Supreme Judicial Court of Massachusetts, Middlesex
Heard: December 6, 2016.
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.
Supreme Judicial Court granted an application for direct
Melissa Weisgold Johnsen, Assistant District Attorney, for
Elizabeth Hugetz, Committee for Public Counsel Services
(Benjamin H. Keehn, Committee for Public Counsel Services,
also present) for the defendant.
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.
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.
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
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 in the affirmative.
forth the relevant facts, which are largely
undisputed. 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.
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.
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.
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.
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.
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.
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 injections. He passed a union examination,
joined a local carpenters union, and has maintained
employment as a carpenter.
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 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.See art. 30 of the Massachusetts
Declaration of Rights; Commonwealth v.
Cole, 468 Mass. 294, 301 & n.10 (2014).
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
2. "If a CWOF is not available, may a court dismiss the
charge upon successful completion of diversion, over the
allowed Morgan's application for direct appellate review.
statutes are relevant to our consideration of the reported
questions. We set forth each in pertinent detail.
Pretrial diversion statute, G. L. c. 276A.
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