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SJC-11841

     GEORGE GOE1     vs.    COMMISSIONER OF PROBATION & another.2



          Suffolk.         November 2, 2015. - March 14, 2016.

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


Practice, Criminal, Probation. Interstate Compact for Adult
     Offender Supervision. Global Positioning System Device.



     Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on January 29, 2015.

     The case was reported by Cordy, J.


     Beth L. Eisenberg, Committee for Public Counsel Services
(Lily Lockhart, Committee for Public Counsel Services, & Spencer
Lord with her) for the petitioner.
     Steven R. Strom, of Connecticut, for the intervener.
     Sarah M. Joss, Special Assistant Attorney General, for
Commissioner of Probation.
     U. Gwyn Williams, Laura Carey, & Charles Stones, for
Citizens for Juvenile Justice & another, amici curiae, submitted
a brief.



     1
         A pseudonym.
     2
       Interstate Commission for Adult Offender Supervision,
intervener.
                                                                   2


    GANTS, C.J.   This case comes to us on a reservation and

report from the single justice asking the following questions:

         "(1) Whether the Massachusetts courts are the
    appropriate forum for challenging additional probation
    conditions imposed on a probationer transferred to
    Massachusetts pursuant to the Interstate Compact for Adult
    Offender Supervision; and, if so, what is the proper
    mechanism for mounting such a challenge?

         "(2) Whether a transferee probationer is entitled to
    actual notice of mandatory [global positioning system
    (GPS)] monitoring pursuant to G. L. c. 265, § 47[,] from
    the sentencing judge, or whether such notice is implied or
    waived by a petitioner's voluntary transfer to
    Massachusetts[?]

         "(3) Whether mandatory GPS monitoring for crimes
    committed as a minor constitutes cruel and unusual
    punishment, where the minor was convicted as an adult in
    another jurisdiction?

         "(4) Whether the Commissioner of Probation's Policy on
    the Issuance of Travel Permits is ultra vires; and, if not,
    whether the application of that policy to the petitioner
    violated his right to interstate travel?"

    In answer to the first question, we conclude that, where a

probationer whose supervision is transferred to Massachusetts

under the Interstate Compact for Adult Offender Supervision

(compact) contends that a special condition of probation that

was added by Massachusetts is not mandated by Massachusetts law

or is unconstitutional, this determination is appropriately made

by a Massachusetts court, and the appropriate mechanism to

obtain such a determination is through a complaint for

declaratory relief.   We also conclude that the Massachusetts

probation department may not add mandatory GPS monitoring under
                                                                      3


G. L. c. 265, § 47, as a special condition of probation for this

probationer.   In light of that conclusion, we decline to answer

questions two and three because they are moot.    In answer to

question four, regarding the Policy on the Issuance of Travel

Permits promulgated by the Massachusetts Commissioner of

Probation (commissioner), we conclude that the prohibition on

out-of-State travel for probationers being supervised for sex

offenses is not an additional condition of probation imposed on

a transferred probationer.    We, therefore, reject the contention

that the policy is ultra vires as an additional condition.       We

decline to answer whether the application of that policy to the

petitioner violated his right to interstate travel because the

appropriate forum for such a constitutional claim is the sending

State, where it may be considered with the petitioner's

nonconstitutional arguments for modification of the sending

State's condition that he not travel out-of-State without

permission from his probation officer.3

     Background.   On April 29, 2013, the petitioner, who was the

defendant in criminal proceedings in the Connecticut Superior

Court (defendant), pleaded guilty to two crimes that he

committed at the age of fourteen against a six year old


     3
       We acknowledge the   brief submitted by the intervener
Interstate Commission for   Adult Offender Supervision and the
amicus brief submitted by   the Citizens for Juvenile Justice and
the Children's Law Center   for Massachusetts.
                                                                    4


relative:   sexual assault in the third degree and risk of injury

to a minor.   Although he was a juvenile when he committed these

crimes and only fifteen years old when he pleaded guilty to

their commission, he was convicted as an adult.   After

completing a residential treatment program, he was sentenced to

a period of incarceration of five years (the execution of which

was suspended) and ten years of probation supervision.    The

judge ordered a number of special conditions and, as permitted

under Connecticut law, Conn. Gen. Stat. § 53a-30(b) (2015),

authorized the probation department to add "any other conditions

deemed appropriate."

