Commonwealth v. Newberry ( 2019 )


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    SJC-12575
    COMMONWEALTH   vs.   DENEISHA D. NEWBERRY.
    Suffolk.       February 5, 2019. - September 18, 2019.
    Present:    Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
    & Kafker, JJ.
    District Court, Pretrial diversion, Arraignment.     Practice,
    Criminal, Arraignment.
    Civil action commenced in the Supreme Judicial Court for
    the county of Suffolk on July 9, 2018.
    The case was reported by Lowy, J.
    John P. Zanini, Assistant District Attorney (Cailin M.
    Campbell, Assistant District Attorney, also present) for the
    Commonwealth.
    Sarah M. Joss, Special Assistant Attorney General
    (Nickeisha J. Davidson also present) for Massachusetts Probation
    Service.
    Maureen Stanton Flaherty for the respondent.
    Dana Alan Curhan, for Committee for Public Counsel Services
    & another, amici curiae, submitted a brief.
    LENK, J.     The pretrial diversion statute, G. L. c. 276A,
    allows certain first-time offenders, who are charged with
    specified offenses in the District Court or the Boston Municipal
    2
    Court, to seek pretrial diversion to a treatment program rather
    than proceed on the trial track.   If, after screening, the
    probation service determines that the individual is eligible for
    pretrial diversion, and the program to which the probation
    service refers the individual for assessment determines that the
    person would benefit from participation in the program, a judge
    has discretion to stay or continue the criminal proceedings and
    assign the individual to a diversion program.   See G. L.
    c. 276A, §§ 2, 3, 5.   If the person successfully completes the
    program, the judge may dismiss the criminal charges.   G. L.
    c. 276A, §§ 5, 7.
    In this matter, we consider two issues arising under the
    pretrial diversion statute.   First, whether the pretrial
    diversion statute, G. L. c. 276A, § 3, requires, at the
    Commonwealth's request, that a judge arraign a defendant before
    he or she may take advantage of a pretrial diversion program.
    Second, whether, during the statutory screening period, see
    G. L. c. 276A, § 3, or thereafter if the Commonwealth does not
    seek arraignment, a judge has authority to order conditions of
    release, including global position system (GPS) monitoring or
    drug screening by the probation service.
    As to the first question, we conclude that, under G. L.
    c. 276A, § 3, a judge may not decline to arraign an adult
    defendant, over the Commonwealth's objection, and instead direct
    3
    the defendant to a pretrial diversion program.     Although other
    pretrial diversion programs statutorily mandate that a judge may
    not arraign an eligible defendant before that defendant has an
    opportunity to complete a pretrial diversion program, the
    language of G. L. c. 276A, § 3, requires arraignment, at the
    Commonwealth's request, before a defendant can participate in a
    pretrial diversion program.   Compare G. L. c. 12, § 34, G. L.
    c. 119, § 54A, and G. L. c. 276B, § 2, with G. L. c. 276A, § 3.
    As to the second question, we conclude that, whether during
    the screening period prior to arraignment, see G. L. c. 276A,
    § 3, or thereafter if the Commonwealth does not seek
    arraignment, a judge may order conditions of release.     In
    ordering those conditions, should a judge determine that
    supervision by the probation service is necessary, the judge has
    authority to order those services.
    Background.    The essential facts are undisputed.    In
    November 2017, the defendant was charged in the Boston Municipal
    Court with assault and battery, G. L. c. 265, § 13A (a), after
    an alleged altercation with her boyfriend's former girlfriend.
    At her initial appearance before a judge of that court, the
    defendant moved to continue her arraignment so that she could be
    assessed for eligibility for pretrial diversion.    Over the
    Commonwealth's objection, the judge continued the arraignment
    for two weeks.   The judge also ordered, as a condition of
    4
    release, that the defendant stay away from the alleged victim;
    the Commonwealth did not object to the condition.   At the next
    hearing, the judge determined that the defendant was eligible
    for pretrial diversion and continued the case for about ninety
    days, pursuant to G. L. c. 276A, § 5.   The Commonwealth did not
    object to the defendant's placement in a pretrial diversion
    program, but again objected to the lack of arraignment.
