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Commonwealth v. Gardner

Supreme Judicial Court of Massachusetts, Plymouth

September 14, 2018


          Heard: May 7, 2018.

         A motion to dismiss was heard by Mark C. Gildea, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

          Gail M. McKenna, Assistant District Attorney (Shanan L. Buckingham, Assistant District Attorney, also present) for the Commonwealth.

          Joseph M. Kenneally for the defendant.

          David B. Hirsch, for Committee for Public Counsel Services, amicus curiae, submitted a brief.

          Present: Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ.

          CYPHER, J.

         We are called upon once again to determine the scope of persons who the Commonwealth may lawfully seek to commit as sexually dangerous persons under G. L. c. 123A. General Laws c. 123A, § 12 (b), authorizes the Commonwealth to file a petition to civilly commit a "prisoner or youth" deemed likely to be a "sexually dangerous person" (SDP), as that phrase is defined in G. L. c. 123A, § 1. "Prisoner" refers, in pertinent part, to a person who has previously been convicted of an enumerated sexual offense in § 1, and is presently in custody as a result of a criminal conviction. See Commonwealth v. Libby, 472 Mass. 93, 95-96 (2015). We consider in this case whether "prisoner" includes an individual in the custody of, and serving a sentence in, another State. Applying the required narrow construction of the SDP statute, our answer is no. There can be no doubt that the Legislature intended SDP commitment to extend only to those prisoners who are in Massachusetts custody, serving a Massachusetts sentence, at the time the Commonwealth files a commitment petition under § 12 (b).

         When the Commonwealth filed the petition in this case, the defendant was serving a Rhode Island sentence, albeit in a Massachusetts prison, pursuant to his transfer under the New England Interstate Corrections Compact (NEICC). The NEICC is an agreement among the six New England States authorizing the transfer of inmates between correctional facilities in those States, in order to provide "for the confinement, treatment and rehabilitation of offenders with the most economical use of human and material resources." Under the NEICC, the defendant remains under the jurisdiction of Rhode Island, not Massachusetts, following his transfer to a Massachusetts prison -- meaning the transfer conferred upon the Commonwealth no greater authority to commit him than it possessed while the defendant was in Rhode Island, which is none. We affirm the motion judge's dismissal of the Commonwealth's petition.


         The defendant, Richard Gardner, was convicted of several sexual assaults committed against four children in 1987 and 1988. The 1987 offense occurred when the defendant was twenty-one years old; he was charged with kidnapping and rape of a child in Massachusetts. While released on bail, in June and July of 1988, the defendant sexually assaulted three additional children in Massachusetts and Rhode Island. He was apprehended in Rhode Island, and in May, 1989, a Rhode Island jury found him guilty of sexual offenses and other crimes. He was ultimately sentenced in Rhode Island to fifty years in prison, with thirty years to serve and the balance suspended.[1] Separately, in August, 1989, while in Rhode Island custody, the defendant pleaded guilty to the Massachusetts charges of kidnapping and child rape, stemming from the 1987 incident; for this he received a sentence of from ten to fifteen years in prison. In May, 1991, the defendant also pleaded guilty to Massachusetts charges for the sexual offenses he had committed in July, 1988, and received another sentence of from seven and one-half to ten years.[2]

         In April, 2004, Rhode Island released the defendant to the custody of the Massachusetts Department of Correction to serve the two Massachusetts sentences. Near the end of the defendant's sentences, the Plymouth County district attorney (district attorney) was notified of the defendant's impending release, but for reasons that are unclear, the district attorney failed at that time to petition to have the defendant civilly committed as a sexually dangerous person. In October, 2016, the defendant was released from Massachusetts custody to begin his probationary sentence in Rhode Island.

         Eleven days after his release, the defendant was arrested in Quincy for violating a local bylaw that prohibits sex offenders from entering the public library.[3] He was brought back to Rhode Island where he was found in violation of his probation and sentenced to one year in prison, with the balance of his probation to resume upon his release. In March, 2017, the district attorney contacted an administrator with the Massachusetts Department of Correction to inform him of the district attorney's ongoing efforts to "get [the defendant] back to" Massachusetts to secure "access to [the defendant] to file the [SDP] petition." With four weeks left to serve on his one-year Rhode Island sentence, the defendant was involuntarily transferred to Massachusetts, pursuant to the NEICC, to serve the remainder of his sentence. The day after the defendant's transfer from Rhode Island to Massachusetts, the Commonwealth filed the underlying petition in the Superior Court seeking his civil commitment as an SDP.

         With the defendant's sentence set to expire on July 13, 2017, the Superior Court judge temporarily committed the defendant pending a probable cause determination. Later that month, the judge found probable cause to believe that the defendant was sexually dangerous, and continued his temporary commitment pending a psychological examination and trial. In August, 2017, the defendant moved to dismiss the petition, arguing that (1) the district attorney lacked the authority to file the petition because the defendant was not serving a Massachusetts sentence at the time it was filed, and (2) the defendant's transfer was invalid because it violated provisions of the NEICC. The judge granted the defendant's motion, agreeing that because the defendant was not serving a Massachusetts sentence, the district attorney lacked the authority to petition for the defendant's commitment. The judge stayed the defendant's release pending the Commonwealth's appeal, which ...

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