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15-P-964                                            Appeals Court

                         IN THE MATTER OF E.C.


                            No. 15-P-964.

           Plymouth.      May 11, 2016. - August 3, 2016.

              Present:   Grainger, Meade, & Hanlon, JJ.


Incompetent Person, Commitment.    Practice, Civil, Civil
     commitment.



     Petition for civil commitment filed in the Brockton
Division of the District Court Department on March 4, 2013.

     The case was heard by Beverly J. Cannone, J., and a motion
for reconsideration was also heard by her.


     Edward J. O'Donnell for the petitioner.
     Joseph A. Robinson, Committee for Public Counsel Services,
for the respondent.


    MEADE, J.    Following a hearing pursuant to G. L. c. 123,

§ 16(b), a judge of the Dorchester Division of the Boston

Municipal Court Department (BMC) found E.C. incompetent to stand

trial and committed him to Bridgewater State Hospital (BSH) for

six months.   After the § 16(b) commitment expired and the
                                                                   2


underlying criminal charges against E.C. were dismissed, a judge

of the Brockton Division of the District Court Department

(Brockton District Court) denied BSH's timely petition to extend

the commitment under G. L. c. 123, § 16(c).   The judge also

denied BSH's motion to amend that petition to one pursuant to

G. L. c. 123, §§ 7 and 8, seeking continued civil commitment of

a mentally ill person whose discharge from BSH would create a

likelihood of serious harm.   The Appellate Division of the

District Court affirmed.   On appeal, BSH claims error in the

denial of the original and amended petitions.   We reverse.

     Background.   The material facts are not in dispute.     On May

30, 2012, E.C. was charged in the BMC with malicious destruction

of property having a value greater than $250 in violation of

G. L. c. 266, § 127.   Following a hearing pursuant to G. L.

c. 123, § 15(a), a judge ordered E.C. hospitalized pursuant to

G. L. c. 123, § 15(b), in order to evaluate his competency to

stand trial.   Based on the resulting § 15(b) report, the judge

on August 7, 2012, found E.C. incompetent to stand trial.

Thereafter, pursuant to BSH's G. L. c. 123, § 16(b), petition,

E.C. was committed to BSH for six months.1


     1
       General Laws c. 123, § 16(b), as amended by St. 1992,
c. 286, § 190, states in pertinent part:

     "During the period of observation of a person believed to
     be incompetent to stand trial or within sixty days after a
     person is found to be incompetent to stand trial or not
                                                                   3


     As the expiration of the G. L. c. 123, § 16(b), commitment

drew near, on March 4, 2013, BSH petitioned in Brockton District

Court,2 pursuant to G. L. c. 123, § 16(c), for E.C.'s further

commitment.   On March 7, 2013, when the initial six-month

§ 16(b) commitment expired,3 but prior to the hearing on BSH's

§ 16(c) petition, the criminal charge pending in the BMC against

E.C. was dismissed over the Commonwealth's objection.   Shortly

after the dismissal, BSH filed a motion in the Brockton District


     guilty of any crime by reason of mental illness or other
     mental defect, the district attorney, the superintendent of
     a facility or the medical director of the Bridgewater state
     hospital may petition the court having jurisdiction of the
     criminal case for the commitment of the person to a
     facility or to the Bridgewater state hospital. However,
     the petition for the commitment of an untried defendant
     shall be heard only if the defendant is found incompetent
     to stand trial, or if the criminal charges are dismissed
     after commitment. If the court makes the findings required
     by paragraph (a) of section eight it shall order the person
     committed to a facility; if the court makes the findings
     required by paragraph (b) of section eight, it shall order
     the commitment of the person to the Bridgewater state
     hospital; otherwise the petition shall be dismissed and the
     person discharged. An order of commitment under the
     provisions of this paragraph shall be valid for six
     months."
     2
       The Brockton District Court has been designated as the
site for all District Court civil commitment proceedings
pursuant to G. L. c. 123. See G. L. c. 123, § 5; G. L. c. 218,
§ 43A.
     3
       The Appellate Division determined that the period ended on
or around March 4, 2013, based on a docket entry explaining that
E.C. had been found incompetent and would not be brought to
court as scheduled on September 6, 2012. From this entry, the
Appellate Division presumed the six-month commitment would have
begun by that September 6 date at the latest and that the period
would have therefore concluded by March 4.
                                                                   4


Court to amend its § 16(c) petition to one pursuant to G. L.

c. 123, §§ 7 and 8.   On March 20, 2013, the judge denied the

motion to amend and determined that, following the dismissal of

the criminal case, the § 16(c) petition could "no longer serve

as a valid basis to detain [E.C.]."   The judge also concluded

that after the criminal charge was dismissed, BSH lacked a valid

basis to retain E.C. and therefore could not pursue his

commitment under §§ 7 and 8 because he was no longer a patient.