    Thereafter, the matter was continued a number of times, for
    reasons, such as court scheduling, that are unrelated to the
    issues before us.   Arguing that the victim had accused the
    defendant of two instances of harassment after pretrial
    diversion had begun, the Commonwealth sought at several of those
    hearings, before different judges, to have the defendant removed
    from pretrial diversion and the case returned to the trial list.
    The Commonwealth also moved to arraign the defendant.     The
    defendant requested that GPS monitoring be imposed, in order to
    allow her to prove that she had not been in contact with the
    victim.   The Commonwealth did not oppose the imposition of GPS
    monitoring, and a judge allowed the request.   That judge also
    scheduled an evidentiary hearing to determine whether the
    defendant indeed had been in contact with the alleged victim, in
    violation of the terms of her pretrial diversion; the judge
    5
    commented that he would not arraign the defendant until he heard
    from the victim.1
    The probation service thereafter appeared ex parte before
    the judge, arguing that it had no authority to conduct GPS
    monitoring of the defendant, because she had not been arraigned;
    the judge again ordered that GPS be imposed.     While the
    evidentiary hearing was pending, the Commonwealth filed a
    petition for extraordinary relief, pursuant to G. L. c. 211,
    § 3, in the county court.    The single justice reserved and
    reported the matter to the full court.
    Discussion.    1.   Statutory framework.   The pretrial
    diversion statute, G. L. c. 276A, provides judges of the
    District Court and the Boston Municipal Court Departments
    authority to divert eligible individuals to a program of
    1 The posture of this case is somewhat sui generis. At the
    time of the offense, the defendant was twenty-eight years old
    and apparently not eligible for pretrial diversion under the
    then-existing version of the statute, which was intended for
    youthful offenders. Nonetheless, the judge had discretion to
    refer the defendant for assessment by the probation service,
    even if she appeared preliminarily to be ineligible. See G. L.
    c. 276A, § 3. The Commonwealth did not raise any objection to
    the defendant being placed in a pretrial diversion program; it
    objected only to the lack of arraignment at any point in the
    proceedings. By the time the defendant had been evaluated and
    determined to be eligible to participate in a specific program,
    the pretrial diversion statute had changed to include first-time
    adult offenders. See St. 2018, c. 69, § 197. The parties'
    briefs address the statute as it is now in effect, and do not
    mention any question of ineligibility due to the defendant's age
    at the time of the alleged offense.
    6
    community supervision and services rather than subject them to
    the criminal trial process.    See G. L. c. 276A, § 2.   The
    statute "originally was intended to provide rehabilitation to
    those whose criminal habits had not become 'fixed'" (citation
    omitted).   See Commonwealth v. Morgan, 
    476 Mass. 768
    , 779
    (2017).   When it was first enacted in 1974, the statute applied
    only to young adults between the ages of eighteen and twenty-
    two; in 2012, it was amended to include veterans and active duty
    members of the military.    See G. L. c. 276A, §§ 10, 11;
    St. 2012, c. 108, § 16.
    In 2018, as part of the comprehensive criminal justice
    reform act, the Legislature again amended the statute, this time
    to eliminate any age restrictions, making it applicable to all
    first-time offenders who are charged with offenses for which a
    term of imprisonment may be imposed by a judge of the District
    Court or the Boston Municipal Court, and who meet other
    eligibility criteria.2    See G. L. c. 276A, § 2, as amended
    2 The pretrial diversion statute in its current form
    includes ten sections. See St. 2018, c. 69, §§ 200, 201.
    General Laws c. 276A, § 1, contains applicable definitions.
    Section 2 describes the jurisdiction of the court to divert
    offenders for certain offenses that may be punished by a term of
    incarceration of no more than five years. Section 3 defines the
    screening procedures for admission to a diversion program.
