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SJC-11831
                  COMMONWEALTH   vs.   BRIAN LIBBY.



             Suffolk.      May 7, 2015. - July 1, 2015.

  Present:    Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
                            & Hines, JJ.



Sex Offender. Due Process of Law, Sex offender, Pretrial
     detainees. Statute, Construction. Words, "Prisoner."



     Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on November 6, 2014.

    The case was reported by Duffly, J.


     Eric Tennen (Michael F. Farrington with him) for the
defendant.
     Canan Yesilcimen, Assistant District Attorney, for the
Commonwealth.


    GANTS, C.J.    The issue on appeal is whether the

Commonwealth may file a petition pursuant to G. L. c. 123A,

§ 12, to civilly commit someone as a sexually dangerous person

(SDP) who previously was convicted of a "sexual offense," as

defined under G. L. c. 123A, § 1, but is currently in custody
                                                                      2


only because he was unable to post bail in a pending criminal

case.   We conclude that the Commonwealth may file an SDP

petition under § 12 against a person who has been convicted of a

sexual offense only where the person is in custody because of a

criminal conviction, an adjudication as a delinquent juvenile or

youthful offender, or a judicial finding that the person is

incompetent to stand trial.    The Commonwealth may not file such

a petition where, as here, the defendant is in custody only

because he is awaiting trial, unless a judge has found the

defendant incompetent to stand trial.

    Background.     The defendant, Brian Libby, was convicted in

2002 of indecent assault and battery on a child under the age of

fourteen, which qualifies as a "sexual offense" under G. L.

c. 123A, § 1, and was sentenced to two and one-half years in a

house of correction.    He was subsequently convicted of other

offenses, but was not serving a sentence on any of these

convictions when he was indicted on October 11, 2013, for

failure to register as a sex offender, subsequent offense.       At

his arraignment in the Superior Court, a judge set bail in the

amount of $5,000.    The defendant has been unable to post bail on

this pending indictment, and has remained in custody for that

reason alone awaiting trial.

    On May 12, 2014, the Commonwealth filed an SDP petition for

civil commitment pursuant to G. L. c. 123A, § 12.    The defendant
                                                                     3


moved to dismiss the petition for "failure of jurisdiction,"

claiming that the district attorney is not authorized to file a

petition against the defendant when he is in custody only

because he is "a homeless person charged with a crime and unable

to afford . . . bail."    The judge denied the motion.     Citing

Commonwealth v. Gillis, 448 Mass. 354, 358-359 (2007), and

Commonwealth v. Allen, 73 Mass. App. Ct. 862, 864 (2009), the

judge concluded that § 12 "contemplates" the SDP commitment of

persons previously convicted of a sexual offense "who are

currently serving a criminal sentence or who face pending

charges and are awaiting trial."    The defendant sought

interlocutory review of the denial of the motion to dismiss,

pursuant to G. L. c. 211, § 3.     The single justice reserved and

reported the case without decision for determination by the full

court.

     Discussion.    We briefly summarize the relevant provisions

of G. L. c. 123A regarding the civil commitment of a person

found to be a "sexually dangerous person," as defined in § 1.1


     1
         A "sexually dangerous person" (SDP) is defined as

     "any person who has been (i) convicted of or adjudicated as
     a delinquent juvenile or youthful offender by reason of a
     sexual offense and who suffers from a mental abnormality or
     personality disorder which makes the person likely to
     engage in sexual offenses if not confined to a secure
     facility; (ii) charged with a sexual offense and was
     determined to be incompetent to stand trial and who suffers
     from a mental abnormality or personality disorder which
                                                                   4


The procedure for filing an SDP petition is set forth in § 12.

Under § 12 (a), an "agency with jurisdiction"2 must notify in

writing the relevant district attorney3 and the Attorney General

six months prior to the release of three categories of persons.4



     makes such person likely to engage in sexual offenses if
     not confined to a secure facility; or (iii) previously
     adjudicated as such by a court of the commonwealth and
     whose misconduct in sexual matters indicates a general lack
     of power to control his sexual impulses, as evidenced by
     repetitive or compulsive sexual misconduct by either
     violence against any victim, or aggression against any
     victim under the age of [sixteen] years, and who, as a
     result, is likely to attack or otherwise inflict injury on
     such victims because of his uncontrolled or uncontrollable
     desires."

G. L. c. 123A, § 1.
     2
         An "agency with jurisdiction" is defined as

     "the agency with the authority to direct the release of a
     person presently incarcerated, confined or committed to the
     department of youth services, regardless of the reason for
     such incarceration, confinement or commitment, including,
     but not limited to a sheriff, keeper, master or
     superintendent of a jail, house of correction or prison,
     the director of a custodial facility in the department of
     youth services, the parole board and, where a person has
     been found incompetent to stand trial, a district
     attorney."