    As a general condition of probation, the defendant was

ordered not to leave the State of Connecticut "without

permission from the Probation Officer."   The Connecticut

probation department also added twenty-four special conditions,

including that the defendant "will submit to electronic

monitoring as directed by a Probation Officer."   The defendant

signed the probation form that set forth these conditions and

that obliged him to "abide by them," and his signature was

witnessed by his grandmother.

    The defendant applied pursuant to the compact to transfer

his probation supervision to Massachusetts, where he intended to
                                                                    5


live with his maternal grandparents.4    His application was

granted and his supervision was transferred to Massachusetts,

where he was assigned to the probation service of the Middlesex

County Division of the Juvenile Court Department in Lowell

because he was then sixteen years old.

     On February 19, 2014, the defendant filed a "Motion to

Reopen and Modify Conditions of Probation" in the Superior Court

in Connecticut that requested modification of several

conditions, claiming they were unnecessary, impossible to comply

with, or detrimental to his rehabilitation.    Among the

conditions he sought to modify were (1) that he submit to

electronic monitoring as directed by a probation officer, and

(2) that he not travel out of Massachusetts without the

permission of a probation officer.5   As to these conditions, the

defendant asked the judge to modify or eliminate the requirement

of electronic monitoring, and to authorize him, with prior


     4
       The defendant's application fell within the Interstate
Compact for Adult Offender Supervision (compact) rather than the
Interstate Compact for Juveniles because the compact defines
"[a]dult" to mean "both individuals legally classified as adults
and juveniles treated as adults by court order, statute, or
operation of law." Interstate Commission for Adult Offender
Supervision, ICAOS Rules, Rule 1.101, at 5 (effective Mar. 1,
2014) (ICAOS Rules),
http://www.interstatecompact.org/Portals/0/library/legal/ICAOS_R
ules.pdf [https://perma.cc/SM9H-NQBL].
     5
       The defendant claimed that "[t]he Massachusetts
[p]robation [d]epartment refuses to permit [him] to travel out
of state during the [ten] year period of his probation."
                                                                    6


approval of the Connecticut or Massachusetts probation

department, to travel with his maternal grandparents to New

Hampshire every weekend from May 23 to September 1, 2014.    On

April 3, 2014, as to these conditions, the judge granted the

defendant's motion only to the extent that "GPS monitoring will

be at [the] discretion of [the State] of Massachusetts Dept. of

Probation (Juvenile)."

    On June 3, 2014, the defendant's attorneys wrote a letter

to the commissioner asking that the defendant not be subjected

to mandatory GPS monitoring, and that he be considered for

travel permits to New Hampshire and Florida, "so long as his

itinerary and other aspects of his travel meet approval by his

Probation Officer."   On August 22, 2014, the commissioner

responded that the probation department considered the

defendant's arguments for relief from the GPS requirement but

decided to impose GPS monitoring because of the level of

seriousness of the crime, the difference in age between the

defendant and the victim, "the nature of the supervision for

another state," the level of risk posed by the above factors,

"the fact that he was treated in Connecticut as an adult on a

long adult probation order[,] and . . . that Connecticut

originally included GPS as a condition and then modified its

Order to leave it to Massachusetts' discretion."   He added that,

"[b]efore Probation can consider any adjustment to the GPS
                                                                    7


requirement, [the defendant] will have to complete one year of

supervision with no violations and with full compliance."6    The

commissioner also declared that, once the defendant turned

eighteen years of age [which he did in July, 2015], "Probation

will continue the GPS as it would for any adult under [G. L.

c. 265, § 47]."7,8

     The commissioner also wrote that the defendant had not

justified an exception to the probation department's travel

policy, dated January 11, 2012, which declared that the

"Probation Service shall not authorize travel permits" under

various circumstances, including where "[t]he probationer has an

order of electronic monitoring . . . as a condition of

probation," where "[t]he probationer is being supervised for a

sex offense," or where the probationer is an "interstate compact

sex offender unless the sending state court has approved, and


     6
       The Massachusetts Commissioner of Probation (commissioner)
added that the probation department would need "an independent
evaluation of his level of risk."
     7
         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
     [GPS] device . . . ."
     8
       The commissioner characterized the defendant's letter as
requesting that the defendant "be free of GPS monitoring,
despite G. L. c. 265, § 47."
                                                                   8


the probationer has produced, a travel permit in writing"

(emphasis in original).   The commissioner noted that, although

the probation department will not authorize travel permits in

these circumstances, "out of state travel is possible where a

judge authorizes it."

