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SJC-11483

                COMMONWEALTH   vs.   JOSE A. GUZMAN.



         Suffolk.     February 4, 2014. - August 25, 2014.

 Present:   Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly,
                            & Lenk, JJ.1


Sex Offender. Global Positioning System Device. Constitutional
     Law, Sentence. Due Process of Law, Sentence. Practice,
     Criminal, Sentence, Probation.



     Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on February 7, 2013.

     The case was reported by Lenk, J.


     Thomas E. Bocian, Assistant Attorney General (Timothy J.
Wyse, Assistant Attorney General, with him) for the
Commonwealth.
     Ryan M. Schiff, Committee for Public Counsel Services, for
the defendant.


     LENK, J.   In the case before us, a Superior Court judge

declined to include global positioning system (GPS) monitoring

as a condition of the probationary portion of the sentence she

     1
       Chief Justice Ireland participated in the deliberation on
this case prior to his retirement.
                                                                    2


imposed following the defendant's pleas of guilty to several

offenses.   One of those offenses was the dissemination of visual

material depicting a child in a state of nudity or sexual

conduct, one of the "sex offense[s] involving a child"

enumerated in G. L. c. 265, § 47, that requires a defendant

convicted of such an offense to be subject to GPS monitoring as

a condition of any term of probation, during "the length of his

probation for any such offense."    We are called upon to decide

whether the imposition of GPS monitoring in such circumstances

is mandatory and, if so, whether such statutory mandate either

constitutes an unreasonable search and seizure pursuant to the

Fourth Amendment to the United States Constitution and art. 14

of the Massachusetts Declaration of Rights, or violates

substantive and procedural due process pursuant to the

Fourteenth Amendment to the United States Constitution and arts.

1, 10, 11, and 12 of the Massachusetts Declaration of Rights.

    It is plain that G. L. c. 265, § 47, affords a sentencing

judge no discretion whether to impose GPS monitoring on a

defendant sentenced, as here, to a probationary term for an

enumerated offense.   Although, given the inadequate record

before us, we do not reach the defendant's Fourth Amendment

claim, we conclude that G. L. c. 265, § 47, does not violate the

defendant's right to due process.    Because the statute applied

to the defendant in the circumstances, and because there was no
                                                                     3


constitutional bar to its application, the failure to include

GPS monitoring as a condition of the defendant's probation was

error.2

     1.   Background.   On August 15, 2011, a Suffolk County grand

jury issued two indictments charging dissemination or possession

of obscene matter, G. L. c. 272, § 29; two indictments charging

dissemination of visual material depicting a child in a state of

nudity or sexual conduct, G. L. c. 272, § 29B, a predicate

offense under G. L. c. 265, § 47; and one indictment charging

purchase or possession of visual material depicting a child

involved in sexual conduct, G. L. c. 272, § 29C.    The defendant,

who had no previous convictions of a sex offense, had acquired

child pornography through LimeWire, an Internet-based file


     2
       On December 9, 2013, approximately one year after she
initially sentenced the defendant, and after she had denied the
Commonwealth's subsequent motion that global positioning system
(GPS) monitoring be imposed, the sentencing judge added GPS
monitoring as a condition of the defendant's probation, and
reduced the term of his probationary period from five years to
two years. The appellate attorneys did not become aware of this
modification until after the case had been briefed and argued;
on March 20, 2014, the Commonwealth notified this court of the
modified terms of the defendant's probation.

     Although the Commonwealth's appeal is now moot, "we
exercise our discretion[, as both parties request we do,] to
hear the merits of this case because the issue is of significant
public interest, fully briefed by the parties, and very likely
to arise again in similar circumstances, yet evade review." See
Commonwealth v. Hanson H., 464 Mass. 807, 808 n.2 (2013), citing
Commonwealth v. Cory, 454 Mass. 559, 560 n.3 (2009) (deciding
whether G. L. c. 265, § 47, applies to juveniles although
juvenile defendant's case was moot).
                                                                   4


sharing system.   The allegation that the defendant engaged in

distribution stemmed from the fact that the defendant's use of

LimeWire's default settings3 permitted other users to access his

files.

     In conjunction with a proposed plea agreement, the

Commonwealth submitted a sentencing memorandum proposing that

the defendant be sentenced to from four to five years in State

prison followed by ten years of probation.4   After conducting two

lobby conferences and reviewing an expert forensic evaluation of

the materials found on the defendant's computer, the judge

convened a plea and sentencing hearing on December 10, 2012.

