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SJC-12286

                JOSH J., a juvenile   vs.   COMMONWEALTH.



          Suffolk.      October 5, 2017. - January 31, 2018.

        Present:   Gants, C.J., Gaziano, Lowy, Budd, Cypher, &
                              Kafker, JJ.


Bail.  Delinquent Child. Due Process of Law, Pretrial
     detainees. Moot Question.



     Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on January 11, 2017.

     The case was reported by Lowy, J.


     Eliza Lockhart-Jenks, Committee for Public Counsel
Services, for the juvenile.
     Marina Moriarty, Assistant District Attorney, for the
Commonwealth.


     LOWY, J.      This case, here on a reservation and report by a

single justice of the county court in response to the juvenile's

petition under G. L. c. 211, § 3, requires us to consider the

proper application of G. L. c. 276, § 58, and G. L. c. 276,

§ 58B, specifically with regard to the number of days an
                                                                    2


individual may be held without bail after a bail revocation

hearing.   We conclude that where an individual has been released

on bail pursuant to G. L. c. 276, § 58, and there is probable

cause to believe the individual committed a crime while released

on bail, the Commonwealth may seek to revoke bail under either

§ 58 or § 58B.   The judge must then determine whether the

Commonwealth satisfied the requirements of the particular

statute, either § 58 or § 58B, under which it sought to revoke

bail.

    1.     Background and prior proceedings.   On May 6, 2016, a

delinquency complaint issued charging the juvenile with breaking

and entering in the daytime with intent to commit a felony and

larceny over $250.    A judge in the Juvenile Court set the

juvenile's bail at $1,000.    The judge also advised the juvenile,

pursuant to G. L. c. 276, § 58, that the juvenile's bail could

be revoked if he committed a new crime while on release.      The

juvenile posted bail and was released.

    In August, 2016, two delinquency complaints issued against

the juvenile for several new crimes he allegedly committed while

on release on the pending charges, including two counts of

assault and battery on a pregnant victim and one count of

malicious destruction of property valued over $250.    In

November, 2016, based on the new charges, the Commonwealth

sought to revoke the juvenile's bail pursuant to G. L. c. 276,
                                                                    3


§ 58.    A Juvenile Court judge allowed the Commonwealth's motion,

revoked the juvenile's bail, and set a date for a bail review

hearing on January 30, 2017, which amounted to a ninety-day bail

revocation.1

     By January 10, 2017, the charges stemming from the

juvenile's conduct while he was released on bail had been

resolved.2   The juvenile continued to be held on the original

charges, however, so he moved to vacate the bail revocation

order, but the judge who had revoked bail denied that motion.

In response, the juvenile filed an emergency petition with this

court pursuant to G. L. c. 211, § 3.    After a hearing, the

single justice issued an interim order, noting that the issue

raised by the juvenile in the petition, which he now presses

before the full court, was not raised in the trial court, and

concluding that the Juvenile Court judge did not abuse his

discretion in refusing to vacate the bail revocation order in

these circumstances.    One day later, there was a disposition in

the underlying delinquency complaint.    The single justice

subsequently reserved and reported the matter raised in the

     1
       The Juvenile Court judge allowed the Commonwealth's motion
to revoke bail in a margin endorsement which did not cite G. L.
c. 276, § 58, or G. L. c. 276, § 58B, or otherwise reference a
ninety-day revocation period.
     2
       Ultimately, the juvenile was adjudicated delinquent on one
count of assault and battery on a pregnant victim. The juvenile
received a suspended sentence and was placed on probation until
his eighteenth birthday.
                                                                      4


juvenile's petition to the full court, in order to give the

court an opportunity to address the proper application of G. L.

c. 276, §§ 58 and 58B,

    2.   Discussion.     Although this case is moot, we address the

issues raised because, as the single justice noted, they are

"fully briefed and raise matters of importance that are likely

to arise again, but are unlikely to be capable of appellate

review in the normal course before they become moot."     Delaney

v. Commonwealth, 415 Mass. 490, 492 (1993), quoting Upton,

petitioner, 387 Mass. 359, 365 (1982).