     On March 13, 2015, the defendant appeared the Superior

Court in Connecticut and admitted that he violated conditions of

his probation by joining and participating in the Boy Scouts and

by accessing a Facebook account without permission.   The judge

found the defendant in violation of his probation and placed him

on a six-month "watch" during which he would be monitored month-

to-month in what the judge described as "intensive sex offender

probation."   If the defendant completed the six-month period

with no violations of the conditions of probation, he would be

returned to probation with the same termination date and the

same conditions as were originally imposed.9


     9
       The commissioner contends that the judge at this probation
violation hearing ordered mandatory GPS monitoring because the
docket sheet regarding that hearing included a clerk's note that
the "[defendant] can go back to live in Mass. Do GPS there."
The docket notation, however, is not supported by the transcript
of that hearing, which reflects that the judge explained to the
defendant that, if he complied with all the conditions of his
probation during the six-month "watch" period, he would "be put
back on probation with the original conditions reimposed." The
only reference to GPS monitoring at the hearing occurred after
the judge had accepted the defendant's admission to a violation
of probation and ordered that a finding of violation may enter,
when the defendant's attorney informed the judge that the
defendant was "under a GPS monitoring system" in Massachusetts
                                                                      9


    In January, 2015, the defendant filed the instant petition

in the county court pursuant to G. L. c. 211, § 3, seeking

extraordinary relief from what he characterized as the

unconstitutional and "otherwise unreviewable" orders of the

commissioner to mandate GPS monitoring of the defendant and to

forbid him from traveling out of State.    On March 13, 2015, the

same day the defendant was found in violation of probation

conditions by a Connecticut judge, the single justice reserved

and reported the case, along with his four questions.

    Discussion.   1.   Interstate Compact for Adult Offender

Supervision.   The compact regulates the interstate transfer of

supervision of those individuals on probation or parole due to

the commission of a criminal offense.     Interstate Commission for

Adult Offender Supervision, ICAOS Rules, Rule 1.101, at 6

(effective Mar. 1, 2014) (ICAOS Rules),

http://www.interstatecompact.org/Portals/0/library/legal/ICAOS_R

ules.pdf [https://perma.cc/SM9H-NQBL]. (defining "[o]ffender"

subject to compact).   The compact has been enacted by statute in



but the Connecticut Department of Corrections cut the GPS
bracelet off his ankle the previous day. Defense counsel sought
assurance that this removal of the GPS bracelet would not result
in a violation of probation. The judge asked if the
Massachusetts probation department would resume the GPS
monitoring upon the defendant's return to Massachusetts, and the
prosecutor told the judge that "[t]hey most certainly will" but
"the state is not seeking a violation on something that was cut
off him." There is nothing in the transcript to suggest that
the judge mandated GPS monitoring of the defendant.
                                                                    10


all fifty States as well as the District of Columbia, Puerto

Rico, and the United States Virgin Islands.     Interstate

Commission for Adult Offender Supervision, ICAOS Bench Book for

Judges and Court Personnel, at 40-41 (2014) (ICAOS Bench Book),

http://www.interstatecompact.org/Portals/0/library/publications/

Benchbook.pdf [https://perma.cc/3DFZ-RUEQ].     It was enacted in

Massachusetts in 2005.     St. 2005, c. 121.   The compact was

created to address weaknesses in the earlier Interstate Compact

for the Supervision of Parolees and Probationers, which was

drafted in 1937.     ICAOS Bench Book, supra at 35, 38.   The

compact created the Interstate Commission on Adult Offender

Supervision and empowered it to promulgate rules regulating the

transfer of offenders that have the force of statutory law in

all of the compacting States.     ICAOS Bench Book, supra at 38,

43-44.   See, e.g., G. L. c. 127, § 151E (b).    The compact is the

exclusive means to transfer supervision from one State to

another for those offenders who are eligible under the compact.

ICAOS Rule 2.110(a), supra at 21.

    The application of the rules of the compact can be

illustrated by considering the case of the defendant, who sought

to transfer probation supervision from Connecticut to

Massachusetts.     Once an offender has been convicted and

sentenced to some form of supervision in Connecticut, transfer

of that supervision to Massachusetts must first be permitted by
                                                                    11


Connecticut.   ICAOS Rule 3.101, supra at 22.   ICAOS Bench Book,

supra at 53.   If approved, the offender must complete an

application, which Connecticut must transmit to Massachusetts.

