The juvenile was adjudicated both a youthful offender and a delinquent juvenile as the result of a single sexual assault. A Juvenile Court judge ordered the juvenile to register as a sex offender and to submit to global positioning system (GPS) monitoring, concluding that both consequences, under the relevant statutes, were mandatory. The juvenile argues that this conclusion was error. He argues first that the pertinent section of the sex offender registration statute, G. L. c. 6, § 178E (f), required the judge to make an individualized determination whether the juvenile must register as a sex offender because he was not "sentenced to immediate confinement" within the meaning of the statute. He also argues that the GPS monitoring statute, G. L. c. 265, § 47, as interpreted by this court in Commonwealth v. Hanson H., 464 Mass. 807 (2013), does not require youthful offenders to submit to GPS monitoring. We agree with the juvenile on both points. Accordingly, we vacate the judge's decision.
Background. 1. Facts.
The juvenile initially denied any wrongdoing. The victim later described that the juvenile had touched her genitals and chest area, made her touch his genitals, and penetrated her labia with his penis in a way that caused her pain.
2. Prosecution, plea, and sentencing. Two juvenile delinquency complaints issued, charging the juvenile with one count of indecent assault and battery on a child under fourteen, G. L. c. 265, § 13B, and one count of rape of a child with force, G. L. c. 265, § 22A. Three youthful offender indictments also issued, charging the juvenile with one count of rape of a child with force, G. L. c. 265, § 22A, and two counts of aggravated rape of a child, G. L. c. 265, § 23A.
In January, 2015, all charges were resolved pursuant to a plea agreement. The juvenile admitted to sufficient facts to warrant an
3. Registration and GPS monitoring. After the plea and sentencing, the juvenile filed two motions in which he sought relief from mandatory sex offender registration under G. L. c. 6, § 178E (f), and relief from mandatory GPS monitoring under G. L. c. 265, § 47, and this court's opinion in Hanson H., 464 Mass. 807. In February, 2015, the judge ruled that she had discretion to relieve the juvenile of both the registration and the GPS monitoring requirements, and ordered a risk assessment evaluation to enable her to determine whether either, or both, should apply to the juvenile. The Commonwealth moved for reconsideration, which the juvenile opposed. The judge then issued a revised decision in June, 2015, in which she reversed her position, ultimately concluding that the relevant statutes permitted her no discretion to relieve the juvenile from sex offender registration or GPS monitoring.
4. Juvenile's appeal. The juvenile appealed from the judge's revised decision.
Discussion. 1. Jurisdiction. The Commonwealth first argues that the juvenile's appeal regarding mandatory registration is not properly before the court because he has not exhausted all administrative remedies or sought relief under G. L. c. 211, § 3.
Nonetheless, it will serve a substantial public interest to resolve the questions presented by the juvenile's appeal, these questions are likely to arise again, and the case has been fully briefed and argued before the court. Accordingly, we will answer the questions in this instance. See Hanson H., 464 Mass. at 808 n.2 (deciding merits of appeal despite mootness, when issue raised was of significant public interest, fully briefed, and very likely to arise again in similar circumstances, yet evade review). See also Commonwealth v. Doe, 420 Mass. 142, 143 (1995), overruled on other grounds by Commonwealth v. Pon, 469 Mass. 296 (2014) (exercising discretion to comment on issues presented despite fact that report from lower court was not properly before court); Cobb v. Cobb, 406 Mass. 21, 24 n.2 (1989) (citing authority provided by G. L. c. 211, § 3, to answer improperly reported questions).
2. Registration as a sex offender. The first question presented is whether G. L. c. 6, § 178E (f) (§ 178E [f]),
Section 178E (f) permits a sentencing judge, in certain sex
Given the language of § 178E (f), the narrow question we confront is whether the juvenile in this case, who has been committed to DYS both as a youthful offender and as a delinquent juvenile, has been "sentenced to immediate confinement" within the meaning of § 178E (f).
a. Meaning of "sentenced to immediate confinement." We begin with the plain meaning of the statutory language. See Commonwealth v. Mogelinski, 466 Mass. 627, 633 (2013), S.C., 473 Mass. 164 (2015). The terms "sentenced," "confinement," and "immediate confinement" are not defined within the sex offender registration statute. See G. L. c. 6, § 178C (definitions applicable to §§ 178C to 178P). As a result, we look to dictionary definitions as a guide to a term's plain or ordinary meaning. See, e.g., Commonwealth v. Palmer, 464 Mass. 773, 778-779 (2013).