The judge denied BSH's subsequent motion for reconsideration.

As a result, E.C. was immediately released from BSH.4

     BSH appealed the judge's orders to the Appellate Division

of the District Court, which affirmed.   In affirming the judge's

decisions, the Appellate Division determined that the dismissal

of the criminal charge against E.C. terminated BSH's authority

to proceed against him under G. L. c. 123, § 16(c), because the

"issue of E.C.'s competenc[y] was no longer before the court

once the criminal case was dismissed."

     The Appellate Division relied on G. L. c. 123, § 16(b),

which provides for continued commitment of a defendant following

the dismissal of criminal charges, and determined that G. L.

     4
       We agree with the parties' assessment that, although E.C.
has been released, this case is not moot because the question it
presents falls within an exception to the mootness doctrine
because it is "capable of repetition, yet evading review."
Karchmar v. Worcester, 364 Mass. 124, 136 (1973), quoting from
Southern Pac. Terminal Co. v. Interstate Commerce Commn., 219
U.S. 498, 515 (1911).
                                                                   5


c. 123, § 16(c), which contains no such reference, does not

similarly apply.   Therefore, the Appellate Division determined

that a pending criminal charge was a prerequisite for continued

retention, and applied that reasoning to § 16(c) to conclude

that BSH could not pursue further commitment following the

dismissal of E.C.'s charge.   As BSH had moved to amend its

petition from one under § 16(c) to one under G. L. c. 123, §§ 7

and 8, the Appellate Division suggested that BSH recognized this

prerequisite.   In the end, the Appellate Division affirmed,

reasoning that once the § 16(b) commitment period had run, BSH

lacked the authority to detain E.C. because he was no longer a

"patient" and, therefore, could not be subject to a petition

pursuant to §§ 7 and 8.

    In addition, the Appellate Division held there was no

support in the record for BSH's argument that the BMC judge

expected that E.C. would remain at BSH pending the hearing on

the G. L. c. 123, § 16(c), petition.   Although the Appellate

Division acknowledged the logistical issues BSH faced in being

informed of the status of criminal charges where BSH itself is

not a party to those proceedings, the court nevertheless agreed

that the statutory framework did not allow for E.C.'s continuing

commitment under § 16(c) or §§ 7 and 8.   This appeal followed.

    Discussion.    On appeal, BSH claims the denial of its

petition to commit E.C. was based on an erroneous interpretation
                                                                    6


of G. L. c. 123, § 16(c).   We agree.   The proper interpretation

of § 16(c) is a question of law, which we review de novo.    See

Protective Life Ins. Co. v. Sullivan, 425 Mass. 615, 618 (1997).

"It is a fundamental principle of statutory construction that

'statutory language should be given effect consistent with its

plain meaning and in light of the aim of the Legislature unless

to do so would achieve an illogical result.'"    Commonwealth v.

Hatch, 438 Mass. 618, 622 (2003), quoting from Sullivan v.

Brookline, 435 Mass. 353, 360 (2001).   Where the text is unclear

or ambiguous, "a statute must be interpreted according to the

intent of the Legislature ascertained from all its words

construed by the ordinary and approved usage of the language,

considered in connection with the cause of its enactment, the

mischief or imperfection to be remedied and the main object to

be accomplished, to the end that the purpose of its framers may

be effectuated."   Telesetsky v. Wight, 395 Mass. 868, 872

(1985), quoting from Commonwealth v. Galvin, 388 Mass. 326, 328

(1983).   Under these principles of statutory construction, we

evaluate the reach and limits of § 16(c) based on its plain

language and in the context of the statutory framework.

    To begin, G. L. c. 123, § 6(a), inserted by St. 1986,

c. 599, § 38, states that "[n]o person shall be retained at a

facility or at the Bridgewater state hospital except . . .

during the pendency of a petition for commitment" (emphasis
                                                                    7


supplied).    As § 6(a) unambiguously authorizes retention of an

individual while a commitment petition is pending, and neither

makes reference to nor requires the condition of pending

criminal charges, BSH explicitly retained authority over E.C.

where it filed the G. L. c. 123, § 16(c), petition prior to or

concurrently with the expiration of the G. L. c. 123, § 16(b),

commitment.    Pursuant to § 6, the subsequent dismissal of the

criminal charge against E.C. did nothing to alter the validity

of BSH's pending commitment petition or its authority to retain

E.C while the petition was pending.    See Commonwealth v. Hatch,

supra.

    Furthermore, the underlying purpose of G. L. c. 123, § 16,

supports BSH's claim that it retained the appropriate authority

over E.C. to proceed on the § 16(c) petition for his commitment.