    Section 4 describes those defendants who are categorically
    ineligible for diversion, including those charged with violent
    crimes against the person, crimes by public officials, and
    certain sex offenses. Section 5 defines the required assessment
    and recommendation for pretrial diversion, to be provided to the
    7
    through St. 2018, c. 69, § 197.3   Also as part of the criminal
    justice reform act, see St. 2018, c. 69, the Legislature adopted
    separate provisions establishing juvenile pretrial diversion
    (G. L. c. 119, § 54A, inserted by St. 2018, c. 69, § 75);
    pretrial diversion for those with mental health and substance
    abuse issues (G. L. c. 12, § 34, inserted by St. 2018, c. 69,
    § 16); and community-based restorative justice diversion
    programs, with the consent of the district attorney and the
    victims (G. L. c. 276B, § 2, inserted by St. 2018, c. 69,
    § 202).
    judge at the conclusion of the assessment period, and the final
    determination and stay of proceedings if the judge, in his or
    her sole discretion, after having received a recommendation from
    the prosecutor, determines that diversion would be appropriate.
    Section 6 provides procedures for handling violations of the
    terms of a program. Section 7 covers the process for dismissing
    charges following the successful completion of a program.
    Sections 10 and 11 concern diversions and continuances for
    veterans and active duty military personnel. Section 12
    instructs that police officers and prosecutors have authority to
    divert an offender into a program that they operate.
    3 Under G. L. c. 276A, § 2, a defendant is eligible for
    pretrial diversion if he or she is charged with an offense for
    which a term of imprisonment may be imposed by a judge of the
    District Court or Boston Municipal Court; has not previously
    been convicted of a violation of any law, in the Commonwealth or
    elsewhere; does not have any outstanding warrants, continuances,
    appeals, or criminal cases pending; and would benefit from
    participation in a program.
    8
    General Laws c. 276A, § 3, is the sole applicable section
    of the pretrial diversion statute that mentions "arraignment."4
    It defines the procedures to be used in determining whether a
    defendant is eligible and would benefit from a pretrial
    diversion program:
    "The probation officers of a district or municipal court,
    or an official designee of such a probation officer, when
    gathering information in accordance with [G. L. c. 276,
    § 85], shall also screen each defendant for the purpose of
    enabling the judge at arraignment to consider the
    eligibility of the defendant for diversion to a program.
    The probation officers or an official designee shall also
    confirm the defendant's status as a veteran or as a person
    on active service in the armed forces of the United States
    and shall determine if the defendant has previously been
    diverted pursuant to clause (ii) of [§ 4 (c)].
    "Any defendant who is qualified for consideration for
    diversion to a program may, at his arraignment, be afforded
    a fourteen-day continuance for assessment by the personnel
    of a program to determine if he would benefit from such
    program.
    "A defendant who is determined to be a veteran or a person
    on active service in the armed forces of the United States
    and who is qualified for consideration to diversion to a
    program may, at arraignment, be afforded a [thirty]-day
    continuance for assessment by the United States Department
    of Veteran's Affairs or another state or federal agency
    with suitable knowledge and experience of veterans affairs
    to determine if the veteran or person on active service
    would benefit from such program.
    4 General Laws c. 276A, § 10, which also mentions
    arraignment, applies only to veterans and active duty service
    members whose status must be verified by the probation service,
    at or prior to arraignment, in order to be eligible for pretrial
    diversion. The statute allows a thirty-day assessment period
    during which the probation service must verify the individual's
    status. See G. L. c. 276, §§ 3, 10.
    9
    "If a defendant chooses to accept the offer of a
    continuance for the purpose of such an assessment, he shall
    so notify the judge at arraignment. Upon receipt of such
    notification, the judge shall grant a fourteen-day
    continuance. The judge, through the probation office or
    its official designee, shall direct the defendant to a
    program and shall inform said program of such action.
    "The judge may, in his discretion, grant a defendant who is
    preliminarily determined not to be eligible because of a
    failure to satisfy all the requirements of section two, a
    like fourteen-day continuance for assessment. In arriving
    at such a decision the opinion of the prosecution should be
    taken into consideration. Such a continuance may be
    granted upon the judge's own initiative or upon request by
    the defendant." (Emphases added.)