G. L. c. 123A, § 1.
     3
       The relevant district attorney is the "district attorney
of the county where the offense occurred." G. L. c. 123A,
§ 12 (a).
     4
       Where a person "is returned to prison for no more than six
months as a result of a revocation of parole or . . . is
committed for no more than six months, such notice shall be
given as soon as practicable following such person's admission
to prison." G. L. c. 123A, § 12 (a).
                                                                   5


The three categories are (1) "a person who has ever been

convicted of or adjudicated as a delinquent juvenile or a

youthful offender by reason of a sexual offense as defined in

[§] 1, regardless of the reason for the current incarceration,

confinement or commitment"; (2) a person charged with such a

sexual offense who "has been found incompetent to stand trial;"

and (3) a person charged with "any offense," who "is currently

incompetent to stand trial," and who "has previously been

convicted of or adjudicated as a delinquent juvenile or a

youthful offender by reason of a sexual offense."   G. L.

c. 123A, § 12 (a).   If the district attorney or the Attorney

General determines that the "prisoner or youth in the custody of

the department of youth services is likely to be a sexually

dangerous person as defined in [§] 1," the district attorney or

the Attorney General at the request of the district attorney may

file an SDP petition "in the superior court where the prisoner

or youth is committed or in the superior court of the county

where the sexual offense occurred."   G. L. c. 123A, § 12 (b).

    It is plain from the statute that the relevant district

attorney or the Attorney General may file an SDP petition only

against a person who is included within the three categories of

persons for whom notice must be given of their impending

release.   See Gillis, 448 Mass. at 357 ("In general, the

triggering event for SDP commitment is the impending release,
                                                                     6


usually from prison, of a sex offender"); Commonwealth v.

Nieves, 446 Mass. 583, 586 (2006) (SDP commitment process

"begins" with agency with jurisdiction giving notice six months

prior to release of person previously convicted of sexual

offense); Commonwealth v. McLeod, 437 Mass. 286, 290-291 (2002).

Where the defendant here has not been found incompetent to stand

trial, the Commonwealth contends that the defendant falls within

the first category.     The Commonwealth's argument essentially

rests on two grounds.

    First, the Commonwealth notes that the first category

includes any person convicted or adjudicated of a sexual offense

who is currently incarcerated, confined, or committed,

"regardless of the reason for the current incarceration,

confinement or commitment."     Because the defendant previously

was convicted of a sexual offense and is in confinement awaiting

trial due to his failure to post bail, the Commonwealth

maintains that he meets these criteria.

    Second, the Commonwealth notes that § 12 (b) permits a

district attorney to file an SDP petition against a "prisoner,"

and that we have said that "[t]he word 'prisoner,' in its

'common and approved usage,' refers to an individual who is

either serving a criminal sentence or awaiting trial."     Gillis,

448 Mass. at 358-359, citing 12 Oxford English Dictionary 513

(2d ed. 1989) ("one who is kept in custody . . . as the result
                                                                   7


of a legal process, either as having been condemned to

imprisonment as a punishment, or as awaiting trial for some

offence"), Webster's Third New International Dictionary 1804

(1993) ("a person held under arrest or in prison"), and Black's

Law Dictionary 1213 (7th ed. 1999) ("A person who is serving

time in prison"; "[a] person who has been apprehended by a law-

enforcement officer and is in custody, regardless of whether the

person has yet been put in prison").

    In determining whether § 12 permits an SDP petition to be

filed against a person previously convicted of a sexual offense,

who is competent to stand trial, and is in custody awaiting

trial, we apply familiar principles of statutory interpretation,

"informed by the rule that '[l]aws in derogation of the liberty

or general rights, of the citizen . . . are to be strictly

construed.'"   Gillis, supra at 357, quoting Commonwealth v.

Beck, 187 Mass. 15, 17 (1904).   "Narrowly construing the SDP

statute, as with other statutes in derogation of liberty, not

only helps avoid possible constitutional due process problems,

. . . but also helps ensure that individuals are not deprived of

liberty without a clear statement of legislative intent to do

so" (citation omitted).   Gillis, supra.   Applying the required

strict construction of § 12, we conclude that it does not permit

an SDP petition to be filed against a person previously

convicted of a sexual offense who is in custody awaiting trial,
                                                                    8


where there has been no finding that the person is incompetent

to stand trial.

    As to the Commonwealth's first argument, we note that the

phrase, "regardless of the reason for the current incarceration,

confinement or commitment," was added to § 12 (a) through an

amendment in 2004.   See St. 2004, c. 66, § 8.   Before that

language was added, we had declared in McLeod, 437 Mass. at 286,

that § 12 (a) did not apply to "persons convicted of sexual

offenses who have completed and been released from those

sentences but who are later serving sentences for crimes that

are not statutorily enumerated 'sexual offenses.'"    In that

case, the defendant had been convicted of aggravated rape and

kidnapping, but had completed the sentences for those crimes,

and was in a house of correction serving time for convictions

that were not sexual offenses when the SDP petition was filed.