    Bail revocation under §§ 58 and 58B.      The juvenile claims

that the judge erred in applying the ninety-day revocation

period under G. L. c. 276, § 58B, as opposed to the sixty-day

revocation period under G. L. c. 276, § 58, after finding

probable cause to believe that the juvenile had committed a

crime while released on bail under § 58.     The crux of the

juvenile's argument is that because bail can be revoked under

either § 58 or § 58B, where an individual commits a crime while

on release, the statutes create an ambiguous bail revocation

framework, and therefore, the rule of lenity requires the

application of the sixty-day revocation period under § 58.     To

resolve this issue, we begin with the pertinent portions of § 58

and § 58B.   General Laws c. 276, § 58, sixth par., provides in

pertinent part:
                                                                  5


         "If a person is on release pending the
    adjudication of a prior charge, and the court . . .
    finds probable cause to believe that the person has
    committed a crime during said period of release, the
    court shall then determine, in the exercise of its
    discretion, whether the release of said person will
    seriously endanger any person or the community. . . .
    If the court determines that the release of said
    person will seriously endanger any person or the
    community and that the detention of the person is
    necessary to reasonably assure the safety of any
    person or the community, the court may revoke bail on
    the prior charge and may order said person held
    without bail pending the adjudication of said prior
    charge, for a period not to exceed sixty days."

The relevant portion of G. L. c. 276, § 58B, provides:

         "A person who has been released after a hearing
    pursuant to [§ 58]. . . shall be subject to a
    revocation of release and an order of detention . . .
    [if] the judicial officer finds (1) that there is
    probable cause to believe that the person has
    committed a [F]ederal or [S]tate crime while on
    release, . . . and (2) the judicial officer finds that
    there are no conditions of release that will
    reasonably assure the person will not pose a danger to
    the safety of any other person or the community; or
    the person is unlikely to abide by any condition or
    combination of conditions of release."

         ". . .

         "A person detained under this   subsection . . .
    shall not be detained for a period   exceeding ninety
    days excluding any period of delay   as defined in
    [Mass. R. Crim. P. 36 (b) (2), 378   Mass. 909 (1978)]."

    To determine the proper application of §§ 58 and 58B, we

apply the well-established principles of statutory construction.

Our fundamental aim is to "discern and effectuate the intent of
                                                                       6


the Legislature."   Commonwealth v. Morgan, 476 Mass. 768, 777

(2017).   To that end, "[t]he language of the statute is the

primary source of insight into the intent of the Legislature."

Commonwealth v. Millican, 449 Mass. 298, 300 (2007).      Therefore,

where the statute is clear and unambiguous, our inquiry into the

Legislature's intent need go no further than the statute's plain

and ordinary meaning.   See Falmouth v. Civil Serv. Comm'n, 447

Mass. 814, 818 (2006); Shamban v. Masidlover, 429 Mass. 50, 54

(1999) ("we are constrained to follow statutory language when it

is plain and unambiguous, unless to do so would lead to an

absurd result, or be contrary to the Legislature's manifest

intention").   We also are mindful that where "two or more

statutes relate to the same subject matter, 'they should be

construed together so as to constitute a harmonious whole,'

creat[ing] a consistent body of law, and giv[ing] full effect to

the expressed intent of the Legislature."   Paquette v.

Commonwealth, 440 Mass. 121, 130 (2003), cert. denied, 540 U.S.

