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SJC-12084

               COMMONWEALTH   vs.   DONALD CALVAIRE.



       Suffolk.      October 6, 2016. - January 11, 2017.

 Present:   Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, &
                             Budd, JJ.


Incompetent Person, Criminal charges. Practice, Criminal,
     Sentence, Dismissal, Competency to stand trial.
     Constitutional Law, Equal protection of laws. Due Process
     of Law, Substantive rights.



     Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on January 29, 2016.

    The case was reported by Cordy, J.


     M. Barusch, Committee for Public Counsel Services (Beth L.
Eisenberg also present) for the defendant.
     Darcy A. Jordan, Assistant District Attorney, for the
Commonwealth.


    BUDD, J.   Under G. L. c. 123, § 16 (f) (§ 16 [f]), a

defendant who is found incompetent to stand trial is entitled to

dismissal of the criminal charges against him or her at the

point corresponding to one-half the maximum sentence the
                                                                       2


defendant could have received if convicted of the most serious

crime with which he or she was charged.      We consider in this

case how to calculate the date of dismissal when the most

serious crime is within the concurrent jurisdiction of both the

Superior Court Department and the District Court or Boston

Municipal Court (BMC) Department, but the case is pending in the

BMC.       We conclude that the basis for the calculation is the

maximum sentence provided for in the statute, regardless of the

court in which the charges are pending at the time of the

calculation.      We also conclude that in this case, pursuant to

§ 16 (f), dismissal of the charge before the computed date may

nevertheless be appropriate in the interest of justice.

       Background.     On July 3, 2012, a woman was stabbed with a

pocket knife at the Ashmont station of the Massachusetts Bay

Transportation Authority in the Dorchester section of Boston.

Two days later, the BMC issued a criminal complaint charging the

defendant, who has a history of mental illness, with assault and

battery by means of a dangerous weapon in violation of G. L.

c. 265, § 15A (b).       He has been in custody ever since, spending

most of that time committed at Bridgewater State Hospital

(Bridgewater).1      Since the complaint issued, the defendant has


       1
       The defendant was first sent     to Bridgewater State Hospital
(Bridgewater) on December 17, 2012,     for a competency evaluation
pursuant to G. L. c. 123, § 15. On      March 6, 2013, he was
transferred from Bridgewater to the     Nashua Street jail. On
                                                                    3


been competent to stand trial only intermittently.2    The

Commonwealth made attempts to proceed to trial in the BMC during

the periods in which the defendant was competent, but each time

the scheduled date approached, the trial was continued or else

the defendant was found to be incompetent.3

     In 2014 and 2015, the defendant moved on three separate

occasions in the BMC to dismiss the charge pursuant to § 16 (f).

Each of the motions was denied.   In January, 2016, the defendant

again sought dismissal of the charge under § 16 (f).    The judge

denied the defendant's motion.4   The defendant subsequently filed

a petition for relief under G. L. c. 211, § 3, in the county


May 17, 2013, he was returned to Bridgewater and has been
civilly committed there ever since, held variously under G. L.
c. 123, § 18 (a), for care and treatment, and G. L. c. 123, § 16
(b) and (c), for civil commitment of a criminal defendant. The
order authorizing the defendant's current commitment expires on
June 13, 2017.
     2
       Based upon the record, the periods that the defendant
apparently was competent to stand trial were from July 5, 2012,
to December 17, 2012, and from March 12, 2013, through March 21,
2014.
     3
       During periods of the defendant's competency, the parties
filed three pretrial conference reports on November 16, 2012,
March 22, 2013, and April 17, 2013, and selected "trial status"
dates and trial dates. The prosecutor further requested a
Haitian Creole interpreter and psychotropic medication for the
defendant in preparation for a scheduled June 5, 2013, trial in
the BMC.
     4
       However, the judge did order a recalculation of the
defendant's maximum dismissal date, taking into account his
credits for time served. The result was that the defendant's
dismissal date was computed as July 2, 2017, as opposed to his
previously computed dismissal date of May 16, 2018.
                                                                      4


court, seeking dismissal.     A single justice reserved and

reported the case to the full court.

     Discussion.    1.   Dismissal date calculation.   General Laws

c. 123, § 16 (f),5 ensures that a criminal defendant who is

incompetent to stand trial does not face an indefinite pendency

of criminal charges.     Foss v. Commonwealth, 437 Mass. 584, 589

(2002).    To that end, an incompetent defendant's charges must be

dismissed on the day that he would have been eligible for parole

if he had been "convicted of the most serious crime with which

he was charged in court and sentenced to the maximum sentence he

could have received."     G. L. c. 123, § 16 (f).   Under the

statute, parole eligibility "shall be regarded as [available on

the final date of] one half of the maximum . . . potential

sentence."    Id.   Thus, an incompetent defendant's charge must be



     5
         General Laws c. 123, § 16 (f), provides:

          "If a person is found incompetent to stand trial, the
     court shall send notice to the department of correction
     which shall compute the date of expiration of the period of
     time equal to the time of imprisonment which the person
     would have had to serve prior to becoming eligible for
     parole if he had been convicted of the most serious crime
     with which he was charged in court and sentenced to the
     maximum sentence he could have received, if so convicted.
     For purposes of the computation of parole eligibility, the
     minimum sentence shall be regarded as one half of the
     maximum . . . potential sentence. . . . On the final date
     of such period, the court shall dismiss the criminal
     charges against such person, or the court in the interest
     of justice may dismiss the criminal charges against such
     person prior to the expiration of such period."
                                                                   5


dismissed after it has been pending for one-half of the maximum

sentence he or she faces.   Id.