ICAOS Rule 3.102, supra at 28.   In certain situations, such as

where the offender is a resident of Massachusetts or where the

offender has means of support and family in the Commonwealth who

can assist in the offender's plan of supervision, acceptance of

the transfer by Massachusetts is mandatory; in other cases

acceptance is discretionary.   ICAOS Rules 3.101, 3.101-2, supra

at 22, 26.

    Where an offender transfers probation supervision from

Connecticut (the sending State) to Massachusetts (the receiving

State) pursuant to the compact, Connecticut must inform

Massachusetts of the special conditions that it has imposed at

the time of sentencing or during the period of probation.     ICAOS

Rule 4.103(c), supra at 42 ("A sending state shall inform the

receiving state of any special conditions to which the offender

is subject at the time the request for transfer is made or at

any time thereafter").   Massachusetts must enforce those

conditions unless it is unable to do so, and if it is unable, it

must notify Connecticut of its inability to do so at the time

the request for transfer of supervision is made.    ICAOS Rule

4.103(d), supra at 42.   See ICAOS Bench Book, supra at 68

("Although a court may as a condition of probation impose a
                                                                   12


special condition and require that the condition be met in the

receiving state, the receiving state can refuse to enforce the

special condition if the receiving state is unable to do so").

If Massachusetts were to inform Connecticut that it is unable to

enforce a special condition of probation, Connecticut has the

option of removing the problematic condition or withdrawing the

transfer request and requiring the offender to complete

supervision in Connecticut.   ICAOS Bench Book, supra.

     At the time Massachusetts accepts the probationer or during

the term of supervision, Massachusetts may add a special

condition, but only "if that special condition would have been

imposed on the offender if sentence had been imposed in the

receiving state."   ICAOS Rule 4.103(a), supra at 42.    Because

the compact authorizes Massachusetts (the receiving State) to

add only those conditions that "would have been imposed" if the

offender had been sentenced in Massachusetts, the probation

department in Massachusetts may add a special condition only

where a judge would have been required by law to impose that

special condition on the defendant at sentencing; it may not

impose a condition of probation that a sentencing judge simply

had the discretion to impose.10   If Massachusetts were to add a


     10
       We note that although the compact empowers the probation
department to impose special conditions on offenders who
transfer their supervision from another State, ICAOS Rule
4.103(b), supra at 42, the probation department does not have
                                                                  13


special condition, it must notify Connecticut of the nature of

the special condition and its purpose.   ICAOS Rule 4.103(b),

supra at 42.   If Connecticut were to decide not to accept that

condition, it may exercise its authority to retake the

probationer, thereby revoking the transfer.   See ICAOS Rule

5.101(a), supra at 55.

     After a Connecticut probationer is transferred to

Massachusetts, the probationer must be supervised in a manner

"consistent with the supervision of other similar offenders

sentenced in [Massachusetts]."   ICAOS Rule 4.101, supra at 40.

However, Connecticut retains jurisdiction over the probationer

and may "retake" him or her at any time for any reason.11    ICAOS

Rule 5.101(a), supra at 55.   If the probationer were to commit a

significant violation of probation, Massachusetts would be

required to inform Connecticut of the violation but could not

institute proceedings to revoke the offender's probation.      ICAOS

Rule 4.109, supra at 49.   Only Connecticut could initiate

revocation proceedings, and such proceedings could only occur in



that power with offenders sentenced in Massachusetts, where,
unlike in Connecticut, conditions of probation must be ordered
by a judge. See A.L. v. Commonwealth, 402 Mass. 234, 242 (1988)
("it is the function of the sentencing judge to set the
conditions of probation," and it is duty of probation officer to
enforce conditions set by judge).
     11
       There is an exception to this rule whereby Massachusetts
could decline to return an offender who has pending criminal
charges in Massachusetts. ICAOS Rule 5.101-1, supra at 56.
                                                                    14


Connecticut, subject only to a hearing in Massachusetts

establishing probable cause for the violation.     ICAOS Bench

Book, supra at 76.    ICAOS Rule 5.108, supra at 65.   Of course,

if a defendant were to violate a probation condition by

committing a new crime in Massachusetts, the defendant may be

prosecuted for that crime in Massachusetts, but any probation

revocation must take place in Connecticut.12    ICAOS Bench Book,

supra.

     With this background regarding the operation of the

compact, we turn now to the reported questions.

     2.    Question one.   Question one asks "[w]hether the

Massachusetts courts are the appropriate forum for challenging

additional probation conditions imposed on a probationer

transferred to Massachusetts pursuant to [the compact]; and, if

so, what is the proper mechanism for mounting such a challenge."