During the defendant's plea colloquy, the judge and both counsel

discussed whether the defendant would be required to wear a GPS

device as one of the conditions of his probation.   A member of

the court staff informed the judge that the imposition of GPS

monitoring as a condition of probation was discretionary.    The

judge then sentenced the defendant to a one-year term of

incarceration for his convictions under G. L. c. 272, §§ 29 and


     3
       LimeWire's default settings involve the creation of a
"Shared" folder on a user's computer. Any file placed in the
"Shared" folder is automatically available to any other LimeWire
user, and, also automatically, any file downloaded through
LimeWire is saved in the "Shared" folder. See United States v.
Lewis, 554 F.3d 208, 211 (1st Cir.), cert. denied, 556 U.S. 1276
(2009).
     4
       It did not suggest that GPS monitoring be a condition of
the defendant's probation.
                                                                      5


29C, and to a probationary period of five years for his

convictions under G. L. c. 272, §§ 29 and 29B.     She declined to

require that the defendant wear a GPS device as a condition of

probation.

     Three days later, the Commonwealth sought and was granted a

further hearing, at which it argued that, pursuant to G. L.

c. 265, § 47, GPS monitoring was a required condition of

probation for the offense of dissemination of visual material

depicting a child in a state of nudity or sexual conduct to

which the defendant had pleaded guilty.    The judge again

declined to impose GPS monitoring.5   In so doing, she noted that

the statute was "problematic" for its failure to distinguish

between contact sex offenders and noncontact offenders, and

explained that "dealing with this case individually" had led her

to conclude that GPS monitoring was unnecessary.     Several months

later, the Commonwealth filed a petition for relief in the

county court, pursuant to G. L. c. 211, § 3, requesting that the

single justice vacate the defendant's sentence and remand for

further proceedings in accordance with G. L. c. 265, § 47.6    The


     5
       The judge also indicated that, if the Commonwealth
appealed and was successful, she would permit the defendant to
withdraw his guilty plea. See Mass. R. Crim. P. 12 (c) (2), as
appearing in 442 Mass. 1511 (2004).
     6
       One month previously, the Commonwealth had filed a notice
of appeal in the Appeals Court. Proceedings in that case have
been stayed in light of the instant proceedings.
                                                                           6


defendant opposed the petition, arguing that GPS monitoring

would violate his right against unreasonable searches and

seizures and his right to due process under both the State and

Federal Constitutions.        The single justice reserved and reported

the case to the full court.

    2.   Discussion.     a.    Requirements under G. L. c. 265, § 47.

The parties dispute whether G. L. c. 265, § 47, mandates GPS

monitoring as a condition of the defendant's probation.       The

Commonwealth contends that, where a defendant is convicted of an

enumerated offense and subsequently sentenced to a term of

probation, the sentencing judge has no discretion to decline to

impose GPS monitoring as a condition of that probation.        The

defendant maintains, to the contrary, that the judge is

permitted to determine on a case-by-case basis whether GPS

monitoring is appropriate given a defendant's risk of reoffense.

    To determine whether G. L. c. 265, § 47, affords a

sentencing judge any discretion concerning the imposition of GPS

monitoring as a term of probation for certain predicate

offenses, we begin with the plain language of the statute.           See

Commonwealth v. Hanson H., 464 Mass. 807, 810 (2013), quoting

Commonwealth v. Raposo, 453 Mass. 739, 743 (2009).       Ordinarily,

we will "not look beyond the words of the statute where the

language is plain and unambiguous," State Bd. of Retirement v.

Boston Retirement Bd., 391 Mass. 92, 94 (1984), nor will we add
                                                                    7


words to the statute that the Legislature did not see fit to

include.   Commissioner of Correction v. Superior Court Dep't of

the Trial Court for the County of Worcester, 446 Mass. 123, 126

(2006).

    General Laws c. 265, 47, provides, in relevant part:

         "Any person who is placed on probation for any offense
    listed within the definition of 'sex offense,' a 'sex
    offense involving a child' or a 'sexually violent offense,'
    as defined in [G. L. c. 6, § 178C,] shall, as a requirement
    of any term of probation, wear a global positioning system
    device . . . at all times for the length of his probation
    for any such offense."