However, the Appellate Division determined that because § 16(c),

in contrast with § 16(b), contains no reference to the effect

dismissal of criminal charges has on commitment, it therefore

does not provide for continuing commitment after that dismissal.

We disagree.    Section 16(c), inserted by St. 1986, c. 599, § 38,

provides in relevant part:

    "After the expiration of a commitment under paragraph (b)
    of this section, a person may be committed for additional
    one year periods under the provisions of sections seven and
    eight of this chapter, but no untried defendant shall be so
    committed unless in addition to the findings required by
    sections seven and eight the court also finds said
    defendant is incompetent to stand trial. If the person is
                                                                   8


     not found incompetent, the court shall notify the court
     with jurisdiction of the criminal charges, which court
     shall thereupon order the defendant returned to its custody
     for the resumption of criminal proceedings."

Although we do not read language from § 16(b) into a provision

from which it is absent, see Commonwealth v. Dodge, 428 Mass.

860, 865 (1999) ("[w]here the Legislature has employed specific

language in one [section of an act], but not in another, the

language should not be implied where it is not present"

[quotation omitted]), the statute nonetheless "should be read as

a whole to produce an internal consistency."   Telesetsky v.

Wight, supra at 873.

     Moreover, because "we must read the statute in a way to

give it a sensible meaning," Beeler v. Downey, 387 Mass. 609,

616 (1982), we do not read G. L. c. 123, § 16(c), to require a

patient's immediate release after dismissal of underlying

criminal charges where § 16 generally acknowledges BSH's

continuing authority and ability to petition for further

commitment after the dismissal.   Specifically, G. L. c. 123,

§ 16(b), permits a petition to commit an untried defendant for

six months "only if the defendant is found incompetent to stand

trial, or if the criminal charges are dismissed after

commitment."5   If dismissal of criminal charges immediately


     5
       E.C. suggests that G. L. c. 123, § 16(b), should be read
as follows: "[T]he petition for the commitment of an untried
defendant shall be heard only if the defendant is found
                                                                   9


terminated the commitment order and BSH's authority over a

patient under § 16(c) as a matter of law, the § 16(b) reference

to pursuing further commitment of an untried defendant following

the dismissal would be rendered meaningless, particularly

because § 16(c) extends the § 16(b) six-month commitment by

additional one-year periods based on the same considerations.6

See Bynes v. School Comm. of Boston, 411 Mass. 264, 267-268

(1991).   Therefore, the dismissal of criminal charges does not

immediately terminate BSH's authority over a patient.

     Other subsections of G. L. c. 123, § 16, lend support to

our conclusion that the dismissal of criminal charges neither

requires immediate discharge of a patient nor terminates BSH's

ability to petition for further commitment after the dismissal.



incompetent to stand trial, or [if found competent,] the
criminal charges are dismissed after commitment." He claims
that because only the district attorney will know when criminal
charges will be dismissed after a commitment hearing, only the
district attorney, not BSH, has the authority to file a petition
for continued commitment after charges are dismissed.
Therefore, he claims, § 16(b) is inapplicable to our
interpretation of § 16(c). This interpretation reads a
limitation into the statute that does not exist. This we cannot
do. Rather, "where two or more statutes relate to the same
subject matter, they should be construed together so as to
constitute a harmonious whole consistent with the legislative
purpose." Board of Educ. v. Assessor of Worcester, 368 Mass.
511, 513-514 (1975).
     6
       Both G. L. c. 123, §§ 7(b) and 8(b), to which G. L.
c. 123, § 16(b) and (c), refer, provide for the commitment to
BSH of a mentally ill male patient where the failure to retain
an individual in "strict security" or "strict custody" would
pose a "likelihood of serious harm."
                                                                  10


For example, the first sentence of § 16(e), inserted by St.

1986, c. 599, § 38, provides that "[a]ny person committed to a

facility under the provisions of this section may be restricted

in his movements to the buildings and grounds of the facility at

which he is committed by the court which ordered the

commitment."   However, the concluding sentence of § 16(e)

states:   "This paragraph shall not apply to persons originally

committed after a finding of incompetenc[y] to stand trial whose

criminal charges have been dismissed."   Thus, the Legislature

clearly contemplated circumstances where a patient's commitment

could continue after the dismissal of criminal charges.