Id. at 287.   We determined that "[t]he thrust of the statutory

scheme [was] that commitment petitions should be brought against

persons currently incarcerated for sexual offenses who are about

to be released into the community but who, because they are

sexually dangerous, are likely to commit another sexual offense,

and, therefore, should not be released."   Id. at 291.   We noted

that "[w]ere we to conclude otherwise, any defendant serving a

sentence for any crime who had ever in the past committed an

enumerated sexual offense, no matter how temporally distant,
                                                                   9


would be eligible for civil commitment, contingent on that

defendant's current mental condition."   Id. at 292.

     The 2004 amendment revised § 12 (a) to do precisely that.

The legislative history suggests that the Legislature did not

intend by this amendment to do more than allow an SDP petition

to be filed against a person convicted of a sexual offense who

was serving a sentence for a nonsexual offense, or who was found

incompetent to stand trial on a nonsexual offense.5    See

Memorandum from William J. Meade, Deputy Chief Counsel, and

     5
       We note that, in 2002, Alexandra Zapp was brutally
murdered at a rest stop on a Massachusetts highway by a person
previously convicted of a sexual offense who had recently been
released from incarceration following a conviction of a
nonsexual offense. See Lambiaso, "Ally Zapp" Law, Signed by
Romney, Grants New Powers Over Offenders, State House News
Service, Apr. 7, 2004. Press reports after her murder noted
that the law did not allow the district attorney to file an SDP
petition before the person's release, because he was serving a
sentence on a nonsexual offense. See Confining the Dangerous,
Boston Globe, July 20, 2002, at A.12 (prosecutors' attempt to
civilly commit Zapp murder suspect failed because SDP law was
interpreted to deny SDP petition "if the most recent offense for
which [a person previously convicted of a sexual offense] is
held is not a sex crime"); Lambiaso, supra ("Romney and
lawmakers say the law is needed to close a loophole in the 1999
civil commitment statute that prevents judges from keeping
criminals in jail if they previously committed a sex crime but
were serving a sentence for something non-sexual"). See also
Testimony of Lieutenant Governor Kerry Healey before the Joint
Committee on the Judiciary (testifying in favor of 2004
amendment to SDP law and stating, "It is an honor to sit beside
Ms. Andrea Casanova, Alexandra Zapp's mother. Her involvement
in this issue will help to keep her daughter's memory alive and
protect innocent people from sexually dangerous individuals");
State House News Service, (Senate Sess.), Oct. 7, 2003
(Statement of Sen. Brian A. Joyce that proposed amendment to SDP
law "relates to the Zapp murder" and that "[t]he murderer could
have been civilly committed under [the proposed] bill").
                                                                   10


Daniel B. Winslow, Chief Legal Counsel, to Senior Staff of the

Executive Department (Apr. 7, 2004) (McLeod opinion highlighted

limitations of pre-2004 SDP law by holding that person

previously convicted of sexual offense was ineligible for civil

commitment "because the offense for which the [person] was

serving a sentence at the time the commitment petition was filed

was not a statutorily-enumerated 'sexual offense'" [emphasis

added]); Testimony of Lieutenant Governor Kerry Healey before

the Joint Committee on the Judiciary (2004 amendment to SDP law

"allows district attorneys to file petitions to civilly commit

incarcerated persons as sexually dangerous persons, regardless

of the purpose of their current incarceration.   For example, an

individual serving time for assault and battery could be civilly

committed based on prior sex offenses").   Although the language

added was broader than "incarceration," and included

"confinement or commitment," we need not interpret that language

to include all those confined awaiting trial to avoid rendering

the words superfluous.   Confinement "may refer to persons in

custody who are incompetent to stand trial for an offense."

Gillis, 448 Mass. at 361.   Commitment may refer to a commitment

to the department of youth services following a juvenile

adjudication.   See id. at 361, 363-364 (SDP petition may not be

filed against individual who had completed his criminal sentence

and was civilly committed due to mental illness); G. L. c. 123A,
                                                                   11


§ 1 ("agency with jurisdiction" defined as "agency with the

authority to direct the release of a person presently

incarcerated, confined or committed to the department of youth

services").

    The 2004 amendment also added a third category of persons

who may be subject to an SDP petition:    a person charged with

"any offense," who "is currently incompetent to stand trial,"

and who "has previously been convicted of or adjudicated as a

delinquent juvenile or a youthful offender by reason of a sexual

offense."   St. 2004, c. 66, § 9.   If the first category included

all persons convicted of sexual offenses who were in custody

awaiting trial, there would be no reason for the Legislature to

add this third category, which includes only the narrow subset

of those awaiting trial on any offense who were found to be

incompetent.