    Thus, a possibly qualified defendant "may, at his [or her]
    arraignment, be afforded a fourteen-day continuance" for
    assessment to determine whether he or she would benefit from
    participation in a particular program (emphasis added).       See
    G. L. c. 276A, § 3.       If a defendant qualifies for a program and
    consents to participate in it, his or her "criminal
    proceedings . . . shall be stayed for a period of ninety days"
    so that the defendant can complete the program.5      G. L. c. 276A,
    § 5.       Upon successful completion of an assigned program, a judge
    may "dismiss the original charges pending against the
    A stay may be granted only if a defendant "consents in
    5
    writing to the terms and conditions of the stay of proceedings
    and knowingly executes a waiver of his [or her] right to a
    speedy trial." G. L. c. 276A, § 5.
    10
    defendant," resulting in no criminal conviction on the
    defendant's record.6   See G. L. c. 276A, § 7.
    2.   Statutory construction.   We consider first whether the
    pretrial diversion statute requires that, on the Commonwealth's
    motion, a judge arraign a defendant before he or she may take
    advantage of a pretrial diversion program.    In the
    Commonwealth's view, requiring arraignment on the prosecutor's
    request is consistent with the statutory purpose; it ensures
    that pretrial diversion is available only to those adults who
    have no prior involvement in the criminal justice system,
    information that generally becomes available at arraignment.7
    The defendant argues that arraignment before diversion is
    inconsistent with the statutory purpose of allowing certain
    first-time offenders to avoid the considerable negative
    consequences that follow from having a criminal record.     She
    argues that even a dismissed charge can result in difficulties
    6 If a defendant has not successfully completed a pretrial
    diversion program after an initial ninety-day period, the
    proceedings may be stayed or continued for an additional ninety
    days, to enable the defendant to do so. See G. L. c. 276A, § 7.
    7 The Commonwealth argues also that the judge's decision not
    to arraign the defendant in this case constituted a violation of
    the separation of powers, as set forth in art. 30 of the
    Massachusetts Declaration of Rights. Given our result, we need
    not reach this argument. Cf. Commonwealth v. Jones, 
    471 Mass. 138
    , 143 (2015) (statutes are to be construed "where fairly
    possible so as to avoid constitutional questions" [citation
    omitted]).
    11
    in education, housing, and employment.    The defendant maintains
    that diverting offenders prior to arraignment is the best way to
    ensure, as the Legislature intended, that a first-time offender
    does not face these significant collateral consequences.       See
    Commonwealth v. Humberto H., 
    466 Mass. 562
    , 574-575 (2013).
    As with all matters of statutory construction, our goal in
    construing the pretrial diversion statute is to ascertain and
    effectuate the intent of the Legislature.    See Commonwealth v.
    Curran, 
    478 Mass. 630
    , 633 (2018).    "[C]onsistent with our
    general practice of statutory interpretation, we look first to
    the language of the statute because it is 'the principal source
    of insight' into the intent of the Legislature."    Sisson v.
    Lhowe, 
    460 Mass. 705
    , 708 (2011).    See 
    Morgan, 476 Mass. at 777
    ,
    citing Commonwealth v. Peterson, 
    476 Mass. 163
    , 167 (2017) ("The
    plain language of the statute, read as a whole, provides the
    primary insight into that intent").    Where the plain language is
    unclear or ambiguous, we strive to discern the legislative
    intent in enacting a statute "from all its parts and from the
    subject matter to which it relates, and must interpret the
    statute so as to render the legislation effective, consonant
    with sound reason and common sense."     See Seideman v. Newton,
    
    452 Mass. 472
    , 477 (2008).
    3.   Meaning of "at arraignment" in G. L. c. 276A, § 3.
    General Laws c. 276A, § 3, requires that the probation service
    12
    screen "each" defendant "for the purpose of enabling the judge
    at arraignment to consider the eligibility of the defendant for
    diversion to a program" (emphasis added).   "Any defendant who is
    qualified for consideration for diversion to a program may, at
    his [or her] arraignment, be afforded a fourteen-day continuance
    for assessment by the personnel of a program to determine if he
    [or she] would benefit from such program" (emphasis added).     
