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13-P-1668                                            Appeals Court

                COMMONWEALTH   vs.   KEVIN PORTER.


                         No. 13-P-1668.

       Middlesex.      December 8, 2014. - July 30, 2015.

            Present:   Kafker, Grainger, & Agnes, JJ.


Escape. Imprisonment, Escape. Penal Institution. Statute,
     Construction. Practice, Criminal, New trial, Plea.



     Complaint received and sworn to in the Lowell Division of
the District Court Department on August 27, 2007.

     A motion for a new trial, filed on August 29, 2012, was
heard by Patricia A. Dowling, J.


     Leslie B. Salter for the defendant.
     Randall F. Maas, Assistant District Attorney, for the
Commonwealth.


    AGNES, J.   This case presents a question not previously

addressed by the Supreme Judicial Court or this court about the

scope of the statute which punishes an escape or an attempted

escape by "[a] prisoner of any penal institution."    G. L.
                                                                    2


c. 268, § 16.1   In particular, we are asked to determine whether

a person serving a house of correction sentence, which was

ordered to be served on weekends, see G. L. c. 279, § 6A,2 who

fails to report by 6:00 P.M. on a particular weekend, as

required by the terms of his sentence, has "escaped" within the

     1
       General Laws c. 268, § 16, as appearing in St. 1993,
c. 376, reads as follows: "A prisoner of any penal institution
including a prisoner who is held in custody for a court
appearance or a person committed under the provisions of [G. L.
c. 123A, § 5 or § 6,] to a treatment center or branch thereof
described in [G. L. c. 123A, §§ 2 and 4,] or a prisoner
committed to any jail or correctional institution under a lawful
order of a court, who escapes or attempts to escape from any
such institution or from land appurtenant thereto, or from any
courthouse or from land appurtenant thereto or from the custody
of any officer thereof while being conveyed to or from said
institution, center or branch, or fails to return from any
temporary release from said institution under the provisions of
[G. L. c. 127, § 90A,] or fails to return from any temporary
release from said institution, center or branch, may be pursued
and recaptured and shall be punished by imprisonment in the
state prison for not more than ten years or by imprisonment in a
jail or house of correction for not more than two and one-half
years."
     2
       General Laws c. 279, § 6A, as amended through St. 1998,
c. 463, § 193, provides in relevant part as follows: "When a
person is sentenced on a first offense to imprisonment in a jail
or house of correction for a term which does not exceed one
year, the court may order the sentence to be served in whole or
in part on weekends and legal holidays or such other periodic
interval as the court may determine. Such a sentence shall be
known as a special sentence of imprisonment. If an offender
receives a special sentence of imprisonment under this section,
he shall, unless otherwise provided by the sentence of the
court, report to the institution to which he has been sentenced
no later than 6:00 p.m. on Friday and shall be released at 7:00
a.m. on the succeeding Monday; provided, however, that if the
succeeding Monday is a holiday, the offender shall not be
released until 7:00 a.m. on Tuesday; and provided further, that
the total time served shall be equal to the sentence imposed.
. . ."
                                                                    3


meaning of § 16 because he "fail[ed] to return from any

temporary release from said institution."     G. L. c. 268, § 16.

For the reasons that follow, we answer that question in the

affirmative, and we affirm the order denying the defendant's

motion to withdraw his guilty plea.

     Background.   The essential facts are not in dispute. On

December 14, 2007, the defendant, Kevin Porter, pleaded guilty

to one count of escape from a penal institution in violation of

G. L. c. 268, § 16, and was sentenced to ten days in a house of

correction, to be served consecutively after completion of a

sentence he was then currently serving.3    At the time of his

plea, the defendant was serving a house of correction sentence

of one year, six months to serve, with the balance suspended for

eighteen months.   The sentencing judge specifically had ordered

that sentence to be served on weekends, beginning on August 3,

2007. See G. L. c. 279, § 6A.   On Friday, August 24, 2007, the

defendant failed to appear by 6:00 P.M. to serve his weekend

sentence as required by G. L. c. 279, § 6A.    The defendant

telephoned the house of correction to warn them that he could

     3
       The weekend sentence law, G. L. c. 279, § 6A, as amended,
see note 2, supra, under which he was then serving his sentence,
provides in part that "[i]f while serving such a special
sentence, such person is convicted of a subsequent crime other
than a nonmoving motor vehicle violation, the terms of said
special sentence shall be rescinded and said person shall
complete the balance of his original sentence consecutively in
the jail or house of correction in which he has been serving
said special sentence."
                                                                      4


not appear at the scheduled time.     The defendant returned to the

house of correction on Saturday, August 25, 2007, at 7:15 P.M.

