February 5, 2019.
N.E.3d 231] District Court, Pretrial diversion,
Arraignment. Practice, Criminal, Arraignment.
ACTION commenced in the Supreme Judicial Court for the county
of Suffolk on July 9, 2018. The case was reported by Lowy, J.
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.
Stanton Flaherty, Hyde Park, for the respondent.
Alan Curhan, Boston, for Committee for Public Counsel
Services & another, amici curiae, submitted a brief.
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 [131
N.E.3d 232] 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. 276A, § § 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 Commonwealths
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 service.
the first question, we conclude that, under G. L. c. 276A, §
3, a judge may not decline to arraign an adult defendant,
over the Commonwealths 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 Commonwealths 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 boyfriends 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
Commonwealths 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
defendants 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 [131
N.E.3d 233] 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
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. ...