     Similarly, G. L. c. 123, § 16(f),7 does not call for a

patient's immediate discharge following the dismissal of


     7
       Section 16(f) of G. L. c. 123, inserted by St. 1986,
c. 599, § 38, states:

     "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 the 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 sentence potential sentence. Where applicable, the
     provisions of sections one hundred and twenty-nine, one
     hundred and twenty-nine A, one hundred and twenty-nine B,
     and one hundred and twenty-nine C of chapter one hundred
     and twenty-seven shall be applied to reduce such period of
     time. On the final date of such period, the court shall
     dismiss the criminal charges against such person, or the
                                                                  11


criminal charges.   To the contrary, § 16(f) supports the

interpretation that, under G. L. c. 123, § 16(c), BSH retained

authority over E.C. after the dismissal.   Although the Appellate

Division concluded that § 16(f) contains language that suggests

that the existence of a criminal case is a statutory condition

precedent to commit a patient under § 16, we disagree because

the pendency of criminal charges is separate from the procedure

for discharging a patient.   Indeed, § 16(f) provides that the

court must send a notice to the Department of Correction when a

person is found to be incompetent to stand trial, in order to

establish the date on which the charges must be dismissed.

Section 16(f) does not require the immediate discharge of a

patient or termination of a pending petition for further

commitment.   If the Legislature intended a § 16 commitment to

terminate upon dismissal of the underlying criminal charges, it

presumably would have inserted in § 16(f) the same clear

instruction to release that is found in G. L. c. 123, § 18(c).8

In contrast, § 16(c) provides for one-year, renewable periods of

commitment based on incompetency to stand trial and the findings


     court in the interest of justice may dismiss the criminal
     charges against such person prior to the expiration of such
     period."
     8
       Section 18(c) of G. L. c. 123 provides the commitment
sentence for mentally ill prisoners, calculates the appropriate
period of hospitalization based on the prisoner's sentence, and
permits discharge on that specified calculated date. Section 16
makes no such reference to an immediate discharge.
                                                                   12


required by G. L. c. 123, §§ 7 and 8, not the underlying

criminal charges and accompanying sentences.

    Furthermore, nothing in G. L. c. 123, § 16(f), requires

immediate discharge of a patient or terminates BSH's authority

after dismissal of criminal charges, nor do we read such a

requirement into that section of the statute.   See Commonwealth

v. Dodge, 428 Mass. at 865.   Despite the absence of any explicit

reference to dismissal of criminal charges in G. L. c. 123,

§ 16(c), the relevant provisions of § 16, read together,

indicate that dismissal does not automatically terminate the

commitment order or BSH's authority.

    In addition, the Appellate Division erred by holding that

E.C. was no longer a patient once his criminal charge had been

dismissed.   The Appellate Division's view of who qualified as a

patient was too narrow.   Pursuant to G. L. c. 123, § 1, as

amended through St. 1989, c. 117, § 3, a "patient" is defined as

"any person with whom a licensed mental health professional has

established a mental health professional-patient relationship."

After E.C.'s relationship with the licensed mental health

professionals had commenced, the dismissal of the criminal

charge underlying his commitment did nothing to alter his

patient relationship with BSH.

    As discussed above, the dismissal of the criminal charge

did not automatically discharge E.C., nor did it terminate BSH's
                                                                  13


authority over E.C. or its ability to petition for his

continuing commitment.   E.C.'s argument, and the Appellate

Division's conclusion, that he was no longer a "patient" under

G. L. c. 123 is contrary to the plain meaning of § 1.9    See

Commonwealth v. Ray, 435 Mass. 249, 252 (2001) ("when the text

of a statute is clear and unambiguous, it must be construed in

accordance with its plain meaning").   Because the dismissal of

the criminal charge did not require E.C.'s immediate discharge,

BSH retained authority over E.C. as a "patient," and the

Appellate Division erred in concluding otherwise.

     Finally, although the Appellate Division held that E.C.'s

competency was no longer at issue once the charge had been

dismissed, the G. L. c. 123, § 16(c), petition was an

appropriate vehicle to seek his continued confinement.     Because

commitment under § 16(c) explicitly requires the same findings

required by G. L. c. 123, §§ 7 and 8, there is no substantive

distinction between the standards governing an extended

commitment under § 16(c) and the commitment of persons under

§§ 7 and 8.   Thus, it was not necessary for BSH to amend its



     9
       To the extent the Appellate Division's case law defines
"patient" otherwise, we are not bound by it. See Matter of
C.B., 2013 Mass. App. Div. 42. In any event, the narrow
definition of "patient" accepted in C.B. contemplated the
commitment of an individual who, unlike E.C., was found
competent to stand trial prior to BSH's petition under G. L.
c. 123, § 16(c).
                                                                  14


petition to one pursuant to §§ 7 and 8, and we do not reach the

issue whether it was error to deny the motion to amend.

    Conclusion.   The decision and order of the Appellate

Division is reversed.   A new order shall enter modifying the

Brockton District Court order to provide that BSH is authorized

to seek additional commitment pursuant to G. L. c. 123, § 16(c).

                                    So ordered.
