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Commonwealth v. Ballard

Appeals Court of Massachusetts, Worcester

February 2, 2018

COMMONWEALTH
v.
RONALD A. BALLARD.

          Heard: December 8, 2017.

         "Civil action commenced in the Superior Court Department on February 4, 2014.

         A motion to dismiss was heard by Daniel M. Wrenn, J.

          Ellyn H. Lazar-Moore, Assistant District Attorney, for the Commonwealth.

          John S. Day for the defendant.

          Present: Sacks, Ditkoff, & Singh, JJ.

          SACKS, J.

         The 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.

         Background.

         In the 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.

         In 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, [1] 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.[2]

         In 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.

         In 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.[3] 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.

         In 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 ...


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