1150 (2004), quoting Board of Educ. v. Assessor of Worcester,

368 Mass. 511, 513-514 (1975).

    The plain language of G. L. c. 276, §§ 58 and 58B, is clear

and unambiguous, particularly where § 58B explicitly includes

persons released on bail under § 58; an individual who is

released on bail pursuant to § 58 may have his or her bail

revoked under either § 58 or § 58B where, among other
                                                                   7


requirements, there is probable cause to believe the individual

committed a crime while on release.   The Legislature's decision

to provide two bail revocation mechanisms in these circumstances

does not create ambiguity.   Paquette, 440 Mass. at 130 ("The

Legislature is presumed to be aware of existing statutes when it

amends a statute or enacts a new one").   The Commonwealth's

discretion to seek to revoke bail under either § 58 or § 58B

does not equate to an ambiguous or otherwise impermissible bail

revocation scheme.   Cf. Commonwealth v. Ehiabhi, 478 Mass. 154,

159 (2017) (although two statutes criminalizing identical

conduct "create uncertainty as to which crime may be charged and

therefore what penalties may be imposed, they do so to no

greater extent than would a single statute authorizing various

alternative punishments" [citation omitted]).   Furthermore,

although the Commonwealth may move to revoke under either § 58

or § 58B where an individual commits a crime while on release,

it nonetheless must satisfy the distinct requirements of the

statute upon which its motion is based.   Compare G. L. c. 276,

§ 58 (revocation only where continued release "will seriously

endanger any person or the community"), with G. L. c. 276, § 58B

(revocation only where "there are no conditions of release that

will reasonably assure the person will not pose a danger to the

safety of any other person or the community; or the person is

unlikely to abide by any condition or combination of conditions
                                                                     8


of release").   The Legislature is free to amend these statutes

to provide a single means of revocation where an individual

commits an offense while released on bail pursuant to § 58;

however, the bail revocation scheme is not ambiguous in its

current form, and therefore, the rule of lenity does not apply.3

     b.   Due process.   The juvenile also claims that revoking

bail under § 58B where an individual has been released on bail

pursuant to § 58, and subsequently commits a crime while on

release, violates due process.4   Because pretrial detention

encroaches on a fundamental liberty interest, we consider both

substantive and procedural due process.    See Paquette, 440 Mass.

at 124, 131.




     3
       We note that although §§ 58 and 58B are not ambiguous, the
existing bail revocation scheme, as it applies to individuals
released on bail under § 58, can lead to incongruous results.
For example, an individual who has been released on bail in
Superior Court pursuant to G. L. c. 276, § 57, for a serious
crime may have his or her bail revoked for sixty days under § 58
if he or she commits another serious crime while on release. In
contrast, if an individual commits a less serious crime and is
released by a District Court judge on bail with conditions of
release pursuant to § 58, and that person violates a condition
of release that does not amount to a crime, the only available
revocation mechanism is § 58B, which results in a revocation
period not to exceed ninety days, excluding any period of delay
as defined by Mass. R. Crim. P. 36 (b) (2), 378 Mass. 909
(1979).
     4
       Based on the facts in the record and the issue that was
reserved and reported, we narrow our focus to determine whether
revocation under § 58B satisfies due process requirements only
where an individual is released on bail under § 58.
                                                                      9


    i.   Substantive due process.    "'"[S]ubstantive due process"

prevents the government from engaging in conduct that "shocks

the conscience," Rochin v. California, 342 U.S. 165, 172 (1952),

or interferes with rights "implicit in the concept of ordered

liberty," Palko v. Connecticut, 302 U.S. 319, 325-326 (1937).'

United States v. Salerno, 481 U.S. 739, 746 (1987)."

Commonwealth v. Knapp, 441 Mass. 157, 164 (2004), quoting Aime

v. Commonwealth, 414 Mass. 667, 673 (1993).     Where, as here, the

statute imposes a restriction on a fundamental right -- freedom

from physical restraint -- the statute "will be upheld only if

it is 'narrowly tailored to further a legitimate and compelling

governmental interest.'"     Paquette, 440 Mass. at 125, quoting

Aime, supra.   It is well established that the State "may impose

a regulatory restraint on the individual in narrowly-

circumscribed situations."    Aime, 414 Mass. at 677-678.   See

Salerno, 481 U.S. at 749 ("government's interest in preventing

crime by arrestees is both legitimate and compelling").

    We held in Paquette, 440 Mass. at 131, that the bail

revocation provision contained in § 58 survived due process

scrutiny because it "is narrowly tailored to further the

Commonwealth's legitimate and compelling interests in assuring

compliance with its laws, and in preserving the integrity of the

judicial process by exacting obedience to its lawful orders."