    Id. If a
    defendant chooses to be assessed for a pretrial diversion
    program, that defendant "shall so notify the judge at
    arraignment" (emphasis added).   
    Id. Starting from
    this plain language, and considering the
    words in their "ordinary and approved usage" (citation omitted),
    see Ciani v. MacGrath, 
    481 Mass. 174
    , 178 (2019), we understand
    the term "at arraignment" in the pretrial diversion statute to
    mean that the pretrial diversion process begins when a defendant
    is called to answer the charges against him or her for the first
    time, that is, at the time and place of arraignment.
    Although the statute has been amended a number of times
    since it was first enacted in 1974, the phrase "at arraignment"
    in this section of the statute has remained unchanged.     Indeed,
    in 2018, in conjunction with the removal of any age restriction,
    and the addition of the three new pretrial diversion programs
    established by the criminal justice reform act, a fourth
    occurrence of the phrase "at arraignment" was added to § 3.     See
    13
    G. L. c. 276A, § 3, as amended by St. 2018, c. 218, §§ 33, 34;
    St. 2018, c. 69, §§ 196-201.   Thus, in contrast to all the new
    pretrial diversion programs, when the Legislature expanded the
    statute so that it was applicable to all adults, the Legislature
    continued to use the language that had been in place for youths
    since 1974, which required the pretrial diversion process to
    begin "at arraignment."
    At the same time, the language the Legislature used for the
    new diversion programs was quite different.   The restorative
    justice program, for instance, provides that a "juvenile or
    adult defendant may be diverted to a community-based restorative
    justice program pre-arraignment or at any stage of a case with
    the consent of the district attorney and the victim.
    Restorative justice may be a final case disposition, with
    judicial approval.[8]   If a juvenile or adult defendant
    successfully completes the community-based restorative justice
    program, the charge shall be dismissed."9   (Emphasis added.)   See
    G. L. c. 276B, § 2.
    8 Pretrial diversion under a restorative justice program
    differs from all other pretrial diversion programs in that it
    requires the consent of the prosecutor and the victim. See
    G. L. c. 276B, § 2.
    9 The language used to begin a diversion program for a
    person charged with a drug crime who suffers from drug abuse
    also differs significantly from the "at arraignment" language of
    G. L. c. 276A, § 3. "Any defendant who is charged with a drug
    offense shall, upon being brought before the court on such
    14
    The Legislature adopted similar prearraignment provisions
    for veterans, those with substance abuse issues, and those with
    mental health problems.   For those individuals, the criminal
    justice reform act mandates that each district attorney
    "establish a pre-arraignment diversion program which may be used
    to divert a veteran or person who is in active service in the
    armed forces, a person with a substance use disorder or a person
    with mental illness if such veteran or person is charged with an
    offense or offenses against the commonwealth" (emphasis added).10
    See G. L. c. 12, § 34, inserted by St. 2018, c. 69, § 16.   This
    section expands upon a pretrial diversion program for veterans
    charge, be informed that he is entitled to request an
    examination to determine whether or not he is a drug dependent
    person who would benefit by treatment, and that if he chooses to
    exercise such right he must do so in writing within five days of
    being so informed. . . . If the defendant requests assignment
    and if the court determines that he is a drug dependent person
    who would benefit from treatment the court may stay the court
    proceedings and assign him to a drug treatment facility. An
    order assigning a person under this section shall specify the
    period of assignment, which shall not exceed eighteen months or
    the period of time equal to the maximum sentence he could have
    received had he been found guilty of every count alleged in the
    complaint or indictment, whichever is shorter" (emphasis added).
    G. L. c. 111E, § 10. If an individual successfully completes a
    drug treatment program, a judge "shall" dismiss the charges
    (emphasis added). 
