RICHARD J. SMITH vs. STATE PAROLE BOARD & another. [Note 1]

KAPLAN, J. The facts are agreed, and were as follows. The plaintiff, Richard J. Smith, was convicted of rape on June 10, 1968, and sentenced to a term of imprisonment of not less than seven nor more than twelve years at M.C.I. Walpole. After serving some five years, the plaintiff was paroled on June 12, 1973. For the reason that the plaintiff's whereabouts became unknown, the Parole Board on August 30, 1974,

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cancelled his permit to be at liberty and issued a warrant for his arrest.

On June 13, 1975, the plaintiff was indicted for the crime of assault with intent to commit rape, committed on December 23, 1974. On March 23, 1976, he pleaded guilty to the indictment. This would of course be a further basis for parole revocation. After a sixty-day commitment of the plaintiff for diagnosis at the Massachusetts Treatment Center (see G. L. c. 123A, Section 4), the court on the basis of report and hearing determined that he was a sexually dangerous person (SDP) and committed him to the treatment center for one day to life (id., Section 5). The Parole Board was aware of this disposition but deferred executing its parole violation warrant. On April 26, 1982, after hearing, the plaintiff was ordered discharged from the center because no longer an SDP (id., Section 9). Thereupon the warrant was served upon him, and at the date of the commencement of the present action, June 3, 1982, he was at M.C.I. Concord, awaiting a parole revocation hearing. It is understood that the hearing was held on June 10, 1982, and that the Parole Board revoked parole.

In this action commenced in the Superior Court, the plaintiff sought a declaration that the Parole Board acted illegally in postponing the execution of the warrant, i.e., in postponing consideration of whether parole should be revoked. Pressing statutory and constitutional grounds, the plaintiff argues that the warrant should have been executed, if at all, promptly following his indefinite commitment to the treatment center, and that it must now be declared that the period of the SDP commitment, some six years, counts against the remainder of the sentence for the rape and satisfies it. [Note 2] (There is also a suggestion that after

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the lapse of time the Parole Board should be held to have lost the power to execute the warrant.) The Parole Board denied any illegality. A declaratory judgment entered below in favor of the Parole Board, and we affirm. [Note 3] We have to discuss Section 149 of G. L. c. 127 (governing parole revocation warrants), and then the Constitution.

Statute. We set out in the margin the text of Section 149, as appearing in St. 1980, c. 155, Section 6, and invite particular attention to its last three sentences. [Note 4] Section 149 deals with cases where a prisoner, out on parole, is sentenced to be imprisoned for a further crime. It is helpful to consider three situations that bear some possible resemblance to the case at hand. (i) Execution of a parole revocation warrant in respect to the earlier offense (whether the proposed revocation

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is based on the commission of the second crime or on some other ground) must be deferred until the second sentence of imprisonment is served, and, if parole is then revoked, the time served on the second sentence is not to be counted as service on the first sentence; the remainder of the first sentence is due to be served. (ii) Suppose, during imprisonment on the second sentence, the person is determined to be an SDP and is committed to the treatment center, a commitment under G. L. c. 123A, Section 6. [Note 5] The period at the center counts against the second sentence. [Note 6] If released from the center as being no longer an SDP before the expiration of the period of that sentence, the person is still obliged to complete the sentence according to law. [Note 7] The revocation warrant is then executed, and if parole is revoked, service is required on the first sentence. (iii) Take the same case, but assume that the person's stay at the treatment center extends beyond the date of expiration of the second sentence. The second sentence is deemed served. By the terms of Section 149 it appears that the parole revocation warrant is still executed at that expiration date. If parole is revoked, the time the person remains at the treatment center beyond that date apparently counts as service under the first sentence which becomes currently due. [Note 8]

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The present case lies outside G. L. c. 127, Section 149, and the cases just described because there was no sentence of imprisonment on the second offense; as permitted by G. L. c. 123A, Section 5, the plaintiff was committed as an SDP following his guilty plea (see note 5). Argument is possible that the SDP process is "civil," and commitment of a person thereunder is not a "sentence," so that what Section 149 has to say about deferring execution of the warrant is inapplicable. And a weak reference might be made to case (iii) above with respect to the indicated handling of an SDP commitment so far as it extends beyond the period of the second sentence of imprisonment. The Parole Board stresses the "criminal" aspect of the SDP process; and something might be made of cases (ii) and (iii) so far as the SDP commitment is treated in each instance as an equivalent of service under the second sentence of imprisonment.

The truth of the matter, as we see it, is that any characterizations of the SDP procedure in earlier decisions as quasi-civil or quasi-criminal were responsive to the particular contexts and are not really helpful in answering to the new context. [Note 9] Word-chopping does not take us far. [Note 10] Section 149

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does not cover the present case for the understandable reason that c. 123A, Section 5, was not enacted until c. 127, Section 149, had taken form, and the Legislature has not stepped in to revise Section 149 to deal one way or other with the Section 5 problem. [Note 11] Thus the present situation is a casus omissus from Section 149 -- it does not tell us when a parole revocation warrant is to be executed in the case of a Section 5 commitment -- and the maxim about strict construction of penal statutes is not useful. [Note 12] We can fairly say no more than this: We think, on a broadly analogical basis, that if the draftsmen of Section 149 had before them the Section 5 problem they probably would not have written the statute in such a way as to oblige the Parole

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Board to execute a parole revocation warrant at the outset of the commitment.