Similarly, the bail revocation procedure contained in § 58B is
                                                                    10


narrowly tailored to further the purpose of ensuring that an

individual who is released on bail pursuant to § 58 complies

with the court's lawful orders, particularly that the individual

refrain from committing a new crime while released on bail.    We

further emphasized in Paquette that revoking bail does not

violate substantive due process because "the liberty interest of

a person admitted to bail is conditional; if the person violates

the explicit condition of his release, then his liberty can be

curtailed."   Id. at 126 ("the keys to continued freedom are left

in the pocket of the accused" [citation omitted]).5   Accordingly,

we are satisfied that the revocation provision of § 58B, as it

applies to individuals who have been released on bail under § 58

and subsequently commit a crime, survives substantive due

process scrutiny.

     ii.   Procedural due process.   Even where government action

survives substantive due process scrutiny, procedural due

process protections require that the governmental action be

implemented in a fair manner.   Paquette, 440 Mass. at 131,

quoting Salerno, 481 U.S. at 746.    "The core of procedural due


     5
       Moreover, we observed that a "defendant cannot be heard to
complain that his constitutional right to liberty has been
violated when continued freedom was entirely within his own
control, and the deprivation thereof was an inevitable
consequence of his alleged failure to conform his conduct to the
laws of this Commonwealth and to the explicit condition of his
earlier release." Paquette v. Commonwealth, 440 Mass. 121, 129
(2003), cert. denied, 540 U.S. 1150 (2004).
                                                                    11


process is the adequacy of the hearing provided before a

deprivation of liberty or property occurs."    Aime, 414 Mass. at

683.   "In determining what process is due . . . this court 'must

balance the interests of the individual affected, the risk of

erroneous deprivation of those interests and the government's

interest in the efficient and economic administration of its

affairs.'"   Paquette, supra at 131, quoting Commonwealth v.

Barboza, 387 Mass. 105, 112, cert. denied, 459 U.S. 1020 (1982).

       We conclude that G. L. c. 276, § 58B, contains adequate

procedural safeguards to protect against erroneous deprivations

of liberty that are sufficient to satisfy the requirements of

procedural due process.    A critical component of our holding in

Paquette was that, prior to releasing a defendant on bail, § 58

requires that the judge explicitly advise the defendant that

bail may be revoked if the defendant commits a new crime while

on release. Paquette, 440 Mass. at 126, discussing G. L. c. 276,

§ 58, first par.    This constitutionally significant prerelease

protection is afforded to all defendants released on bail

pursuant to § 58, regardless of whether bail is eventually

revoked under § 58B.

       The procedures applied where bail is revoked under § 58B

are also constitutionally adequate.    As relevant here, a court

"shall" revoke bail under § 58B only after a hearing where the

Commonwealth (and the defendant) present evidence, and two
                                                                   12


requirements are satisfied.6   First, there must be "probable

cause to believe that the person has committed a [F]ederal or

[S]tate crime while on release."   G. L. c. 276, § 58B.    We hold,

as we did in Paquette, that the probable cause standard for

determining whether a defendant committed a crime while on

release survives constitutional scrutiny in the context of a

bail revocation hearing.   See Paquette, 440 Mass. at 131-132.

     Second, "the judicial officer" has to "find[] that there

are no conditions of release that will reasonably assure the

person will not pose a danger to the safety of any other person

or the community; or the person is unlikely to abide by any

condition or combination of conditions of release."   G. L.