and was taken into custody.4

     Discussion.     On August 29, 2012, the defendant filed a

motion for a new trial seeking to withdraw his guilty plea to

the escape charge.     See Commonwealth v. Penrose, 363 Mass. 677,

680-681 (1973) (motion for new trial is proper vehicle to

request to withdraw plea of guilty).     The defendant contends

that under the statutory definition of the offense the escape

must be from a jail or house of correction or from the custody

of a correction officer; in other words, that unless a person is

in a penal institution or in the "custody" of a correction

officer, his conduct in failing to appear to serve a weekend

sentence is a violation of a court order and may give rise to a

proceeding for contempt, but is not an "escape" under G. L.

c. 268, § 16.   As a result, he maintains that there was no

factual basis for his guilty plea because, he argues, the

actions alleged here do not satisfy all the elements of the


     4
       According to a disciplinary report of the Middlesex County
sheriff's office, dated August 24, 2007, at 10:24 P.M., which is
part of the record on appeal, "[a]t approximately 4:50 pm I/M
Kevin Porter called this Captain and stated he will be 45
minutes late for his weekend sentence. This Captain called I/M
Porter's girlfriend Natasha Barnhill at 6:45 pm and 7:15 pm to
have I/M Porter call this Captain or report for his weekend
sentence. At approx 8:01 pm I/M Porter had not arrived at BHOC
[Billerica house of correction] and was declared an escape.
EOR."
                                                                   5


crime set out in G. L. c. 268, § 16.   See Commonwealth v.

Palladino, 358 Mass. 28, 31 (1970) ("A conviction on an

indictment that charges no crime would be sheer denial of due

process"); Commonwealth v. Wilson, 72 Mass. App. Ct. 416, 418

(2008) ("A jurisdictional defect may be raised at any time . . .

and is not waived by the defendant's guilty plea").

     The defendant contends that his position finds support in

the text of G. L. c. 268, § 16, which applies to "[a] prisoner

of any penal institution" and to "a prisoner committed to any

jail or correctional institution who escapes . . . from the

custody of any officer thereof . . . or fails to return from any

temporary release from said institution under the provisions of

[G. L. c. 127, § 90A,] or fails to return from any temporary

release from said institution, center or branch . . . ."

According to the defendant, the reference in § 16 to G. L.

c. 127, § 90A,5 which authorizes the Commissioner of Correction


     5
       General Laws c. 127, § 90A, as amended through St. 1989,
c. 341, § 74, provides in pertinent part as follows: "The
commissioner may extend the limits of the place of confinement
of a committed offender at any state correctional facility by
authorizing such committed offender under prescribed conditions
to be away from such correctional facility but within the
commonwealth for a specified period of time, not to exceed
fourteen days during any twelve month period nor more than seven
days at any one time;   . . . . The administrator of a county
correctional facility may grant like authorization to a
committed offender in such facility. Such authorization may be
granted for any of the following purposes: (a) to attend the
                                                                  6


and sheriffs to give committed offenders special, temporary

releases of up to seven days, not to exceed fourteen days a

year, means that, other than with regard to escapes by persons

who are in actual custody in a facility at the time of the act,

the escape statute applies only to committed offenders who

receive one of these special, temporary releases.

    The defendant's reading of G. L. c. 268, § 16, disregards

prior precedents interpreting § 16 and is contrary to the plain

meaning of the text.   First, the house of correction where the

defendant was serving his weekend sentence qualifies as a "penal

institution."   Commonwealth v. Faulkner, 8 Mass. App. Ct. 936

(1979).   See Commonwealth v. Clay, 65 Mass. App. Ct. 215, 216-

217 (2005), citing G. L. c. 125, § 1(d), (k).   Second, G. L.