Constitution. Although the Parole Board did not violate any statutory duty, there remains the question whether it acted constitutionally. The Supreme Court held in Morrissey v. Brewer, 408 U.S. 471 (1972), that a paroled person by virtue of the due process clause was entitled to certain limited rights of notice, hearing, etc. in the conduct of a proceeding to revoke parole. Then in Moody v. Daggett, 429 U.S. 78 (1976), the Court faced the question whether "a federal parolee imprisoned for a crime committed while on parole is constitutionally entitled to a prompt parole revocation hearing when a parole violator warrant is issued and lodged with the institution of his confinement but not served on him." Id. at 79. After detailed discussion, the Court answered that question in the negative (a 7-2 decision). "With only a prospect of future incarceration which is far from certain, we cannot say that the parole violator warrant has any present or inevitable effect upon the liberty interests which Morrissey sought to protect." Id. at 87. [Note 13]

Moody is correctly taken to announce a general rule that "there is no constitutional right to a prompt parole revocation hearing when the parolee is serving an independent intervening sentence in the same jurisdiction." Hopper v. United States Parole Commn., 702 F.2d 842, 845 (9th Cir. 1983); cf. Stefanik v. State Board of Parole, 372 Mass. 726, 730 (1977). Upon a liberal reading of the Moody opinion, however, one can imagine situations in which an individual might come forward and establish affirmatively, on particular facts, a claim of constitutional deprivation resulting from postponement of consideration of the parole revocation. Interests that might be asserted by the individual could include protection against: Risk of loss of evidence

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usable in defense against revocation. Cf. Rhodes v. United States Parole Commn., 456 F. Supp. 17, 21 (D. Conn. 1977). Loss of rights to amenities in prison because of the outstanding warrant. Cf. Reddin v. Israel, 561 F.2d 715, 717-718 (7th Cir. 1977). Prejudice to chances of securing parole from the second sentence or entry into other rehabilitative programs. Ibid.; cf. Sutherland v. McCall, 709 F.2d 730, 733 (D.C. Cir. 1983); Hopper, 702 F.2d at 845. [Note 14] In a more encompassing sense, anxiety about the putative results of the revocation hearing to be later held. Cf. Sutherland, 709 F.2d at 733; Commonwealth v. McInerney, 380 Mass. 59, 67-68 (1980). [Note 15]

Of course, a hearing, if held early, might still result in a decision by the Parole Board to postpone final consideration of parole violation to the time of completion of the second sentence. In some cases, perhaps many, the State would have a definite interest in deferring the evaluation: given the predictive quality of the hearing, it may be thought best to hold it "at the time at which prediction is both most relevant and most accurate -- at the expiration of the parolee's intervening sentence." Moody, 429 U.S. at 89. [Note 16] If early hearing were accorded, and parole revoked, it would not necessarily follow (as the plaintiff seems to suggest) that service of the second sentence would operate also on the

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first, for the State may in some, perhaps many, cases assert its interest in maintaining a system of constraints in which violation of parole is treated as a distinct offense and is separately sanctioned through reinstating the relevant sentence. (This policy is explained in Zerbst v. Kidwell, 304 U.S. 359 [1938], [Note 17] and in fact is manifested by G. L. c. 127, Section 149.)

We think the general rule of the Moody case, as well as the interests to be weighed in deciding whether the rule may be deflected, should apply in substance to situations where individuals after second offense and conviction are held as SDP's rather than in ordinary imprisonment, with the terminus of such commitment perhaps less certain than that of some or most sentences of imprisonment. Surely it is not the case (as the plaintiff suggests) that the finding that a person is no longer sexually dangerous means that he or she is entitled to return to society, then and there, without a possibility of further accounting. [Note 18]

To revert to the circumstances of the instant case: The plaintiff presents a bare record and does not escape the general rule. At the present stage he advances a claim of right without the affirmative showing on particular facts predicated above. [Note 19] It is not to be overlooked that he long withheld

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held suit (and, as far as appears of record, any complaint to the parole authorities) to a time when he might assert with some plausibility that he had notionally served the original sentence. Cf. Commonwealth v. McInerney, 380 Mass. 59, 66-67 (1980). (The prisoner in Moody requested execution of the warrant promptly upon the filing of the detainer, 429 U.S. at 80, 81.) The plaintiff may have had prudential reasons for not raising a claim early on and offering to face a revocation hearing then. Anxiety might have attached to the possibility of an early rather than a postponed hearing. For aught that appears the State was justified in waiting until the expiration of the SDP commitment to consider finally and claim of the plaintiff to be relieved of the parole violation; [Note 20] and there is no suggestion that the hearing actually provided was procedurally defective, or that the conclusion reached was undeserved.

Finally we observe, first, that we do not mean to preclude the plaintiff from instituting a new action upon a more

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complete record, if he should so elect. In that event we state that he should be free of any defense of former adjudication on the part of the Parole Board or other public adversary. See Restatement (Second) of Judgments Section 26(1)(b) (1980). Second, we suggest that amendment of G. L. c. 127, Section 149, is desirable to cover definitively the now omitted situation of a second offense eventuating in an SDP commitment. We think it not improper to say that, in any reordering of Section 149, it would be well to study the current Federal statute and regulations (18 U.S.C. Sections 4213-4214 [1982]; 28 C.F.R. Sections 2.47-2.52 [1982]) dealing with parole violations in cases of conviction of a further offense, together with Justice Stevens' dissenting opinion in Moody (429 U.S. at 89) on the same subject. [Note 21]

Judgment affirmed.