    Id. 10For all
    these programs, the rationale of treatment is to
    remove the cause of further offending by treating the addiction,
    mental illness, or posttraumatic stress disorder that is
    resulting in the offender's commission of the offenses. Thus,
    treatment benefits both the individual and the public. See
    G. L. c. 276A, § 1.
    15
    and military service members that the Legislature enacted in
    2012.   See G. L. c. 276A, §§ 10, 11.   At that point, in a
    provision unchanged with the more recent modifications, the
    Legislature required the probation service to determine an
    individual's status as a veteran "at or prior to arraignment."
    Compare G. L. c. 276A, § 10, inserted by St. 2012, c. 108, § 16,
    with G. L. c. 276A, § 3.
    Likewise, for juveniles, the criminal justice reform act
    created a new diversion program that explicitly requires
    prearraignment diversion.   "A child complained of as a
    delinquent child may, upon the request of the child, undergo an
    assessment prior to arraignment to enable the judge to consider
    the suitability of the child for diversion.   If a child chooses
    to request a continuance for the purpose of such an assessment,
    the child shall notify the judge prior to arraignment. . . .     If
    a case is continued pursuant to this subsection, the child shall
    not be arraigned and an entry shall not be made into the
    criminal offender record information system until a judge issues
    an order to resume the ordinary processing of a delinquency
    proceeding.   A judge may order diversion without first ordering
    an assessment in any case in which the court finds that
    sufficient information is available without an assessment."
    16
    (Emphasis added.)11   See G. L. c. 119, § 54A (b), inserted by
    St. 2018, 69, § 75.
    Thus, clearly, had the Legislature wished pretrial
    diversion for ordinary adult offenders to begin "prior" to
    arraignment, it could have used similar language; it chose not
    to do so.   See Commonwealth v. Dayton, 
    477 Mass. 224
    , 228 (2017)
    ("where the Legislature used specific language in one part of an
    enactment . . . , but not in another . . . , the language should
    not be implied where it is not present").   Instead, the
    Legislature used different phrases to indicate when pretrial
    diversion is to begin for ordinary adult offenders and all other
    categories of offenders who are eligible for any form of
    pretrial diversion.   This evinced an evident legislative intent
    that, if the Commonwealth seeks arraignment, an arraignment must
    take place before an adult defendant may be referred to a
    pretrial diversion program.   See Sharris v. Commonwealth, 480
    11 The rationale underlying this dissimilar treatment of
    adults and juveniles likely arises from a belief that "younger
    offenders are more susceptible to rehabilitation than older
    offenders." See Zablotsky, An Analysis of State Pretrial
    Diversion Statutes, 15 Colum. J. L. & Soc. Probs. 1, 30 (1979).
    The Legislature and the courts often treat juvenile offenders
    differently from adult offenders, in recognition of the fact
    that the juvenile justice system "is primarily rehabilitative,
    cognizant of the inherent differences between juvenile and adult
    offenders, and geared toward the correction and redemption to
    society of delinquent children" (quotation and citation
    omitted). See Commonwealth v. Humberto H., 
    466 Mass. 562
    , 574
    (2013).
    
    17 Mass. 586
    , 594 (2018) (where language of statute is plain, it
    ordinarily is "conclusive as to legislative intent" [citation
    omitted]).
    Whatever the Legislature's reasoning in treating ordinary
    adult offenders differently, we may not rewrite the pretrial
    diversion statute to contain language the Legislature did not
    see fit to include.   Cf. 
    Sisson, 460 Mass. at 720
    (Spina, J.,
    dissenting) ("The Legislature knows how to write exceptions,"
    and where "it has expressed its intent as to only one
    exception," we do not add to it).   Courts may not read into a
    statute a provision that the Legislature did not enact, nor "add
    words that the Legislature had an option to, but chose not to
    include," see Commissioner of Correction v. Superior Court Dep't
    of the Trial Court, 
    446 Mass. 123
    , 126 (2006).   Accordingly, we
    conclude that the Legislature intended that participation in
    pretrial diversion for adult defendants begins "at arraignment,"
    if the Commonwealth moves to arraign a defendant.