This question is raised in the context of the commissioner's

somewhat confusing position regarding GPS monitoring of the

defendant.    We characterize it as confusing because, after April

3, 2014, when the judge in Connecticut modified the defendant's

special condition of probation to provide that "GPS monitoring

will be at [the] discretion" of the Massachusetts probation

department -- suggesting that the probation department should

make an individualized determination whether the defendant

     12
          See note 11, supra.
                                                                 15


should be subject to GPS monitoring -- the defendant's probation

officer informed defense counsel on April 23, 2014, that GPS

monitoring of the defendant would continue because it was

mandated by G. L. c. 265, § 47.   The probation officer stated

that, even though the defendant was a juvenile, he had been

convicted as an adult in Connecticut, and all adult sex

offenders were required by § 47 to be monitored by GPS.

However, as earlier noted, when the commissioner on August 22,

2014, denied the defendant's request to be relieved of the

requirement of GPS monitoring, the commissioner gave

individualized reasons for continuing GPS monitoring, but stated

that, when the defendant reached the age of eighteen, GPS

monitoring would become mandatory under § 47.   We need not dwell

on this confusion to determine whether the probation

department's reason for imposing GPS monitoring on the defendant

before he turned eighteen was the claimed statutory mandate of

§ 47 or an individualized determination, because the defendant

has turned eighteen and it is clear that the probation

department has determined that GPS monitoring of the defendant

is now mandated by § 47.   The first question essentially asks

whether the Massachusetts courts are the appropriate forum to

challenge this determination.   We conclude that they are.

    As noted earlier, the Massachusetts probation department

under ICAOS Rule 4.103(a), supra at 42, may add a special
                                                                  16


condition of probation only where that condition is mandated by

law in Massachusetts.   Where a probationer contends that the

special condition added by Massachusetts is not mandated by

Massachusetts law or is unconstitutional, this determination is

appropriately made by a Massachusetts court.   Allowing a

Massachusetts court to make this determination neither impairs

the jurisdiction of the sending State court nor undermines the

judgment or conditions of supervision imposed by the sentencing

court.   If a Massachusetts court were to find that Massachusetts

has improperly added a special condition, Massachusetts

probation authorities would merely be precluded from imposing

the additional condition.   Because the probation condition may

be added by Massachusetts only where it is mandated by

Massachusetts law, a Connecticut court could not eliminate the

condition of the transferred probationer by modifying the

defendant's probation conditions.   Thus, the courts of the

sending State (here, Connecticut) are not the appropriate forum

to determine whether Massachusetts law truly mandates a

probation condition added by Massachusetts.

    In contrast, if a probationer were to challenge whether a

probation condition that was imposed by the sending State was

prohibited by the statutory or constitutional law of the United

States or the sending State, the only appropriate forum to bring

such a claim would be a court in the sending State, because only
                                                                   17


a court in the sending State could modify or eliminate a

condition imposed by the sending State.13

     Having concluded that the defendant is entitled to

challenge in a Massachusetts court the probation department's

determination that GPS monitoring of the defendant is mandated

by § 47 once the defendant reaches the age of eighteen, we now

turn to that issue.   As noted earlier, mandatory GPS monitoring

is in conflict with the special condition imposed by the judge,

which required the probation department in Massachusetts to

exercise its discretion in determining whether to subject the

defendant to GPS monitoring and implicitly required an

individualized evidence-based determination.   Requiring GPS

     13
       If enforcement of a special condition imposed by the
sending State would be in violation of the Constitution or laws
of the receiving State, the receiving State should notify the
sending State under ICAOS Rule 4.103(d), supra at 42, that it
must refuse to enforce the special condition, and the sending
State would then have to decide whether to remove the special
condition or withdraw the transfer request. Interstate
Commission for Adult Offender Supervision, ICAOS Bench Book for
Judges and Court Personnel, at 68 (2014),
http://www.interstatecompact.org/Portals/0/library/publications/
Benchbook.pdf [https://perma.cc/3DFZ-RUEQ]. If a probationer
were to claim that the receiving State erred in enforcing an
illegal special condition, a court in the sending State would be
the most appropriate forum to challenge the lawfulness of the
special condition, because a judge of that court could obviate
the need to determine whether the special condition violated the
Constitution or laws of the receiving State by modifying or
eliminating the special condition. A judge in the receiving
State could not modify or eliminate the special condition; the
judge could only order that the receiving State probation
department not enforce the special condition if the judge were
to find it in violation of the Constitution or laws of the
receiving State.
                                                                  18