In turn, G. L. c. 6, § 178C, defines the terms "[s]ex offense"

and "[s]ex offense involving a child" to include the

dissemination of visual material depicting a child in a state of

nudity or sexual conduct, as set forth in G. L. c. 272, § 29B.

    Because "[t]he word 'shall' is ordinarily interpreted as

having a mandatory or imperative obligation," Hashimi v. Kalil,

388 Mass. 607, 609 (1983), we have determined that the GPS

requirement of G. L. c. 265, § 47, applies to any defendant who

has been convicted of a predicate offense and sentenced to a

term of probation.   See Commonwealth v. Canadyan, 458 Mass. 574,

575 n.2 (2010) ("Having been placed on probation for a 'sex

offense,' the defendant was required to wear a [GPS device] as a

condition of his probation"); Commonwealth v. Cory, 454 Mass.

559, 569 (2009) (GPS requirement of G. L. c. 265, § 47, "applies

to every person who is convicted of [predicate] crimes and
                                                                    8


receives a probationary term as part of the criminal

proceeding's disposition").   Thus, we conclude that G. L.

c. 265, § 47, affords judges no discretion to decide whether GPS

monitoring should apply in any particular set of circumstances;

where a defendant is convicted of a qualifying offense and is

sentenced to a term of probation, the sentencing judge must

impose GPS monitoring as a condition of that probation.7

     b.   Constitutional claims.   We turn to the defendant's

constitutional arguments.   The defendant contends that the

imposition of GPS monitoring would violate his right to due

process under both the Federal and State Constitutions.

Specifically, he objects to the determination that G. L. c. 265,

§ 47, affords a sentencing judge no discretion to decide whether

GPS monitoring ought to be imposed on an individual defendant,

including those who have committed only noncontact offenses.

Because the Legislature may establish, within constitutional

limits, mandatory minimum sentences for certain predicate

offenses, and because G. L. c. 265, § 47, constitutes no more

than such a sentence, we conclude that the imposition of GPS

monitoring on the defendant would not offend due process.     The


     7
       As stated, the defendant pleaded guilty to a qualifying
offense under G. L. c. 6, § 178C, namely, the dissemination of
visual material depicting a child in a state of nudity or sexual
conduct, and was sentenced to a probationary term of five years
for that offense and two others. He therefore falls within the
ambit of G. L. c. 265, § 47.
                                                                     9


defendant also maintains that GPS monitoring would encroach upon

his Fourth Amendment right to be free of unreasonable searches

and seizures.   The record here, however, is too sparse to permit

an adequate assessment of the defendant's Fourth Amendment

claim, and we accordingly decline to reach it.8

     i.   Due process.   "A probation condition is enforceable,

even if it infringes on a defendant's ability to exercise

constitutionally protected rights, so long as the condition is

'reasonably related' to the goals of sentencing and probation."

Commonwealth v. Lapointe, 435 Mass. 455, 459 (2001), quoting

Commonwealth v. Pike, 428 Mass. 393, 403 (1998).    See

Commonwealth v. Goodwin, 458 Mass. 11, 17 (2010).    The defendant

urges that we employ this "reasonably related" test to assess

whether GPS monitoring constitutionally may be imposed on all

probationers convicted of predicate offenses. Doing so, he

contends, would compel the conclusion that G. L. c. 265, § 47,

offends due process as applied to defendants convicted, as he

was, of only noncontact sex offenses.



     8
       The defendant does not challenge the mandatory
requirements of G. L. c. 265, § 47, under either the Eighth
Amendment to the United States Constitution or art. 26 of the
Massachusetts Declaration of Rights, and the record here would
not permit a determination of that issue. Accordingly, we do
not consider whether the mandatory imposition of GPS monitoring
could in some circumstances constitute a punishment
"disproportionate to the magnitude of the crime" in question.
See Commonwealth v. O'Neal, 369 Mass. 242, 247-248 (1975).
                                                                   10


    The "reasonably related" test, however, is inapplicable

here.   To date, we have used that test only to analyze the

validity of conditions of probation that are imposed by a

sentencing judge in his or her discretion.   See, e.g.,

Commonwealth v. Rousseau, 465 Mass. 372, 389 (2013) ("In

determining a sentence, a judge is authorized . . . to impose

any conditions that the judge deems proper"); Commonwealth v.