c. 276, § 58B.   This is a significantly weightier showing to

revoke bail than under § 58.   Section 58 requires a showing that

the defendant "will seriously endanger any person or the

community."   Revocation under § 58B requires not only a showing

that the person will pose a danger to any other person or the

community, but also "that there are no conditions of release


     6
       Because G. L. c. 276, § 58B, relates to "[a] person who
has been released after a hearing pursuant to section[] . . .
58," we interpret the procedural requirements of a revocation
hearing under § 58B to be equivalent to those when the
Commonwealth seeks to revoke bail for the commission of a
subsequent offense while the person is on release pursuant to
§ 58. See Jake J. v. Commonwealth, 433 Mass. 70, 79 (2000)
("requirements of § 58B for revoking bail appear no less
rigorous than any other requirement that may have obtained in a
bail revocation").
                                                                  13


that will reasonably assure the person" will not pose such a

danger.   Only after determining that there is no set of

conditions that would allow the release of the individual under

§ 58B "shall" the judge revoke bail.   Id.7   The dual bail

revocation mechanisms established by §§ 58 and 58B are

constitutionally sufficient, in part, because the Commonwealth

can move for a sixty-day revocation, with a reduced showing,

under § 58, or for a ninety-day revocation, with a heightened

showing -- providing greater procedural protections to prevent

erroneous deprivations of liberty -- under § 58B.8    Additionally,



     7
       The parties did not argue, and we do not decide, whether
the rebuttable presumption in § 58B is constitutional in the
context of a revocation under § 58B when bail was granted under
§ 58. See G. L. c. 276, § 58B, second par. ("[i]f there is
probable cause to believe that" defendant committed crime while
on release, "a rebuttable presumption arises that no condition
or combination of conditions will assure that the person will
not pose a danger to the safety of any other person or the
community"). We note, however, that the rebuttable presumption
in § 58B may be difficult to reconcile with the presumption
recognized in § 58 that an individual will be released on bail
or personal recognizance. Cf. Delaney v. Commonwealth, 415
Mass. 490, 495 (1993).
     8
       We are cognizant that the potential deprivation of liberty
implicated by a bail revocation under § 58 or § 58B can be
substantial. We held in Commonwealth v. Pagan, 445 Mass. 315,
322 (2005), that the revocation period under § 58 "shall be
valid for a period of sixty days." The ninety-day revocation
period under § 58B, however, includes excusable delay under
Mass. R. Crim. P. 36 (b) (2), which means that the period of
pretrial detention can extend well beyond ninety days. Even
though the statutory scheme is clear that bail may be revoked in
this circumstance under either § 58 or § 58B, the heightened "no
conditions" analysis under § 58B provides the requisite
                                                                  14


requiring that bail be revoked only after finding that there is

no combination of conditions that would allow the defendant's

release furthers the bail statute's purpose of "establish[ing]

the right of the accused, in most circumstances, to be admitted

to bail." Paquette, 440 Mass. at 126, quoting Commonwealth v.

Finelli, 422 Mass. 860, 863 (1996).9    Consonant with our holding

in Paquette, supra, the bail revocation inquiries under § 58B

are left to the sound discretion of the judge, and they provide

the necessary procedural protections to satisfy procedural due

process.   Accordingly, the revocation procedure set forth in

§ 58B complies with both substantive and procedural due process

in the context of a bail revocation hearing where an individual

was released on bail pursuant to § 58 and where the Commonwealth

seeks to revoke bail under § 58B because the defendant allegedly

committed a crime while on release.10




procedural protections to support the longer period of
revocation.
     9
       "The principal legislative purpose of § 58 is 'to protect
the rights of the defendant by establishing a presumption that
he or she will be admitted to bail on personal recognizance
without surety and by delineating carefully the circumstances
under which bail may be denied.'" Pagan, 445 Mass. at 319,
quoting Delaney, 415 Mass. at 495.
     10
       The juvenile's claim that the Juvenile Court judge erred
in denying his motion to reconsider the bail revocation order
exceeds the parameters of the issue before us, and thus we
decline to address it.
                                                                  15


    Conclusion.   We conclude that where an individual has been

released on bail pursuant to G. L. c. 276, § 58, and there is

probable cause to believe the individual committed a crime while

released on bail, a trial court judge may revoke bail under

either § 58 or G. L. c. 276, § 58B, if the Commonwealth is able

to make the requisite showing under the respective statute.

    The matter is remanded to the single justice of the county

court, where an order shall enter dismissing the petition as

moot.

                                   So ordered.