     The defendant argues that the phrase "charged in court" in

§ 16 (f) refers to the forum in which the Commonwealth chooses

to prosecute the case.6   Because the Commonwealth chose to

prosecute his case in the BMC, he reasons, the calculation

should be based upon the maximum sentence for assault and

battery by means of a dangerous weapon in that court (a house of

correction sentence of two and one-half years) rather than the

maximum for that crime in the Superior Court (a ten-year State

prison sentence).7

     This court has previously considered and rejected this

argument.   See Chubbuck v. Commonwealth, 453 Mass. 1018, 1019-

1020 (2009), citing Foss, 437 Mass. at 591 n.10.   In Chubbuck,

we declined to disturb a calculation based on a State prison

sentence despite the fact that the defendant's charges of




     6
       For many crimes, including the conduct at issue here, the
Boston Municipal Court (BMC) or District Court has concurrent
jurisdiction with the Superior Court. G. L. c. 218, § 26.
Charges may be brought by complaint in the BMC (or District
Court), where the maximum sentence regardless of the crime is
two and one-half years in a house of correction, or by
indictment by grand jury in the Superior Court, where longer
sentences in State prison may be imposed.
     7
       The defendant's calculation yields a maximum parole
eligibility date of fifteen months and would thus entitle him to
immediate dismissal of the charge.
                                                                       6


indecent assault and battery and breaking and entering were

pending in District Court.    Chubbuck, supra.

     The defendant claims that his case is distinguishable from

Chubbuck because here there are "objective indicia" that the

Commonwealth planned to prosecute his case in the BMC.8     There is

nothing in the language of the statute suggesting that the § 16

(f) dismissal date calculation requires the Department of

Correction (department) to determine the court department in

which the prosecutor will ultimately choose to proceed.

Further, there is nothing in the statute to suggest that the

calculation is intended to be reliant upon a prosecutor's

decision to indict or that it should vary amongst defendants

charged with the same offense.      "We do not read into the statute

a provision which the Legislature did not see fit to put there,

nor add words that the Legislature had an option to, but chose

not to include."    Commissioner of Correction v. Superior Court

Dep't of the Trial Court for the County of Worcester, 446 Mass.

123, 126 (2006).

     2.    Constitutional claims.    The defendant argues that the

statute violates the Federal and State Constitutions, as well as

his right to a grand jury indictment.9


     8
         See note 3, supra.
     9
       The defendant separately argues that the department's
interpretation of § 16 (f) violates the Americans with
                                                                   7


     He first claims that the unequal treatment of incompetent

and competent defendants violates his right to equal protection

under the law.   The defendant does not expand on this argument,

and in fact, the two categories of defendants are not similarly

situated.   While a competent defendant will either proceed to

trial and face possible conviction or else plead guilty, the

only inevitability for a defendant who is found to be (and

remains) incompetent to stand trial is that his or her charges

will be dismissed.10

     The defendant also argues that § 16 (f) intrudes upon his

fundamental right to liberty; we analyze this argument on

substantive due process grounds.   See Commonwealth v. Weston W.,

455 Mass. 24, 41-42 (2009) (Spina, J., concurring).   We apply

strict scrutiny analysis to determine whether the statute is




Disabilities Act (ADA), 42 U.S.C. § 12132 (2012). We disagree.
Although the defendant claims that he is a qualified disabled
individual and that services provided by the BMC and Bridgewater
are subject to the statute, he advances no argument as to how he
has been denied appropriate services by either entity. See
Williams v. Secretary of the Executive Office of Human Servs.,
414 Mass. 551, 556-558 (1993). All of the statutory protections
for persons suffering from mental illness under G. L. c. 123
remain available to him. "The ADA has no applicability in this
matter." Commonwealth v. Burgess, 450 Mass. 366, 377 n.12
(2008).
     10
       We have held previously, albeit in a different context,
that providing additional procedural protections for incompetent
defendants is constitutional, despite the resulting disparate
treatment of otherwise similarly situated defendants. Burgess,
450 Mass. at 376-377.
                                                                      8


narrowly tailored to achieve a compelling State interest, and

conclude that it is.    See id. at 43-44 (Spina, J., concurring).