Lapointe, supra at 459, quoting Commonwealth v. Goodwin, 414

Mass. 88, 92 (1993) ("A judge, in furnishing an appropriate

individualized sentence, may consider 'many factors'. . .");

Commonwealth v. Pike, supra at 402-403 (discussing sentencing

judge's latitude in imposing conditions on probation);

Commonwealth v. Power, 420 Mass. 410, 414 (1995), cert. denied,

516 U.S. 1042 (1996) (noting that "the judge should consider

several goals" in imposing sentence).   We have never applied the

"reasonably related" test to those conditions of probation that

the Legislature has concluded are mandatory.   Instead, where the

Legislature has prescribed particular punishments for a given

offense, we ask only whether that mandatory sentence meets the

rational basis test.   See Commonwealth v. Therriault, 401 Mass.

237, 241-242 (1987) (applying rational basis test to due process

challenge to mandatory minimum sentence); Commonwealth v.

Jackson, 369 Mass. 904, 918 (1976) (legislatively mandated
                                                                     11


punishments subject only to rational basis review and need not

withstand "exacting scrutiny").

    This diminished level of scrutiny is based on our

recognition that, while "[a] judge's latitude in sentencing is

great but not infinite," Commonwealth v. Gomes, 73 Mass. App.

Ct. 857, 859 (2009), the Legislature has broad power to

determine the appropriate punishment for a given offense.      See

Commonwealth v. Jackson, supra at 909 ("Legislature has great

latitude to . . . prescribe penalties to vindicate the

legitimate interests of society"); Harding v. Commonwealth, 283

Mass. 369, 374 (1933) ("It is for the General Court in the main

to establish the maximum terms of sentence for the several

crimes known to the law").   See also Commonwealth v. Alvarez,

413 Mass. 224, 233 (1992); Commonwealth v. O'Neal, 369 Mass.

242, 248 (1975) (Tauro, C.J., concurring); Commonwealth v.

Morrow, 363 Mass. 601, 610-611 (1973).

    We have recognized also that, by establishing mandatory

minimum sentences for particular offenses, the Legislature

curtails the ability of a sentencing judge to determine the

appropriate sentence in a given case.    See Commonwealth v.

Therriault, supra at 239, citing Solem v. Helm, 463 U.S. 277,

290 (1983) ("the Legislature has latitude in determining limits

on the discretion that the trial judges possess in sentencing

convicted criminals").   Since a term of probation constitutes a
                                                                  12


"sentence", see, e.g., Commonwealth v. Power, supra at 414, the

Legislature likewise may restrict a sentencing judge's

discretion to determine the terms of probation.9   See

Commonwealth v. Jackson, supra at 919; Commonwealth v. Leis, 355

Mass. 189, 199 (1969), quoting Williams v. Oklahoma, 358 U.S.

576, 586 (1959) ("Unless the punishment exceeds a constitutional

limit, the task of assigning penalties is for the Legislature").

Indeed, in construing G. L. c. 265, § 47, we have not questioned

the Legislature's ability to establish mandatory conditions of

probation in general or to require GPS monitoring in particular.

See Commonwealth v. Hanson H., 464 Mass. 807, 810-817 (2013);

Commonwealth v. Raposo, 453 Mass. 739, 748 (2009).

     In light of this, we discern no reason to apply the

"reasonably related" test to such legislatively mandated

conditions of probation as the requirement of GPS monitoring in

G. L. c. 265, § 47.   Accordingly, we do not consider whether the

imposition of GPS monitoring as a mandatory condition of

probation for those convicted of certain predicate offenses

pursuant to G. L. c. 265, § 47, is reasonably related to the

     9
       In this regard, the Legislature's ability to limit the
discretion of the sentencing judge does not violate the
separation of powers by permitting the Legislature to usurp the
judicial function of sentencing. See Commonwealth v.
Therriault, 401 Mass. 237, 242 (1987) (imposition of mandatory
minimum sentence did not derogate separation of powers);
Commonwealth v. Jackson, 369 Mass. 904, 920-923 (1976) (there is
no support for proposition that "Legislature cannot limit a
court's probationary powers").
                                                                    13


goals of sentencing and probation.    Instead, we inquire only

whether there is a rational basis to support the Legislature's

determination.    We conclude that there is.

    Permissible legislative objectives concerning criminal

sentencing include deterrence, isolation and incapacitation,

retribution and moral reinforcement, as well as reformation and

rehabilitation.    See Cepulonis v. Commonwealth, 384 Mass. 495,

499 (1981), citing Commonwealth v. O'Neal, supra at 251 & n.11.