monitoring for the duration of supervision without giving a

probation official the discretion, where appropriate, to

discontinue such monitoring constitutes a more restrictive

condition of supervision that must be considered an additional

condition imposed by Massachusetts under the compact.    See

Interstate Commission for Adult Offender Supervision, Advisory

Opinion 1-2015, at 3 (Feb. 12, 2015),

http://www.interstatecompact.org/Portals/0/library/legal/advisor

yopinions/AdvisoryOpinion_1-2015_NC.pdf [https://perma.cc/SZ9Q-

7XRM] (North Carolina statute allowing probationers who violate

conditions of probation to be confined for up to three days in

lieu of revocation proceedings constitutes additional condition

imposed by North Carolina when applied to out-of-State offenders

transferred to North Carolina under compact).   This additional

condition of mandatory GPS monitoring is permissible under the

compact only if Massachusetts law, specifically § 47, requires

that it be imposed on the defendant.

    The commissioner contends that § 47 requires GPS monitoring

for "[a]ny person who is placed on probation for any . . . 'sex

offense,'" and that the defendant is subject to that statutory

requirement once he becomes eighteen because, even though he

committed the sex offense when he was fourteen years old, he was

convicted in Connecticut of a sex offense as an adult.
                                                                  19


     Certainly, if the defendant were an adult when he committed

the Connecticut sex offense, GPS monitoring would be required

under § 47, because he was placed on probation for a "sex

offense," as defined in G. L. c. 6, § 178C, which includes an

indecent assault and battery on a child under the age of

fourteen, in violation of G. L. c. 265, § 13B, "or a like

violation of the laws of another state."    The defendant's

conviction in Connecticut of sexual assault in the third degree,

in violation of Conn. Gen. Stat. § 53a-72a(a) (2015), is a "like

violation" of the Massachusetts crime of indecent assault and

battery.14

     The defendant, although convicted as an adult, was not an

adult when he committed these sexual offenses; he was fourteen


     14
          Conn. Gen. Stat. § 53a-72a(a) (2015) provides in relevant
part:

     "A person is guilty of sexual assault in the third degree
     when such person (1) compels another person to submit to
     sexual contact (A) by the use of force against such other
     person or a third person, or (B) by the threat of use of
     force against such other person or against a third person,
     which reasonably causes such other person to fear physical
     injury to himself or herself or a third person . . . ."

     At the plea hearing, the prosecutor told the judge that the
defendant, when he was fourteen years old, touched a six year
girl who was "a closely related family member . . . in a sexual
manner, . . . holding her hip . . . [and] thrusting his hip and
grinding into her, . . . French kissing her by putting his
tongue in her mouth, also touching her in her genital area
. . . . [T]he child asked him to stop [but] he continued with
the activity. And the child did have a bruise on her arm
afterwards."
                                                                     20


years old.    Because of his age, if these crimes had been

committed in Massachusetts, the Commonwealth could not have

initiated a criminal proceeding against the defendant as an

adult; it could only have proceeded against him as a juvenile.

See G. L. c. 119, § 74.     Therefore, if these crimes had been

committed in Massachusetts, the defendant, at worst, would have

been adjudicated delinquent in the Juvenile Court.15    See id.   If

he were adjudicated delinquent and sentenced to probation, he

would not be subject to mandatory GPS monitoring pursuant to

§ 47.     See Commonwealth v. Hanson H., 464 Mass. 807, 816 (2013)

("mandatory GPS monitoring pursuant to § 47 does not apply to

juveniles who have been adjudicated delinquent").     Therefore, if

the defendant had committed these crimes in Massachusetts, a

Juvenile Court judge in the exercise of discretion could order


     15
       The Commonwealth could not have proceeded against the
defendant as a youthful offender, because he had not previously
had any involvement with the juvenile justice system that would
have resulted in him being committed to the Department of Youth
Services, did not commit a crime involving possession of a
firearm, and did not commit an offense that "involves the
infliction or threat of serious bodily harm in violation of
law." See G. L. c. 119, § 52 (defining "[y]outhful offender").
In Commonwealth v. Quincy Q., 434 Mass. 859, 861 (2001), the
juvenile, when he was between fifteen and sixteen years old and
the victim was between three and five years of age, touched the
victim's vagina on approximately ten occasions and caused the
victim to touch his penis. We concluded that this conduct did
not "involve the infliction or threat of serious bodily harm"
where, as here, there was no evidence of sexual penetration, and
"no evidence that the defendant overtly threatened [the
complainant] or that serious bodily injuries were actually
inflicted." Id. at 863-864.
                                                                   21


GPS monitoring as a condition of his probation, but that

condition would not be mandated by law.     See id. at 816-817.

