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17-P-411                                                Appeals Court

                COMMONWEALTH     vs.   RONALD A. BALLARD.


                               No. 17-P-411.

      Worcester.       December 8, 2017. - February 2, 2018.

             Present:    Sacks, Ditkoff, & Singh, JJ.


Sex Offender. Practice, Civil, Sex offender. Practice,
     Criminal, Plea. Statute, Construction. Words, "Prisoner."



     Civil action commenced in the Superior Court Department on
February 4, 2014.

    A motion to dismiss was heard by Daniel M. Wrenn, J.


     Ellyn H. Lazar-Moore, Assistant District Attorney, for the
Commonwealth.
     John S. Day for the defendant.


    SACKS, J.    The Commonwealth appeals from a judgment

dismissing its petition to commit the defendant as a sexually

dangerous person (SDP) pursuant to G. L. c. 123A, § 12.        On the

date the petition was filed, the defendant was serving a

criminal sentence; some two and one-half years later, the

defendant was allowed to withdraw the guilty pleas to the
                                                                      2


offenses for which he had been sentenced.    This led a Superior

Court judge to rule, based on his interpretation of Coffin v.

Superintendent, Mass. Treatment Center, 458 Mass. 186 (2010),

that the defendant was not a prisoner under G. L. c. 123A,

§ 12(b), at the time the petition was filed, and thus was not

subject to being committed as an SDP.     Concluding that the judge

applied Coffin too broadly, we reverse.

     Background.   In the 1980s, the defendant was convicted of a

number of sexual offenses against women in both the Commonwealth

and California.    He received State prison sentences in both

jurisdictions, completing his sentence in the Commonwealth in

2003, at which time the Commonwealth successfully petitioned to

commit him to the Massachusetts Treatment Center (treatment

center) as an SDP.   Following a trial in which the defendant was

found no longer sexually dangerous, he was discharged in 2007.

     In 2013, based on an incident in which the defendant

approached a seventeen year old female working at a farm stand,

criminal complaints issued from the District Court charging him

with accosting or annoying a person of the opposite sex in

violation of G. L. c. 272, § 53,1 threatening to commit a crime

in violation of G. L. c. 275, § 2, and intimidation of a witness


     1
       In 2014, G. L. c. 272, § 53, was amended to substitute
"another person" for "persons of the opposite sex." St. 2014,
c. 417.
                                                                  3


in violation of G. L. c. 268, § 13B.    In January, 2014, the

defendant pleaded guilty to the charges and was sentenced to

concurrent sentences amounting to nine months in the house of

correction, with credit for time served.2

     In February, 2014, while the defendant was serving his

sentences, the Commonwealth petitioned in Superior Court to have

him civilly committed as an SDP.   In April, 2014, a different

judge found probable cause to believe the defendant was an SDP

and committed him to the treatment center for examination and

diagnosis by two qualified examiners.   Based on their reports,

the Commonwealth moved for a jury trial; after that motion was

allowed, the defendant obtained funds to retain his own experts

for the purposes of trial.

     In January, 2015, while trial preparations were ongoing and

the defendant remained at the treatment center, he filed a

motion in the District Court to withdraw his guilty pleas and

for a new trial, asserting that the plea colloquy was defective

by reason of the prosecutor's failure to state sufficient facts




     2
       More specifically, the defendant received a nine-month
sentence on the witness intimidation charge with 159 days of
credit for time served; a six-month concurrent sentence on the
threatening charge; and a three-month sentence on the accosting
or annoying charge, from and after the sentence for threatening
and concurrent with the sentence for witness intimidation.
                                                                    4


to establish the elements of each offense.3   That motion was

denied.   The defendant appealed and in August, 2016, in a

memorandum and order issued pursuant to our rule 1:28, a panel

of this court reversed, holding that the prosecutor's statement

was inadequate to establish that a sufficient factual basis

existed for any of the charges, thus resulting in constitutional

error.    Commonwealth v. Ballard, 90 Mass. App. Ct. 1102 (2016).

The panel directed the entry of an order allowing the motion to

withdraw the guilty pleas and for a new trial.

     In September, 2016, the defendant moved in Superior Court

to dismiss the Commonwealth's petition to commit him as an SDP.

He argued that the result of the 2016 order allowing him to

withdraw his guilty pleas was that, at the time the petition was

filed in 2014, he had been serving a "constitutionally unlawful

sentence."    He asserted that therefore he was not a prisoner

under G. L. c. 123A, § 12(b), as interpreted in Coffin, 458

Mass. at 187, and so could not be subject to civil commitment as

an SDP.   The Superior Court judge agreed, dismissed the



     3
       The defendant moved for a stay of the SDP proceedings
pending a ruling on his motion to withdraw his pleas and for a
new trial. In allowing the motion for a stay, the judge in the
SDP proceedings had the following notation added to the docket:
"Defendant stated under oath, he was in agreement with the
request, that he understood it may result in him being held in
custody for a longer time and he has ample time to confer with
counsel. Defendant will remain in custody."
                                                                    5


petition, and ordered the defendant discharged from the

treatment center.     The Commonwealth appealed.4

     Discussion.     Under § 12(b), the Commonwealth may "file a

petition for civil commitment as an SDP only for a 'prisoner or

youth in the custody of the department of youth services.'