The provisions of G. L. c. 265, § 47, reasonably can be viewed

as serving many, if not all, of these goals.    We have noted the

danger of recidivism posed by sex offenders.   See, e.g.,

Commonwealth v. Knapp, 441 Mass. 157, 159 (2004).   The

Legislature permissibly has determined that the risk of being

subjected to GPS monitoring might deter future or repeat

offenders.   See Commonwealth v. Cory, 454 Mass. 559, 571 (2009)

(penal nature of GPS monitoring promotes deterrence).     The

Legislature similarly was free to conclude that enabling police

to track the movements of all convicted sex offenders would

promote the security and well-being of the general public.       See

Doe, Sex Offender Registry Bd. No. 8725 v. Sex Offender Registry

Board, 450 Mass. 780, 789-790 (2008).    Within constitutional

limitations, the Legislature may establish harsh punishments for

particular offenses in order to discourage reoffense and promote

rehabilitation.   See Commonwealth v. Jackson, supra at 912-913
                                                                     14


(Legislature had not "exceeded its prerogative" in imposing

"harsh, inflexible sentence").   "The present statute,"

therefore, "is obviously an attempt to deter through a

nondiscretionary penalty."   Id. at 912.

    We observed in Commonwealth v. Cory, supra at 572, and note

again today, that "[t]he sanction [of GPS monitoring] appears

excessive . . . to the extent that it applies without exception

to convicted sex offenders sentenced to a probationary term,

regardless of any individualized determination of their

dangerousness or risk of reoffense."     At least for purposes of

due process analysis, however, this is "a debate that has

already been settled on the floor of the Legislature."

Commonwealth v. Therriault, supra at 242.     In promulgating G. L.

c. 265, § 47, the Legislature saw fit to impose GPS monitoring

as a condition of probation even for those sex offenders

convicted of noncontact offenses.    See Luk v. Commonwealth, 421

Mass. 415, 429 (1995) (it is for Legislature to determine best

means by which to address issues implicating public safety).        We

cannot say that the Legislature's determination is without

rational basis.

    ii.   Search and seizure.    We generally decline "to consider

constitutional issues for the first time on appeal in order to

avoid an unnecessary constitutional decision."     Beeler v.

Downey, 387 Mass. 609, 613 n.4 (1982).     See Commonwealth v.
                                                                  15


Raposo, supra at 743.   This is particularly so where "the record

accompanying [constitutional claims] is lacking . . . in

providing a basis for their intelligent resolution."   Gagnon,

petitioner, 416 Mass. 775, 780 (1994), citing Commissioner of

Correction v. McCabe, 410 Mass. 847, 850 n.7 (1991).

    While the defendant contends that the imposition of GPS

monitoring constitutes an unreasonable search or seizure of his

person, questions of reasonableness are necessarily fact-

dependent.   See Scott v. Harris, 550 U.S. 372, 383 (2007) (in

Fourth Amendment context, court must "slosh [its] way through

the factbound morass of 'reasonableness'"); Commonwealth v.

Krisco Corp., 421 Mass. 37, 42 (1995) (reasonableness inquiry in

Fourth Amendment context "is highly dependent on the particular

facts involved").   Here, neither the Commonwealth nor the

defendant presented evidence concerning the details of the GPS

monitoring to which the defendant is subject.   Absent such a

record, we are unable to address the defendant's Fourth

Amendment claims.   See Doe v. Doe, 378 Mass. 202, 203 (1979)

("Where constitutional questions and matters of asserted public

policy are raised, it is preferable to pass on the issues in

light of a fully developed trial record rather than, as here, in

the abstract"); Tardiff, petitioner, 328 Mass. 265, 267 (1952),

quoting Atlantic Maritime Co. v. Gloucester, 228 Mass. 519, 522
                                                                 16


(1917) (fact-finding duty "is not an appropriate function of a

court of last resort").

    3.   Conclusion.   Where the defendant was sentenced to a

probationary term for a predicate offense pursuant to G. L.

c. 265, § 7, the sentencing judge was mandated to impose GPS

monitoring as a condition of probation.   Because the

Commonwealth's appeal is now moot, however, see note 1, supra,

we remand the matter to the single justice for entry of a

judgment dismissing the Commonwealth's petition pursuant to

G. L. c. 211, § 3.

                                    So ordered.