    Nor, where the crime was committed by a juvenile, would GPS

monitoring become a mandatory condition of probation once the

juvenile reached the age of eighteen.     Where a judge at

sentencing did not order GPS monitoring as a special condition

of a juvenile's probation, a judge in the exercise of discretion

could add this special condition if (and only if) a probationer

were found in violation of the conditions of probation.

Commonwealth v. Goodwin, 458 Mass. 11, 22-23 (2010).     But the

judge could not add this punitive special condition without a

probation violation simply because the offender turned eighteen,

and § 47 cannot reasonably be interpreted to mandate that

result.

    Under ICAOS Rule 4.103(a), supra at 42, Massachusetts, as

the receiving State, could add GPS monitoring as a special

condition of probation only "if that special condition would

have been imposed on the offender if sentence had been imposed

in the receiving state."   Because that special condition would

not necessarily have been imposed in Massachusetts had the

defendant been sentenced in Massachusetts for the crimes he

committed when he was fourteen years old, the Massachusetts

probation department is prohibited from imposing GPS monitoring

as a mandatory condition of probation.    Rather, as required by
                                                                    22


the judge's order on April 3, 2014, GPS monitoring may be

ordered only at the discretion of the Massachusetts probation

department, based on an individualized determination.      We

therefore remand this matter to the single justice, who shall

direct the commissioner to make an individualized determination

in the exercise of his discretion whether to subject the

defendant to GPS monitoring.

    Having answered the reported question and resolved the

underlying issue, we now turn to the second part of that

question:   "what is the proper mechanism for mounting such a

challenge?"   We conclude that the proper mechanism is a

complaint for declaratory judgment.   A declaratory judgment

action filed pursuant to G. L. c. 231A and Mass. R. Civ. P. 57,

365 Mass. 826 (1974), will allow a court to determine whether an

additional special condition is mandated by Massachusetts law

and whether such a condition is constitutional.    In the future,

an offender supervised in Massachusetts pursuant to the compact

should utilize that procedure to adjudicate his or her

challenge; the existence of this alternative procedure

forecloses extraordinary relief from this court.    See Hicks v.

Commissioner of Correction, 425 Mass. 1014, 1014-1015 (1997).

We addressed the substantive claims raised by the defendant in

this case under G. L. c. 211, § 3, because the proper procedure

had not been clearly established and the single justice reserved
                                                                    23


and reported the case to this Court.    See Goodwin, 458 Mass. at

14-15, quoting Martin v. Commonwealth, 451 Mass. 113, 119 (2008)

("[w]here the single justice has, in [her] discretion, reserved

and reported the case to the full court, we grant full appellate

review of the issues reported").

    3.   Questions two and three.    Questions two and three ask

whether a transferee probationer is entitled to actual notice of

mandatory GPS monitoring pursuant to § 47 from the sentencing

judge, and whether mandatory GPS monitoring for crimes committed

as a minor constitutes cruel and unusual punishment, where the

minor was convicted as an adult in another jurisdiction.

Because we have concluded that the defendant is not subject to

mandatory GPS monitoring in Massachusetts under the compact,

these questions are moot, and we decline to answer them.

    4.   Question four.   The fourth question asks "[w]hether the

[commissioner's] Policy on the Issuance of Travel Permits

[(travel policy)] is ultra vires; and, if not, whether the

application of that policy to the petitioner violated his right

to interstate travel."    We examine this question in the context

of the circumstances of this case.   As earlier noted, at

sentencing, the judge authorized the Connecticut probation

department to add any other conditions it deemed appropriate.

It is a general condition of probation in Connecticut that a

probationer may not leave the State without permission from a
                                                                  24


probation officer.16    When probation was transferred to

Massachusetts, the defendant remained subject to this probation

condition that he not leave the State without his probation

officer's permission.

     Under ICAOS Rule 4.101, supra at 40, a receiving State

(here, Massachusetts) "shall supervise an offender transferred

under the [compact] in a manner . . . consistent with the

supervision of other similar offenders sentenced in the

receiving state."   Therefore, with respect to granting

permission for interstate travel, the Massachusetts probation

department must treat a transferred probationer as it would a

probationer sentenced in Massachusetts.    The commissioner has

given effect to that condition by applying a policy that

regulates the exercise of discretion to grant travel permits.