Because G. L. c. 123A is 'a statute in derogation of liberty,'

. . . the statute must be interpreted narrowly."     Coffin, 458

Mass. at 188-189, quoting from Commonwealth v. Gillis, 448 Mass.

354, 364 (2006).5    "[T]he fact of custody alone is not

determinative."     Coffin, supra at 189, citing Commonwealth v.

Allen, 73 Mass. App. Ct. 862, 864 (2009).     Thus, where the

Commonwealth petitioned to commit a person at a time when he was

being held in prison beyond the end of his sentence, due solely

to a clerical error in sentence calculation, the person was not


     4
       The judge denied the Commonwealth's motion to stay
execution of the order releasing the defendant.
     5
         The statute further requires that the person be someone:

     "[1] 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 section 1 [of G. L. c. 123A],
     regardless of the reason for the current incarceration,
     confinement or commitment, or [2] who has been charged with
     such offense but has been found incompetent to stand trial,
     or [3] who has been charged with any offense, is currently
     incompetent to stand trial and 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), as amended by St. 2004, c. 66, §§ 7-9.
                                                                      6


"serving a sentence," was not a "prisoner," and thus was not

subject to commitment under the statute.6   Allen, supra.

     In Coffin, the Supreme Judicial Court confronted the

question "whether, for purposes of § 12(b), a person placed in

custody pursuant to an unconstitutional statute is nevertheless

a 'prisoner.'"   458 Mass. at 186.   The Coffin case arose in the

wake of the decision in Commonwealth v. Pagan, 445 Mass. 161,

170-174 (2005), declaring the lifetime community parole statute,

G. L. c. 275, § 18, "facially unconstitutional" as applied to

first-time offenders.7   Coffin, supra at 187.   Shortly after

Pagan was decided, Coffin was found in violation of his lifetime

community parole conditions and ordered to serve one year for

the violation.   Ibid.   While in custody for that violation,

Coffin moved under Pagan to vacate his lifetime community parole

sentence as unconstitutional; the Commonwealth conceded that his

sentence was unconstitutional and assented to the motion.       Id.

at 188.   Nevertheless, before the motion was heard and allowed,

and while Coffin was still in custody, the Commonwealth



     6
       Indeed, in Allen, the Commonwealth had filed its petition
"the day after the defendant's motion to correct the sentence
had been allowed, and almost three weeks after his sentence had
ended." 73 Mass. App. Ct. at 863.
     7
       Later, the Supreme Judicial Court found the lifetime
community parole statute unconstitutional as applied to repeat
offenders as well. Commonwealth v. Cole, 468 Mass. 294 (2014).
                                                                     7


petitioned under § 12(b) to adjudicate him an SDP, whereupon he

was committed pending trial on the petition.    Coffin, supra.

    On Coffin's request for relief under G. L. c. 211, § 3, the

Supreme Judicial Court held that the Legislature could not have

intended "the term 'prisoner' in § 12(b) . . . to encompass a

person who is held in custody solely pursuant to a statute that

itself is facially unconstitutional."    458 Mass. at 189.     The

court continued, "We reject the proposition that the Legislature

meant § 12(b), which is itself a forceful assertion of State

authority, to be triggered by a custodial arrangement that

should not have been imposed in the first place, and cannot be

imposed on anyone in the future."    Coffin, supra.   Accordingly,

the court "construe[d] § 12(b) to mean that an individual is a

'prisoner' for purposes of the statute only if he is serving a

sentence imposed under a statute that is constitutionally

sound."   Coffin, supra.   Coffin was not such an individual, and

thus he was not subject to commitment as an SDP.      Ibid.   Indeed,

"it was undisputed that [Coffin's] sentence was not valid at the

time of the Commonwealth's filing. . . .    [He] was being held in

custody only until he could appear before a judge to have his

unconstitutional sentence vacated in light of Commonwealth v.

Pagan."   Coffin, supra at 190.

    The case now before us is quite different from Coffin.

First and most important, none of the statutes under which the
                                                                   8


defendant here was charged and sentenced has been declared

unconstitutional, either facially or as applied to him.    The

petition for the defendant's commitment thus satisfies Coffin's

requirement that a person is a "prisoner" for § 12(b) purposes

"only if he is serving a sentence imposed under a statute that

is constitutionally sound."   458 Mass. at 189.