     Section 16 (f) serves at least two compelling State

interests:    (1) protecting mentally ill defendants from the

indefinite pendency of criminal charges as a result of their

incompetency to stand trial, see Foss, 437 Mass. at 589; and (2)

protecting the public from potentially dangerous persons.11     The

statute is narrowly tailored to allow the Commonwealth some time

to pursue the legitimate and proper purpose of prosecuting

charged crimes, but not for a period of time longer than is

reasonably necessary to ascertain the defendant's chances of

regaining competency.    As an additional safeguard, § 16 (f)

allows for dismissal of charges even before the maximum parole

eligibility date has been reached "in the interest of justice."

     Finally, the defendant argues that § 16 (f) subjects

incompetent defendants to what amounts to a State prison

sentence without a constitutionally required indictment by a

grand jury.    See Brown v. Commissioner of Correction, 394 Mass.

89, 91-92 (1985).    This argument overlooks the fact that a

determination of incompetency does not automatically lead to

confinement.   Under G. L. c. 123, § 16 (b) and (c), only those

incompetent criminal defendants who are mentally ill and a

     11
        The latter interest is "not diminished when that person
happens to be incompetent to stand trial." Burgess, 450 Mass.
at 376.
                                                                    9


danger to themselves or others are confined at Bridgewater.

Defendants who are incompetent but not dangerous may post bail

like any other defendant.12   In any case, persons who are

otherwise civilly committed (e.g., under G. L. c. 123, §§ 7 and

8) are not serving the equivalent of a criminal sentence.     See

Commonwealth v. Gillis, 448 Mass. 354, 360 (2007).   The

circumstance of an incompetent defendant who is held because he

or she is dangerous is more akin to that of a competent

defendant held for the same reason, except that in the former

case the charges will be dismissed if the defendant remains

incompetent whereas in the latter case the defendant will be

tried and, if found guilty, sentenced.   Compare G. L. c. 123,

§ 16 (b), (c) (commitment for mental illness and dangerousness),

with G. L. c. 276, § 58A (pretrial custody without bail for

dangerousness).



     12
       Persons cannot be committed indefinitely on account of
their incompetency. Foss, 437 Mass. at 589. See Jackson v.
Indiana, 406 U.S. 715, 720 (1972). Section 16 (f) refers only
to the pendency of criminal charges and "does not distinguish
between defendants who have been committed and those who have
not." Foss, supra at 587 n.2. Defendants can be civilly
committed under § 16 (b) or (c), but such commitment is
predicated on a finding that the defendant is mentally ill and
dangerous under §§ 7 and 8. These sections are the same ones
that govern the involuntary civil commitment of noncriminal
defendants. Thus, dismissal of criminal charges pursuant to
§ 16 (f) would not necessarily lead to a person's release from
commitment because the person could be civilly committed under
§§ 7 and 8 if he or she remained mentally ill and dangerous.
See note 14, infra.
                                                                   10


     3.   Dismissal in the interest of justice.   As mentioned

previously, in addition to providing for the calculation of the

dismissal date of charges against an incompetent defendant,

§ 16 (f) contains a "safety valve" that allows a judge to

dismiss charges prior to the calculated parole eligibility date

"in the interest of justice."   Thus, the judge may consider

factors that are not relevant to the statutory computation.      Use

of the safety valve may be warranted in a case where, as the

defendant claims is true here, the defendant's chances of being

restored to competency are slim.   Although the Commonwealth

argues that the defendant may yet regain competency and remain

so at least long enough to stand trial, his most recent

prognosis (March, 2016) appears to indicate otherwise.13    See,

e.g., Commonwealth vs. Guinta, Mass. Superior Ct., No. 2004-

00088 (Norfolk County Mar. 31, 2011) (dismissing incompetent

defendant's charges pursuant to § 16 [f] where it had become



     13
       The defendant has struggled with mental illness since at
least 2003. He has been deemed incompetent for more than half
of the time since the charge was brought in this case.
Bridgewater's March 3, 2016, assessment of the defendant's
chances of being restored to competency in this case was that
they are poor given his "longstanding delusional beliefs," among
other issues. We further note that although § 16 (f) refers
only to the pendency of charges, not commitment, the length of a
defendant's commitment may nevertheless be considered in whether
to dismiss charges in the interest of justice because the
"pendency of criminal charges . . . often . . . significantly
limit[s an] incompetent defendant's access to treatment by more
effective civil means." Foss, 437 Mass. at 589.
                                                                 11


clear over period of years that defendant would never become

competent).

     Conclusion.   For the reasons discussed, the defendant's

petition for relief under G. L. c. 211, § 3, is denied.   The

case is remanded to the BMC for further proceedings consistent

with this opinion.14

                                   So ordered.




     14
       The defendant's civil commitment under § 16 (c) runs
until June 13, 2017. It is not before us whether the dismissal
of charges pursuant to the § 16 (f) safety valve would have an
impact on that commitment, or, if so, whether Bridgewater would
have notice and an opportunity to petition for commitment under
§§ 7 and 8 before his release. The parties are free to litigate
these issues on remand. See Matter of E.C., 89 Mass. App. Ct.
813, further appellate review granted, 476 Mass. 1103 (2016).
