Heard: February 5, 2019.
District Court, Pretrial diversion, Arraignment. Practice,
Criminal, Arraignment. Civil action commenced in the Supreme
Judicial Court for the county of Suffolk on July 9, 2018. The
case was reported by Lowy, J.
P. Zanini, Assistant District Attorney (Cailin M. Campbell,
Assistant District Attorney, also present) for the
M. Joss, Special Assistant Attorney General (Nickeisha J.
Davidson also present) for Massachusetts Probation Service.
Maureen Stanton Flaherty for the respondent.
Alan Curhan, for Committee for Public Counsel Services &
another, amici curiae, submitted a brief.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
pretrial diversion statute, G. L. c. 276A, allows certain
first-time offenders, who are charged with specified offenses
in the District Court or the Boston Municipal Court, to seek
pretrial diversion to a treatment program rather than proceed
on the trial track. If, after screening, the probation
service determines that the individual is eligible for
pretrial diversion, and the program to which the probation
service refers the individual for assessment determines that
the person would benefit from participation in the program, a
judge has discretion to stay or continue the criminal
proceedings and assign the individual to a diversion program.
See G. L. c. 276A, §§ 2, 3, 5. If the person
successfully completes the program, the judge may dismiss the
criminal charges. G. L. c. 2 7 6A, §§ 5, 7.
matter, we consider two issues arising under the pretrial
diversion statute. First, whether the pretrial diversion
statute, G. L. c. 276A, § 3, requires, at the
Commonwealth's request, that a judge arraign a defendant
before he or she may take advantage of a pretrial diversion
program. Second, whether, during the statutory screening
period, see G. L. c. 276A, § 3, or thereafter if the
Commonwealth does not seek arraignment, a judge has authority
to order conditions of release, including global position
system (GPS) monitoring or drug screening by the probation
the first question, we conclude that, under G. L. c. 276A,
§ 3, a judge may not decline to arraign an adult
defendant, over the Commonwealth's objection, and instead
direct the defendant to a pretrial diversion program.
Although other pretrial diversion programs statutorily
mandate that a judge may not arraign an eligible defendant
before that defendant has an opportunity to complete a
pretrial diversion program, the language of G. L. c. 276A,
§ 3, requires arraignment, at the Commonwealth's
request, before a defendant can participate in a pretrial
diversion program. Compare G. L. c. 12, § 34, G. L. c.
119, § 54A, and G. L. c. 276B, § 2, with G. L. c.
276A, § 3.
the second question, we conclude that, whether during the
screening period prior to arraignment, see G. L. c. 276A,
§ 3, or thereafter if the Commonwealth does not seek
arraignment, a judge may order conditions of release. In
ordering those conditions, should a judge determine that
supervision by the probation service is necessary, the judge
has authority to order those services.
essential facts are undisputed. In November 2017, the
defendant was charged in the Boston Municipal Court with
assault and battery, G. L. c. 265, § 13A (a.), after an
alleged altercation with her boyfriend's former
girlfriend. At her initial appearance before a judge of that
court, the defendant moved to continue her arraignment so
that she could be assessed for eligibility for pretrial
diversion. Over the Commonwealth's objection, the judge
continued the arraignment for two weeks. The judge also
ordered, as a condition of release, that the defendant stay
away from the alleged victim; the Commonwealth did not object
to the condition. At the next hearing, the judge determined
that the defendant was eligible for pretrial diversion and
continued the case for about ninety days, pursuant to G. L.
c. 276A, § 5. The Commonwealth did not object to the
defendant's placement in a pretrial diversion program,
but again objected to the lack of arraignment.
the matter was continued a number of times, for reasons, such
as court scheduling, that are unrelated to the issues before
us. Arguing that the victim had accused the defendant of two
instances of harassment after pretrial diversion had begun,
the Commonwealth sought at several of those hearings, before
different judges, to have the defendant removed from pretrial
diversion and the case returned to the trial list. The
Commonwealth also moved to arraign the defendant. The
defendant requested that GPS monitoring be imposed, in order
to allow her to prove that she had not been in contact with
the victim. The Commonwealth did not oppose the imposition of
GPS monitoring, and a judge allowed the request. That judge
also scheduled an evidentiary hearing to determine whether
the defendant indeed had been in contact with the alleged
victim, in violation of the terms of her pretrial diversion;
the judge commented that he would not arraign the defendant
until he heard from the victim.
probation service thereafter appeared ex parte before the
judge, arguing that it had no authority to conduct GPS
monitoring of the defendant, because she had not been
arraigned; the judge again ordered that GPS be imposed. While
the evidentiary hearing was pending, the Commonwealth filed a
petition for extraordinary relief, pursuant to G. L. c. 211,
§ 3, in the county court. The single justice reserved
and reported the matter to the full court.
pretrial diversion statute, G. L. c. 276A, provides judges of
the District Court and the Boston Municipal Court Departments
authority to divert eligible individuals to a program of
community supervision and services rather than subject them
to the criminal trial process. See G. L. c. 276A, § 2.
The statute "originally was intended to provide
rehabilitation to those whose criminal habits had not become
'fixed'" (citation omitted). See
Commonwealth v. Morgan, 476 Mass. 768, 779 (2017).
When it was first enacted in 1974, the statute applied only
to young adults between the ages of eighteen and ...