    We recognize that there is some tension between the
    statutory language and the apparent purpose underlying pretrial
    diversion.   Although the legislative history for the adult
    pretrial diversion statute is scant, we understand that its
    purpose, as with pretrial diversion for juveniles, is to provide
    rehabilitative programming so that individuals can address the
    underlying conditions that lead to their criminal behavior.
    18
    Treating the cause of the behavior is intended to reduce
    recidivism, increase public safety, and allow the individual to
    participate as a productive member of society, without incurring
    the serious collateral consequences (and concomitant difficulty
    in productive participation) that may arise from a criminal
    record.   See generally 
    Morgan, 476 Mass. at 779-780
    ; Zablotsky,
    An Analysis of State Pretrial Diversion Statutes, 15 Colum. J.
    L. & Soc. Probs. 1, 8 (1979); Note, Pretrial Diversion from the
    Criminal Process, 83 Yale L.J. 827, 827 & nn.1, 2 (1974).
    Nonetheless, "this purpose should not be used as a means of
    disregarding the considered judgment of the Legislature" in
    crafting statutory language that anticipated a formal
    arraignment at the Commonwealth's request.   See Globe Newspaper
    Co. v. Boston Retirement Bd., 
    388 Mass. 427
    , 436 (1983).12
    The pretrial diversion statute, as adopted, does provide
    significant opportunities for a defendant who successfully
    12In this case, the record indicates several reasons why
    the judges were reluctant to pursue an arraignment. It is
    apparent that the judge who ordered the evidentiary hearing had
    serious doubts as to the victim's credibility, for
    understandable reasons. On this record, the defendant had
    obtained a restraining order against the victim, had changed her
    telephone number, and had moved to another city, after the
    victim appeared at the defendant's house and allegedly engaged
    in repeated acts of harassment. Indeed, at one of the hearings
    in this case, the victim was present in court on an unrelated
    criminal case and apparently attacked the defendant.
    Nonetheless, it is the Commonwealth's prerogative to decide
    whether to pursue an arraignment. See G. L. c. 276, § 58.
    19
    completes a pretrial diversion program to avoid the more severe
    consequences that arise from having a criminal conviction,
    because the judge then may dismiss the case.    See G. L. c. 276A,
    § 7; 
    Morgan, 476 Mass. at 772
    ("Imposing an alternative
    disposition to avoid a criminal conviction furthers these
    goals").
    Moreover, although a judge may not decline to arraign an
    adult defendant over the Commonwealth's objection, see G. L.
    c. 276, § 58 ("The [C]ommonwealth shall be the only party
    permitted to move for arraignment . . ."), the Commonwealth also
    has the inherent authority to decide not to pursue an
    arraignment.    See Commonwealth v. Moore, 
    93 Mass. App. Ct. 73
    ,
    77-79 (2018).   The pretrial diversion statute apparently
    contemplates a prosecutor's decision not to pursue formal
    arraignment.    See G. L. c. 276A, § 12, inserted by St. 2018,
    c. 69, § 201 (nothing in this chapter "shall limit or govern the
    authority of a district attorney or a police department to
    divert an offender").    The Commonwealth does appear to be
    choosing this route more frequently.    See Commonwealth v. Newton
    N., 
    478 Mass. 747
    , 758 & n.6 (2018).    The Commonwealth's
    decision not to pursue arraignment also serves the legislative
    purpose, and may be more consistent with the treatment of
    pretrial diversion in the other, more specialized diversion
    programs.   See, e.g., G. L. c. 119, § 54A (juveniles); G. L.
    20
    c. 276B, § 2 (restorative justice programming); G. L. c. 12,
    § 34 (mental health and substance abuse).13   Where appropriate,
    pretrial diversion also saves significant police, prosecutor,
    and court resources.   See People v. Superior Court of San Mateo
    County, 
    11 Cal. 3d 59
    , 61-62 (1974) (pretrial diversion is "[a]
    quick and inexpensive method of disposition, when appropriate,
    reduces the clogging of the criminal justice system . . . , and
    thus enables the courts to devote their limited time and
    resources to cases requiring full criminal processing").    Cf.