The travel policy issued on January 11, 2012, by the then acting

commissioner treats all probationers who are under supervision

for sex offenses and all probationers with a special condition

of GPS monitoring the same, whether transferred or not:     the

probation department shall not authorize the issuance of travel




     16
       A substantially identical provision is a general
condition of probation in Massachusetts. See commentary to Rule
4, District/Municipal Courts Rules for Probation Violation
Proceedings, Mass. Ann. Laws Court Rules, at 86 (LexisNexis
2015) (identifying failure to "obtain permission to leave the
Commonwealth" as violation of general probation conditions).
                                                                  25


permits to them.17   The only way they can obtain a travel permit

is to request their sentencing judge or, where that judge is

unavailable, another judge in that trial court department, to

order the issuance of a travel permit.    For a transferred

probationer, that means filing a motion to modify the conditions

of probation in the defendant's criminal case in the sending

State.    The defendant sought such relief when he moved to modify

the conditions of his probation, but that part of the request

was not granted by the judge in his order of April 3, 2014.

Nothing bars the defendant from again seeking such relief in

Connecticut, which retains jurisdiction over the defendant.

Such relief may not be sought in Massachusetts.

     The defendant contends that the commissioner, by issuing a

policy that prohibits certain categories of probationers from

being issued a travel permit by a probation officer, has imposed

an additional special condition forbidding interstate travel

that is not mandated by law and, therefore, is ultra vires.     We

disagree for two reasons.    First, the general condition of

probation imposed on the defendant in Connecticut provided that

he could not "leave the State of Connecticut without permission

     17
        In his letter to the defendant, the commissioner
articulated the reasons for not granting travel permits to
probationers who are being supervised for sex offenses,
including the difficulty of monitoring the probationer while out
of State, of verifying the address where the offender will be
staying, and of ensuring that the probationer will not encounter
minors.
                                                                    26


from the Probation Officer."    This condition does not appear to

prohibit a probation department from issuing a travel policy

governing the grant or denial of permission for out-of-State

travel.   Thus, the application of the policy in Massachusetts is

not inconsistent with the condition imposed in Connecticut.

Second, in the letter from the commissioner to the defendant,

the commissioner stated that he "remain[ed] unconvinced that

[the defendant] presents a viable justification to make an

exception to the [t]ravel [p]olicy in [the defendant's] case,"

which indicates that the commissioner retained the discretion to

make an exception from his travel policy where the circumstances

warranted.18

     The defendant further argues that the travel restriction

applied by the Massachusetts probation department violates his

right to interstate travel.19   Where the travel restriction was

imposed as a condition of probation by the sending State (here,

Connecticut) and was not an additional condition imposed by the


     18
       Also, it is significant that the defendant has recourse
to the sentencing judge in Connecticut, who can modify the
conditions of probation if the judge believes the application of
the travel policy to be unnecessarily restrictive.
     19
       Although the defendant cites arts. 1, 10, and 12 of the
Massachusetts Declaration of Rights in addition to the
Fourteenth Amendment to the United States Constitution in
support of his argument that the travel restriction is
unconstitutional, he does not argue that his right of interstate
travel under the Massachusetts Constitution is broader than his
rights under the United States Constitution.
                                                                  27


receiving State, we conclude that the appropriate forum for such

a constitutional claim is Connecticut, where it may be combined

with the defendant's nonconstitutional claims for modification

of this probation condition, and where the court, in its

discretion, may avoid the constitutional question by modifying

the condition.   Therefore, we decline to answer the fourth

reported question; the appropriate forum to answer this question

is a court in the sending State, Connecticut.

    Conclusion.     In summary, we conclude that probationers

whose supervision is transferred to Massachusetts pursuant to

the compact may challenge a special condition of probation that

was added by Massachusetts through a declaratory judgment action

in a Massachusetts court, where they may claim that the

additional special condition is not mandated by law or is

unconstitutional.   We also conclude that the Massachusetts

probation department may not add mandatory GPS monitoring as a

special condition of probation for this probationer because it

is not required by G. L. c. 265, § 47.   Finally, we conclude

that the travel restriction applied by the Massachusetts

probation department to the defendant was not an additional

condition of probation, and that the appropriate forum to

challenge the constitutionality of the application of that

condition is a Connecticut court, where it may be combined with

the defendant's nonconstitutional claims for modification of
                                                                  28


this probation condition.   We remand this matter to the single

justice for further proceedings consistent with this opinion.

                                   So ordered.
