingly answer both reported questions[2] in the affirmative.[3]

         1. Background.

         We set forth the relevant facts, which are largely undisputed.[4] The defendant, Joel D. Morgan, is a veteran of the United States Army, in which he served from 2002 to 2011. During his last four years of service, he completed three consecutive tours of duty, two in Iraq and one in Afghanistan. As early as the first of these deployments, he began to experience symptoms of posttraumatic stress disorder (PTSD), and by the time he returned from his final tour of duty in Afghanistan in 2011, his untreated symptoms had significantly worsened. He also had numerous physical disabilities as the result of injuries received during his tours of duty.[5]

         Immediately upon returning from Afghanistan, Morgan sought mental health treatment through the United States Department of Veterans Affairs (VA), but the VA was unable to schedule an intake appointment for four months. While awaiting evaluation and treatment, Morgan began to self-medicate by abusing alcohol and opioids. In January, 2012, he was evaluated and was diagnosed with PTSD. In the fall of 2012, the VA also determined that Morgan was one hundred per cent disabled. On Veteran's Day, in November, 2012, Morgan's identical twin brother, himself a veteran of the wars in Iraq and Afghanistan, who suffered from PTSD and a traumatic brain injury, committed suicide. The impact of his twin's suicide on Morgan's efforts to return to ordinary civilian life was considerable.

         In April, 2013, Morgan entered a short-term detoxification program at a VA hospital in Bedford. Immediately after release from that program, he entered an intensive outpatient program, but completed only one month. In July, 2013, Morgan visited his mother, who had moved to California, and he successfully completed a two-month residential treatment program there. He thereafter relapsed.

         On September 29, 2014, Morgan was driving erratically on Interstate 495 in Tewksbury when his vehicle swerved into another lane and hit the side of a tow truck. Morgan did not stop to exchange insurance information at the scene. The tow truck driver telephoned police and reported the incident; he also said that he had observed a Toyota (later identified as Morgan's) driving very erratically for ten miles before the accident. Morgan continued driving until he was stopped by a State police trooper in Boxborough, who had been alerted by the truck driver's report, and who observed Morgan still driving erratically.

         When stopped, Morgan appeared to be under an intoxicating influence; he was disheveled and sweating, with glassy eyes and slurred speech. Dried blood and needle marks were visible on his left arm. The trooper who conducted the stop called for backup, and ultimately was joined by four other troopers. Morgan informed one of the troopers that he had heroin and a hypodermic needle in his possession, and those items were taken into police custody. Morgan was arrested and driven to the State police barracks for booking. He waived his Miranda rights and agreed to be evaluated by a drug recognition specialist, who concluded that Morgan was exhibiting signs of opioid use. Police found drug paraphernalia in the vehicle near the driver's seat, including plastic bags, a bottle cap, and two hypodermic needles.

         The following week, Morgan was arraigned in the District Court on charges of OUI, second offense; possession of heroin; negligent operation of a motor vehicle; and leaving the scene of property damage. When his attorney later learned that Morgan was a veteran, she sought pretrial diversion under the VALOR Act. He was evaluated by the VA, which determined that he would benefit from such a program.

         At different VA medical centers, Morgan underwent detoxification, received specialized PTSD counselling for the first time, and also began supportive counselling for substance abuse, in conjunction with monthly Naltrexone[6] injections. He passed a union examination, joined a local carpenters union, and has maintained employment as a carpenter.[7]

         Three months after arraignment, in January, 2015, Morgan filed a motion, pursuant to the pretrial diversion statute, seeking dismissal of all charges should the pretrial diversion program prove successful. In the alternative, he sought to admit to sufficient facts and have the case continued without a finding. The prosecutor opposed both dispositions, contending that, given the terms of the OUI statute, G. L. c. 90, §§ 24 and 24D, the judge could not continue a second offense[8] without a finding. He also maintained that, in any event, the pretrial diversion statute did not permit a judge to dismiss a case involving a veteran or active duty member of the military and that, absent statutory authorization, such dismissal, over the Commonwealth's objection, infringed on the separation of powers.[9]See art. 30 of the Massachusetts Declaration of Rights; Commonwealth v. Cole, 468 Mass. 294, 301 & n.10 (2014).

         Acknowledging that the case presented an unsettled question of law, the judge reported the following two questions to the Appeals Court, pursuant to Mass. R. Crim. P. 34, as amended, 442 Mass. 1501 (2004):

1. "Under the VALOR Act, may a judge exercise discretion to enter a CWOF after an admission to an OUI-second offense?"
2. "If a CWOF is not available, may a court dismiss the charge upon successful completion of diversion, over the Commonwealth's objection?"

         We allowed Morgan's application for direct appellate review.

         2. Statutory background.

         Two statutes are relevant to our consideration of the reported questions. We set forth each in pertinent detail.

         a. Pretrial diversion statute, G. L. c. 276A.

         In 1974, the Legislature inserted c. 276A into the General Laws by enacting St. 1974, c. 781, "An Act establishing a district court procedure to divert selected offenders from the district courts to programs of community supervision and service." As initially enacted, the statute provided for pretrial diversion to a program, followed by dismissal or a continuance ...

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