    Second, at the time the Commonwealth petitioned to commit

this defendant as an SDP, he was serving sentences pursuant to

guilty pleas that were presumptively valid at the time of the

petition and remained undisturbed for two and one-half years

thereafter.   The pleas were accepted and the defendant was

sentenced in January, 2014; the petition to commit him was filed

in February, 2014; only later, in August, 2016, were the guilty

pleas ruled invalid.   Compare Coffin, 458 Mass. at 188 (even

before filing of SDP petition, Commonwealth had conceded

constitutional invalidity of individual's sentence); Allen, 73

Mass. App. Ct. at 863 (even before filing of SDP petition, court

had ruled that defendant's sentence had terminated nearly three

weeks earlier).

    Third, where the fundamental question is one of legislative

intent, and in light of the principle that G. L. c. 123A, as a

statute in derogation of liberty, must be narrowly construed,

see Coffin, 458 Mass. at 189, it is reasonable to assume that

the Legislature never envisioned G. L. c. 123A being used in
                                                                    9


conjunction with another, facially unconstitutional statute to

impose civil commitments.   "There is every presumption that the

legislative department of government always intends to act

strictly within the bounds of the Constitution."    Commonwealth

v. Welosky, 276 Mass. 398, 406 (1931).

     At the same time, however, the Legislature must also be

presumed to be aware that convictions are occasionally

invalidated, sometimes many years after the fact, based on a

wide variety of constitutional or nonconstitutional errors in

individual trials, or where it otherwise "appears that justice

may not have been done."    Mass.R.Crim.P. 30(b), as appearing in

435 Mass. 1501 (2001).   While such nonsystemic errors and

possible injustices are regrettable, and it is our duty to

correct them, there is no indication in G. L. c. 123A that the

Legislature intended judicial decisions vacating convictions on

these grounds to go farther, to retroactively invalidate § 12(b)

petitions that were based on the resulting, presumptively valid

sentences of incarceration.   Unlike the judge here, we do not

read Coffin to require such a result.8


     8
       The judge relied on the statement in Coffin that the
Legislature did not intend § 12(b) "to be triggered by a
custodial arrangement that should not have been imposed in the
first place . . . ." 458 Mass. at 189. If that were an
absolute, then a conviction later invalidated on any ground
whatsoever would result in the invalidation of any resulting
sentence of imprisonment and of any SDP petition or commitment
predicated on that imprisonment. The judge may have overlooked
                                                                    10


    That § 12(b) must be construed narrowly does not mean it

must be read to exclude as many incarcerated persons as

possible; that would be inconsistent with the acknowledged

public safety goals of G. L. c. 123A.   "The SDP statute seeks to

balance the dual concerns of protecting the public from sexually

dangerous persons and preserving individual liberty."     Gillis,

448 Mass. at 356, citing Commonwealth v. Parra, 445 Mass. 262,

264 (2005), and Commonwealth v. Knapp, 441 Mass. 157, 160

(2004).   This public safety interest "is both legitimate and

compelling."   Commonwealth v. Bruno, 432 Mass. 489, 504 (2000).

That the Legislature did not intend the narrowest possible

construction is evident from its response to Commonwealth v.

McLeod, 437 Mass. 286 (2002).   After the McLeod court construed

the SDP statute then in effect as not authorizing commitment of

persons previously convicted of sexual offenses if their current

incarcerations were for nonsexual offenses, id. at 292-294, and

concluded that "any broadening of the statute would be the

province of the Legislature," id. at 294, the Legislature

amended the statute to apply to the class of persons the court


the remaining language in the quoted sentence from Coffin:
§ 12(b) was not meant "to be triggered by a custodial
arrangement that should not have been imposed in the first
place, and cannot be imposed on anyone in the future." Coffin,
supra (emphasis supplied). The decisive factor in Coffin was
the facial invalidation of the statute under which Coffin was a
prisoner, not that Coffin himself should never have been
imprisoned.
                                                                      11


had held excluded.    See G. L. c. 123A, § 12(a), as amended by

St. 2004, c. 66, §§ 7–9.      See Gillis, supra at 361-362.

       We must construe the term "'prisoner[]' in the ordinary

sense of the word," and "[t]he key operative fact of the statute

is that SDP commitment is only available if the procedure is

initiated before the termination of a period of criminal

confinement."   Id. at 359.    The defendant here was a prisoner in

the ordinary sense, and the procedure to commit him was

initiated before the termination of his criminal confinement.

That the guilty pleas underlying his sentences were vacated

based not on the constitutional invalidation of any statute but

instead on circumstances particular to his case, and were

vacated several years after the fact -- indeed, well after the

expiration of those sentences -- did not retroactively render

the defendant something other than a prisoner at the time the

§ 12(b) petition was filed.