c. 279, § 6A, pursuant to which he received a sentence to be

served on weekends, designates the sentence as "a special



funeral of a relative; (b) to visit a critically ill relative;
(c) to obtain medical, psychiatric, psychological or other
social services when adequate services are not available at the
facility and cannot be obtained by temporary placement in a
hospital under [G. L. c. 127, §§ 117, 117A, and 118]; (d) to
contact prospective employers; (e) to secure a suitable
residence for use upon release on parole or discharge; (f) for
any other reason consistent with the reintegration of a
committed offender into the community . . . . A committed
offender shall, during his absence from a correctional facility
under this section, be considered as in the custody of the
correctional facility and the time of such absence shall be
considered as part of the term of sentence."
                                                                      7


sentence of imprisonment."   Moreover, the "custody" referred to

in § 16 has been read to include constructive custody as well as

actual custody.   Thus, the defendant was "[a] prisoner of [a]

penal institution."   G. L. c. 268, § 16.   And the pertinent

portion of § 16 reads that a prisoner who "fails to return from

any temporary release from said institution under the provisions

of [G. L. c. 127, § 90A,] or fails to return from any temporary

release from said institution . . . shall be punished by

imprisonment . . ." (emphasis supplied).    While the first

reference in § 16 to "temporary release" explicitly refers to

G. L. c. 127, § 90A, the next reference to "temporary release"

in the following phrase ("or fails to return from any temporary

release from said institution") does not.    It is a basic canon

of statutory construction that every word in a statute should be

given meaning and that no word is considered superfluous.       See

Casa Loma, Inc. v. Alcoholic Bevs. Control Commn., 377 Mass.

231, 234 (1979); Boone v. Commerce Ins. Co., 451 Mass. 192, 196

(2008).   Thus, it is apparent that the Legislature in the two

separate phrases was referring to two separate situations, the

second of which applies here.

    Further, we note that in Commonwealth v. Hughes, 364 Mass.

426, 429 (1973) (Hughes), the Supreme Judicial Court held that

G. L. c. 268, § 16, applied to a defendant who was serving a

sentence of incarceration and who did not return from a furlough
                                                                      8


granted pursuant to G. L. c. 127, § 90A, notwithstanding the

fact that the version of § 16 at the time did not contain any

reference to "temporary release" or to § 90A.   See G. L. c. 268,

§ 16, as amended through St. 1955, c. 770, § 82.      The Court

reasoned, construing § 16 in light of the statute's (1) "over-

all purpose of deterring and punishing prisoner escapes" and (2)

the concept of "constructive custody," which the court noted was

implicit in the furlough program established by G. L. c. 127,

§ 90A, that the language in question found in § 16 -- "[a]

prisoner of any penal institution" -- should be interpreted to

include both prisoners who are in actual custody as well as

those in constructive custody.   Id. at 429-430.6,7    General Laws


    6
       Contrast Commonwealth v. Boone, 394 Mass. 851 (1985)
(person who failed to return to Massachusetts Treatment Center
after administrator granted him eight-hour release pursuant to
Federal court consent decree could not be prosecuted for escape
under § 16, as appearing in St. 1973, c. 1062, § 1, because
there was no statute independent of § 16 that provided he was in
constructive confinement).
    7
       In Hughes, 364 Mass. at 429-430, the court stated that
"[l]iterally, G. L. c. 268, § 16, [as in effect at that time,]
did not make it a crime to remove oneself from the 'custody of
the correctional facility.' The statute did, however, provide
punishment for escape from the 'penal institution' itself.
While most likely that language was originally designed for
escapes from the physical confines of the institution, it can,
and indeed should, . . . be construed in light of (1) the
statute's over-all purpose of deterring and punishing prisoner
escapes, and (2) the introduction of the concept of
'constructive custody' in G. L. c. 127, § 90A. Importantly,
[G. L.] c. 268, § 16, did not define, and thereby limit, the
term 'penal institution,' and thus the language is open to
interpretive expansion suited to changes in the area of
                                                                   9


c. 268, § 16, has since been amended to explicitly include a

prisoner who "fails to return from any temporary release . . .

under the provisions of [G. L. c. 127, § 90A,] or fails to

return from any temporary release from said institution . . . ."