The term "confinement" is defined, in a legal context, to mean "[t]he act of imprisoning or restraining someone; the quality, state, or condition of being imprisoned or restrained." Black's
A "sentence" is "[t]he judgment that a court formally pronounces after finding a criminal defendant guilty" or "the punishment imposed on a criminal wrongdoer." Black's Law Dictionary 1569 (10th ed. 2014). Similarly, a "sentence" can be "a decision or judicial determination of a court or tribunal"; "the order by which a court or judge imposes punishment or penalty upon a person found guilty"; "to decree, decide, or announce judicially"; or "to prescribe the penalty or punishment of." Webster's Third New International Dictionary 2068 (1993).
Read together, these definitions indicate that a "sentence" to "confinement" ordinarily will involve a court or judge imposing, as a consequence of or penalty for an illegal act, a form of spatial restraint within defined and obvious physical boundaries, including, as one example, incarceration.
b. Dispositional options for youthful offenders and delinquent juveniles. To understand whether youthful offenders and delinquent
With respect to a delinquent juvenile, a Juvenile Court judge also has a range of dispositional options, including (1) commitment to DYS, (2) placement of the juvenile in the care of a probation officer, and (3) placement of the case on file. G. L. c. 119, § 58, second par. The judge has broad discretion to select among these options, although the statute does not require the same sort of presentence hearing as it does for youthful offenders. See R.L. Ireland, Juvenile Law § 1.62 (2d ed. 2006); G. L. c. 119, § 58, second and fourth pars.
Two additional observations are in order with respect to the consequences of a commitment to DYS. First, a separate statute describes the various ways that DYS may treat a person committed to its custody. See G. L. c. 120, § 6.
c. Whether commitment to DYS constitutes being "sentenced to immediate confinement." We now return to the interpretive question that is at issue here: whether a commitment to DYS constitutes being "sentenced to immediate confinement" under § 178E (f).
The juvenile argues that a commitment to DYS does not constitute being "sentenced to immediate confinement" for purposes of § 178E (f). Under this interpretation, no delinquent juvenile can be "sentenced to immediate confinement," because a commitment to DYS is the most severe sentence a delinquent
On the other hand, the Commonwealth proposes that a commitment to DYS always constitutes "immediate confinement" for the purposes of § 178E (f). This interpretation, too, is problematic insofar as it conflicts with the plain language and structure of G. L. c. 120, § 6, which describes the power of DYS, with respect to a juvenile committed to it, to "[p]ermit [the juvenile] his liberty under supervision and upon such conditions as [DYS] believes conducive to law-abiding conduct." G. L. c. 120, § 6 (a). In other words, the Commonwealth would have us treat even those juveniles who are, upon commitment to DYS, allowed their "liberty under supervision" as having been "sentenced to immediate confinement." That interpretation also makes little sense insofar as it would automatically require such a juvenile to register as a sex offender even though § 178E (f) expressly directs a judge to determine in the first instance whether an adult whom a judge has sentenced to probation — a form of "liberty under supervision" — shall be required to register as a sex offender. See Commonwealth v. Dalton, 467 Mass. 555, 558 (2014) ("According to the plain language of § 178E [f], where a judge sentences a defendant to a term of probation rather than a sentence of `immediate confinement,' the judge for many defendants has the discretion" permitted by § 178E [f]).
Furthermore, it is not necessarily clear that a commitment to DYS constitutes a "sentence" in the conventional sense. As the definitions cited supra indicate, ordinarily a "sentence" results from a judge imposing a particular penalty on an offender. But in the case of juveniles committed to DYS, the Juvenile Court judge
What we are left with, then, is a statute whose plain language and structure create a vexing choice. As just explained, if we consider a judge's sentence of commitment to DYS as a sentence to immediate confinement, we must ignore parts of G. L. c. 119, § 58, and G. L. c. 120, § 6; if, on the other hand, we do not consider a commitment to be a sentence to immediate confinement, our interpretation necessitates ignoring other parts of G. L. c. 119, § 58, and G. L. c. 120, § 6, and disregarding as well the reality that when a judge commits delinquent juveniles and youthful offenders to DYS, the judge has essentially no control over the conditions that DYS imposes. The parties have not directed us to any legislative history, and we have located none, to help resolve this tension between the two alternatives.
However, "[u]nder the rule of lenity, `if we find that the statute is ambiguous or are unable to ascertain the intent of the Legislature, the defendant is entitled to the benefit of any rational doubt.'" Commonwealth v. Richardson, 469 Mass. 248, 254 (2014), quoting Commonwealth v. Constantino, 443 Mass. 521, 524 (2005). We have applied the rule of lenity "to sentencing as well as substantive provisions." Richardson, supra at 254, quoting Commonwealth v. Gagnon, 387 Mass. 567, 569 (1982), cert. denied, 464 U.S. 815 (1983). Of particular pertinence here, we also have invoked the rule in interpreting § 178E (f). See Ventura, 465 Mass. at 212.