    Moreover, if the Legislature intended the addition of the

phrase, "regardless of the reason for the current incarceration,

confinement or commitment," to permit an SDP petition to be

filed against a person previously convicted of a sexual offense,

who is confined awaiting trial without being found incompetent,

the Legislature would have amended the requirement that an

"agency with jurisdiction" give written notice six months prior

to such person's release.   Such a notice requirement reasonably

could not be applied to a person who is in custody only because
                                                                    12


of an inability to post bail, who could obtain immediate release

upon posting bail.   The Legislature in § 12 (a) recognized that

six months' prior notice may not be practicable in certain

circumstances, but it limited those circumstances to two:    "the

case of a person who is returned to prison for no more than six

months as a result of a revocation of parole or who is committed

for no more than six months."   If the Legislature had

contemplated that an SDP petition could be filed after a

person's arrest while that person was in custody awaiting a bail

determination or seeking the funds to post bail, it would have

recognized this possibility in its notice provision.

    As to the Commonwealth's second argument, we acknowledge

the dictum in Gillis, 448 Mass. at 358-359, that included those

"awaiting trial" in the dictionary definition of the word

"prisoner."   We also recognize that "prisoner" is a word that is

not defined in G. L. c. 123A, § 1, but is used in § 12 (b),

which provides that "the district attorney . . . may file a

petition alleging that the prisoner or youth is a sexually

dangerous person."   But we are not persuaded that this means

that the Legislature intended to permit the filing of an SDP

petition against someone who is in custody awaiting trial and

who has not been found incompetent.

    The issue in Gillis was whether an SDP petition may be

filed against a person previously convicted of a sexual offense
                                                                     13


who was no longer serving a sentence but was civilly committed

for mental illness.    448 Mass. at 355-356.   The adoption of the

dictionary definition of "prisoner" supported our conclusion

that a person who was civilly committed was not a "prisoner" as

that word is used in § 12 (b); we did not need to decide whether

a person held in custody awaiting trial was a "prisoner."     Id.

at 359.    Moreover, it would be unreasonable to strip the words

"prisoner or youth" from their context in § 12 (b), apply their

dictionary definitions, and conclude that the Legislature

intended that a district attorney may file an SDP petition

against any prisoner or youth, as those words are commonly used.

Those words are plainly a shorthand reference to the three

categories of persons identified in § 12 (a) who are subject to

the filing of an SDP petition, and are limited in scope to those

three categories of persons.

     For all these reasons, we conclude that interpreting the

first category of persons subject to the filing of an SDP

petition to include all persons previously convicted of a sexual

offense who are in custody awaiting trial would be inconsistent

with other provisions in § 12 and unsupported by the legislative

history.   It also would raise serious practical problems that

would complicate the already complex SDP petition procedure.

Under the Commonwealth's interpretation, an SDP petition could

be filed against a person previously convicted of a sexual
                                                                     14


offense who is in custody awaiting trial, regardless of how

minor the charge, even if the person has yet to appear at

arraignment or is awaiting the arrival of family members to post

bail.    This could invite an unseemly race to file the SDP

petition before the defendant posted bail, and might provide the

Commonwealth with an incentive to delay the arraignment or

hinder the posting of bail to allow it the time needed to file

the petition.   Moreover, the Commonwealth's interpretation would

mean that an SDP proceeding would likely occur at the same time

as a criminal proceeding, and that an acquittal in the criminal

case would not end the SDP proceeding.   It would also mean that

a defendant who was unable to afford bail would be more

vulnerable to the filing of an SDP petition than a comparable

defendant with the means to post bail.

     Because G. L. c. 123A, § 12, must be strictly construed, a

clear statement of legislative intent is needed to permit an SDP

petition to be filed against those in custody awaiting trial who

were not found incompetent.    See Gillis, 448 Mass. at 357.    We

conclude that there is nothing close to a clear statement of

legislative intent to do so.    As a result, the SDP petition

against the defendant must be dismissed.6



     6
       If the defendant were to be convicted of the pending
charge and sentenced to a period of incarceration, the
Commonwealth, pursuant to G. L. c. 123A, § 12, would not be
                                                                 15


    Conclusion.   For the reasons given, we remand the case to

the county court for entry of a judgment allowing the

defendant's petition pursuant to G. L. c. 211, § 3, and

directing the entry of a judgment in the Superior Court

dismissing the Commonwealth's petition for commitment pursuant

to G. L. c. 123A, § 12.

                                   So ordered.




barred from filing a new SDP petition against him prior to his
release from incarceration.