     Hughes was followed by Commonwealth v. Best, 381 Mass. 60

(1980) (Best).   There, the Court held that a prisoner serving a

house of correction sentence and assigned to a prerelease center

who failed to return to the center from a work release program

was subject to prosecution for an escape pursuant to G. L.

c. 268, § 16, even though the work release statute, G. L.

c. 127,   § 86F, contains language punishing those who escape

from a work release program.8   In Best, the Court reasoned that



corrections which have come about since the time of its
formulation. We believe that G. L. c. 127, § 90A, brings about
such a change, constructively, in the meaning of 'penal
institution' in the context of the furlough program with its
provision that '[t]he commissioner may extend the limits of the
place of confinement . . . at any state correctional facility'
by granting a furlough (emphasis added). Conceptually, then,
the Legislature authorized the commissioner or other appropriate
officer to 'extend the limits of the place of confinement' when,
acting under this statute, he authorizes a committed offender to
be away from a correctional facility, and to contract the limits
upon the expiration of the time prescribed by him. We believe
that it follows that any committed offender who without
authority goes beyond the limits of his place of confinement,
whether the limits be as determined by the original sentence, or
as extended by authority of this statute, or as contracted after
the expiration of such an extension, can be held to have escaped
from a 'penal institution' within the meaning of G. L. c. 268,
§ 16."
     8
       General Laws c. 127, § 86F, inserted by St. 1967, c. 821,
§ 1, provides, in pertinent part, that "[a]ny inmate
                                                                   10


"[e]ven though the Legislature did not repeat the 'extend the

limits of . . . confinement' language of [G. L. c. 127,] § 90A,

[in G. L. c. 127, § 86F,] the Legislature in § 86 did define an

escape, which constituted an 'escape from any penal institution'

within the meaning of G. L. c. 268, § 16," thus bringing the

"conduct within the reach of § 16."   Id. at 63.

    In the present case, once the defendant began to serve his

six-month sentence on Friday, August 3, 2007, he was obligated

under that sentence to report to the correctional institution on

successive weekends until he satisfied the terms of his

sentence.   The defendant's release each Monday morning was a

"temporary release from said institution" within the meaning of

G. L. c. 268, § 16, and during such periods, until he completed

service of his sentence, he was "[a] prisoner of [a] penal

institution" in constructive custody of that institution.    Cf.

Hughes, 364 Mass. at 429-430.   When the defendant failed without

justification to return to the institution by 6:00 P.M. on the



participating in such work release program and permitted to
leave his place of confinement for the purpose of working in
gainful employment, as herein provided, who leaves his place of
employment without permission of his employer and with the
intention of not returning to his place of confinement, or who
having been ordered by the sheriff or the work release
supervisor to return to his place of confinement neglects or
refuses to do so, shall be held to have escaped from such house
of correction, and shall be arrested and returned to such house
of correction, and, upon conviction of such escape, shall be
sentenced for a term not to exceed one year or the term for
which he was originally sentenced, whichever is the lesser."
                                                                 11


Friday in question, he, "[a] prisoner of [a] penal institution"

(the house of correction) violated the provision of G. L.

c. 268, § 16, punishing the "fail[ure] to return from any

temporary release from said institution."   This reading of § 16

is in keeping with the common and approved usage of the words

"temporary release" used by the Legislature, see G. L. c. 4,

§ 6, Third,9 and it also accords with the overarching legislative

purpose underlying G. L. c. 268, § 16, "of deterring and

punishing prisoner escapes."   See Hughes, 364 Mass. at 429.10

See also Commonwealth v. Reed, 364 Mass. 545, 547 (1974) ("[I]t

is our view that, in interpreting escape statutes, there is

justification for adopting a construction which permits the




     9
       The Legislature has not defined the term "temporary
release" that appears in G. L. c. 268, § 16. However, the
phrase has an ordinary meaning. "Temporary" commonly means
"lasting for a time only: existing or continuing for a limited
time: impertinent, transitory." Webster's Third New
International Dictionary 2353 (1993). "Release" commonly means
"the act of liberating or freeing: discharge from restraint."
Id. at 1917.
     10
       Because we conclude that § 16 is not ambiguous (see note
9, supra), there is no basis for an application of the "rule of
lenity." See, e.g., Commonwealth v. Coppinger, 86 Mass. App.
Ct. 234, 239 (2014). Also, what has been said about the
application of G. L. c. 268, § 16, disposes of the defendant's
claim of ineffective assistance of counsel as there is no basis
for the claim that defendant’s counsel misunderstood the
applicability of G. L. c. 268, § 16. See Commonwealth v.
Comita, 441 Mass. 86, 90-91 (2004) (counsel is under no
obligation to object or to challenge a ruling when there is
minimal chance of success).
                                                                 12


punishment of all escaping prisoners").

                                  Order denying motion for new
                                    trial affirmed.