Independent of the rule of lenity, we have said that interpreting an ambiguous statute against a juvenile would conflict with the statutory command of G. L. c. 119, § 53. See Hanson H., 464 Mass. at 813-814. Section 53 requires a liberal construction of the juvenile justice laws in order to ensure that juveniles who commit offenses are "treated, not as criminals, but as children in need of aid, encouragement, and guidance."
These reasons persuade us that it is appropriate to construe the ambiguous language in § 178E (f) at issue to mean that where a Juvenile Court judge commits a juvenile on a delinquency complaint or a youthful offender indictment to DYS as a disposition on a sex offense, that is not a "sentence to immediate confinement" within the meaning of the statute.
Again, we review this question of statutory interpretation de novo. See Ventura, 465 Mass. at 208. We conclude the juvenile's reading of the statute is correct.
a. The holding of the Hanson H. case. In the Hanson H. case, the court observed that neither the plain language of § 47
The court in the Hanson H. case specifically limited its holding "to juveniles placed on probation as a result of being adjudicated delinquent on a complaint." Id. at 808 n.1. We pointedly did not address whether § 47 applies to juveniles placed on probation after being adjudicated a youthful offender. Id. That issue arises in this case.
b. Application of Hanson H. principles. We see no compelling reason why the principles articulated in the Hanson H. case should not apply equally to youthful offenders, and therefore reach the same conclusion as we did in the Hanson H. case: the Legislature did not intend to require GPS monitoring on youthful offender probationers in the absence of an individualized determination by the sentencing judge that such a condition would be appropriate.
This conclusion is consonant with the command of § 53 — that, as far as practicable, we must treat juveniles "not as criminals, but as children in need of aid, encouragement and guidance." Indeed, § 53 includes both youthful offenders and delinquent juveniles within its ambit. See G. L. c. 119, §§ 53, 54, 58. Thus, the force of the command in § 53 is not blunted merely because we are now contemplating youthful offenders, as opposed to delinquent juveniles. See Commonwealth v. Anderson, 461 Mass. 616, 630, cert. denied, 133 S.Ct. 433 (2012) (youthful offenders "not exclude[d] ... from the dictates of § 53").
Additionally, at the heart of the youthful offender scheme is a "logical continuum" of culpability that spans the gap between delinquent juveniles and adult criminals. Commonwealth v. Connor C., 432 Mass. 635, 645-646 (2000), discussing G. L. c. 119, § 58. As discussed above, when a juvenile is adjudicated as a youthful offender, the judge, at sentencing, can treat the individual more like an adult (a sentence as provided by law), more like a delinquent juvenile (commitment to DYS), or somewhere in between (a combination sentence), G. L. c. 119, § 58, third par., and must conduct a sentencing recommendation hearing that takes into account a host of case-specific factors, G. L. c. 119,
The Commonwealth presents, in essence, two arguments to the contrary. We find neither persuasive.
First, the Commonwealth argues that the use of the terms "probationer" and "offender" in § 47 supports its reading of the law because, under G. L. c. 119, § 58, a youthful offender's sentence may include a period of probation supervised by the adult probation department, as opposed to the Juvenile Court probation department, once the youthful offender attains the age of twenty-one. (Indeed, such a result is contemplated by the combination sentence imposed on the juvenile in this case.) But this argument has little force where the youthful offender in fact faces no period of adult probation (i.e., when the youthful offender is sentenced only to a commitment to DYS). See G. L. c. 119, § 58 (c). Even if a youthful offender does face a period of adult probation, the Commonwealth's argument is unavailing for the reasons articulated in Hanson H., where we observed that much of § 47 "suggests that the Legislature understood that the probationers subject to mandatory GPS monitoring would be adults," not juveniles. Hanson H., 464 Mass. at 810.
Second, the Commonwealth notes that the Youthful Offender Act, St. 1996, c. 200, was passed in response to societal concerns about violent crimes committed by juveniles and, accordingly, created the youthful offender category of adjudications in which some of the protections and privileges afforded to delinquent juveniles did not apply. See Commonwealth v. Clint C., 430 Mass. 219, 222-223 (1999). The implication of this development, according to the Commonwealth, is that youthful offenders are categorically more threatening to public safety than delinquent juveniles, and therefore the rationale of Hanson H. should not apply to youthful offenders.
The argument fails. Although youthful offenders are not afforded some of the protections provided to delinquent juveniles,
Conclusion. For the foregoing reasons, the Juvenile Court judge's decision of June 5, 2015, is vacated. The case is remanded for further proceedings consistent with this opinion.