    Eagle-Tribune Publ. Co. v. Clerk-Magistrate of the Lawrence Div.
    of the Dist. Court Dep't, 
    448 Mass. 647
    , 650 (2007).
    4.   Conditions of release.   We turn to the question of
    imposition of conditions of release prior to arraignment.       The
    Commonwealth argues that the judge lacked statutory or inherent
    authority to impose any conditions of release, such as the no-
    contact order and GPS monitoring, because the defendant had not
    been formally arraigned.   For the same reason, the Commonwealth
    argues that the probation service could not supervise the
    defendant.
    13In continuing to use the "at arraignment" language for
    first-time adult offenders, it is possible the Legislature had
    in mind its recent expansion of the circumstances, after a
    specified period of time, in which a defendant may seek to have
    any record of his or her court appearances or alternative
    dispositions sealed. See G. L. c. 276, § 100A, as amended
    through St. 2018, c. 69, §§ 186-192.
    21
    As an initial matter, we note that the Commonwealth did not
    lodge a contemporaneous objection to the imposition of
    conditions of release prior to the defendant's arraignment.    To
    the contrary, the Commonwealth agreed to the no-contact order.
    It later requested that the defendant be removed from pretrial
    diversion because of a suggestion that she had violated the no-
    contact order, not because the condition had been imposed
    improperly.   The Commonwealth also did not object when the
    defendant subsequently sought imposition of GPS monitoring.
    Therefore, the Commonwealth's challenge to the conditions of
    release at this point is unavailing.   Cf. Commonwealth v.
    Plasse, 
    481 Mass. 199
    , 206 (2019) (party cannot properly
    challenge on appeal condition that he or she requested below).
    Where the defendant requested that a condition of release be
    imposed as a desirable alternative to arraignment, and the
    Commonwealth assented to that condition, we discern no error in
    the judge's imposition of the condition.
    Addressing the matter on the merits under our
    superintendence power, we do not agree that the judge had no
    authority to impose conditions of release.   Among other things,
    the imposition of conditions of release prior to arraignment is
    explicitly contemplated in the multiple programs that either
    require, or permit, pretrial diversion without arraignment.
    See, e.g., G. L. c. 12, § 34 (mental health and substance abuse
    22
    programming prior to arraignment); G. L. c. 111E, § 10 (drug
    offense where defendant is addict); G. L. c. 119, § 54A
    (pretrial diversion for juveniles prior to arraignment); G. L.
    c. 276B, § 2 (restorative justice programming prior to
    arraignment). Even where pretrial diversion is not contemplated,
    we have held that, at a defendant's initial appearance,
    ordinarily "the court must either arraign the defendant or set a
    time for arraignment, and determine the conditions of the
    defendant's release" (footnote omitted).   See Commonwealth v.
    Butler, 
    423 Mass. 517
    , 523 (1996).   Thus, a judge has authority
    to order conditions of release for a defendant who has not been
    arraigned.   See Commonwealth v. New York Cent. & H. R. R.R., 
    206 Mass. 417
    , 429 (1910) ("Where there is power in a court to hear
    and determine a case, there is also power to issue proper
    process to enforce its orders").
    When conditions are ordered, the probation service may need
    to monitor the defendant and perform "such other duties as the
    court requires."   See, e.g., First Justice of the Bristol Div.
    of the Juvenile Court Dep't v. Clerk-Magistrate of the Bristol
    Div. of the Juvenile Court Dep't, 
    438 Mass. 387
    , 400 (2003),
    quoting G. L. c. 276, § 85.   Thus, whether the arraignment took
    place had no bearing on whether the judge could order conditions
    of release such as GPS monitoring by the probation department.
    23
    5.   Conclusion.   The case is remanded to the county court
    for entry of an order remanding the matter to the District Court
    for further proceedings consistent with this opinion.
    So ordered.
    

Document Info

Docket Number: SJC 12575

Filed Date: 9/18/2019

Precedential Status: Precedential

Modified Date: 9/19/2019