Heard: December 8, 2017.
action commenced in the Superior Court Department on February
motion to dismiss was heard by Daniel M. Wrenn, J.
H. Lazar-Moore, Assistant District Attorney, for the
S. Day for the defendant.
Present: Sacks, Ditkoff, & Singh, JJ.
Commonwealth appeals from a judgment dismissing its petition
to commit the defendant as a sexually dangerous person (SDP)
pursuant to G. L. c. 123A, § 12. On the date the
petition was filed, the defendant was serving a criminal
sentence; some two and one-half years later, the defendant
was allowed to withdraw the guilty pleas to the offenses for
which he had been sentenced. This led a Superior Court judge
to rule, based on his interpretation of Coffin v.
Superintendent, Mass. Treatment Center, 458 Mass.
186 (2010), that the defendant was not a prisoner under G. L.
c. 123A, § 12(b), at the time the petition was filed,
and thus was not subject to being committed as an SDP.
Concluding that the judge applied Coffin too
broadly, we reverse.
1980s, the defendant was convicted of a number of sexual
offenses against women in both the Commonwealth and
California. He received State prison sentences in both
jurisdictions, completing his sentence in the Commonwealth in
2003, at which time the Commonwealth successfully petitioned
to commit him to the Massachusetts Treatment Center
(treatment center) as an SDP. Following a trial in which the
defendant was found no longer sexually dangerous, he was
discharged in 2007.
2013, based on an incident in which the defendant approached
a seventeen year old female working at a farm stand, criminal
complaints issued from the District Court charging him with
accosting or annoying a person of the opposite sex in
violation of G. L. c. 272, § 53,  threatening to
commit a crime in violation of G. L. c. 275, § 2, and
intimidation of a witness in violation of G. L. c. 268,
§ 13B. In January, 2014, the defendant pleaded guilty to
the charges and was sentenced to concurrent sentences
amounting to nine months in the house of correction, with
credit for time served.
February, 2014, while the defendant was serving his
sentences, the Commonwealth petitioned in Superior Court to
have him civilly committed as an SDP. In April, 2014, a
different judge found probable cause to believe the defendant
was an SDP and committed him to the treatment center for
examination and diagnosis by two qualified examiners. Based
on their reports, the Commonwealth moved for a jury trial;
after that motion was allowed, the defendant obtained funds
to retain his own experts for the purposes of trial.
January, 2015, while trial preparations were ongoing and the
defendant remained at the treatment center, he filed a motion
in the District Court to withdraw his guilty pleas and for a
new trial, asserting that the plea colloquy was defective by
reason of the prosecutor's failure to state sufficient
facts to establish the elements of each
offense. That motion was denied. The defendant
appealed and in August, 2016, in a memorandum and order
issued pursuant to our rule 1:28, a panel of this court
reversed, holding that the prosecutor's statement was
inadequate to establish that a sufficient factual basis
existed for any of the charges, thus resulting in
constitutional error. Commonwealth v.
Ballard, 90 Mass.App.Ct. 1102 (2016). The panel
directed the entry of an order allowing the motion to
withdraw the guilty pleas and for a new trial.
September, 2016, the defendant moved in Superior Court to
dismiss the Commonwealth's petition to commit him as an
SDP. He argued that the result of the 2016 order allowing him
to withdraw his guilty pleas was that, at the time the
petition was filed in 2014, he had been serving a
"constitutionally unlawful sentence." He asserted
that therefore he was not a prisoner under G. L. c. 123A,
§ 12(b), as interpreted in Coffin, 458 Mass. at
187, and so could not be subject to civil commitment as an
SDP. The Superior ...