       Our conclusion draws further support from McIntire,

petitioner, 458 Mass. 257 (2010), decided one day after Coffin.

In McIntire, an adjudicated SDP had petitioned for release under

G. L. c. 123A, § 9, but in 2002 a jury found that he remained an

SDP.   458 Mass. at 258, 259.    He appealed from the resulting

judgment; before that appeal was decided in 2010, he filed three

more petitions for release, which resulted in judgments in 2005,

2008, and 2010 that he remained an SDP.      Id. at 263.   Later in
                                                                    12


2010, he prevailed on his appeal from the 2002 judgment on the

ground that both qualified examiners who testified at trial had

opined that he was no longer sexually dangerous, leaving

insufficient evidence for the jury to find otherwise.    Id. at

262, citing Johnstone, petitioner, 453 Mass. 544, 546, 553

(2009).    McIntire argued that the reversal of the 2002 judgment

meant that after 2002 he was no longer legally in custody, so

that the Superior Court had no jurisdiction to hear his three

subsequent discharge petitions and to determine that he remained

an SDP, with the result that he was entitled to an order

discharging him from the treatment center.    McIntire, supra at

263-264.

    The Supreme Judicial Court disagreed.    "[B]ecause the 2002

judgment had not been reversed at the time of the petitioner's

2005, 2008, and 2010 discharge proceedings, that earlier

judgment remained validly in effect, and the petitioner was

therefore legally held at the treatment center as an SDP when he

filed the three later discharge petitions," meaning the Superior

Court had jurisdiction to adjudicate them and a fact finder

could determine that he remained an SDP.    Id. at 265-266.   In

short, the reversal of the 2002 judgment in 2010 did not

retroactively invalidate the lawfulness of McIntire's commitment

after 2002, which was a predicate for the subsequent judgments

that he remained an SDP.
                                                                    13


     To be sure, McIntire involved the effect on earlier-

initiated SDP proceedings of the invalidation of an SDP

judgment, rather than the invalidation of criminal convictions

such as those involved here.     We nevertheless view McIntire as

illustrating that, for purposes of G. L. c. 123A, a commitment

or criminal confinement as a prisoner is not automatically

rendered retroactively invalid ab initio by a subsequent

determination of error in the underlying proceedings.9

     We also acknowledge that McIntire turned in part on whether

the critical 2002 judgment was void, as McIntire claimed, or

merely voidable for error, as the court ultimately held.    458

Mass. at 264-266.   The court in Coffin, supra at 190 n.8, found

it unnecessary to consider "whether [Coffin's] sentence was void

ab initio or merely voidable."    In doing so the court cited,

among other cases, Chicot County Drainage Dist. v. Baxter State

Bank, 308 U.S. 371, 374 (1940), where the United States Supreme

Court discussed the difficulty of determining whether a prior

judgment had been rendered void by a subsequent judicial

decision (in that case, a statute's invalidity).    "The past

cannot always be erased by a new judicial declaration. . . .


     9
       Compare Lynch, petitioner, 379 Mass. 757, 758 (1980), a
habeas case where the court rejected "the fiction that the
petitioner was out on parole because he should have been" -- a
fiction on which, for different purposes, both the Department of
Correction and the prisoner sought to rely.
                                                                 14


These questions are among the most difficult of those which have

engaged the attention of courts, state and federal, and it is

manifest from numerous decisions that an all-inclusive statement

of a principle of absolute retroactive invalidity cannot be

justified."   Ibid.

     As there is no single rule governing whether a withdrawn

guilty plea or the resulting conviction is void or merely

voidable,10 we decline to rest our decision on that distinction.

We hold only that, notwithstanding the later withdrawal of his

guilty pleas, the defendant was a prisoner under § 12(b) at the

time the petition was filed, and thus he was subject to being

committed as an SDP.

     Conclusion.   The judgment on the defendant's motion to

dismiss the Commonwealth's petition is reversed.

                                    So ordered.




     10
       Compare Commonwealth v. Berrios, 447 Mass. 701, 708
(2006) ("[A] guilty plea is void if it is involuntary and
unintelligent for any reason"), quoting from Huot v.
Commonwealth, 363 Mass. 91, 96 (1973), with Parreira v.
Commonwealth, 462 Mass. 667, 667, 670 (2012) (where guilty plea
was "the product of judicial coercion," there was "no question
. . . that the defendant's plea was voidable at his option"),
and Commonwealth v. Martin, 476 Mass. 72, 76 (2016) (in Hinton
laboratory case, "although the defendant's guilty plea was
vacated, . . . [his] conviction was merely voidable, not void ab
initio, as the defendant suggests").
