SCOTT SWAIN vs. SUPERINTENDENT, OLD COLONY CORRECTIONAL CENTER.

Swain, a State prisoner, appeals from an order of the Superior Court dismissing his petition for a writ of habeas corpus. [Note 1] Swain contended that he should be released from custody because his 1986 commitment to the treatment center at M.C.I., Bridgewater (treatment center), for being a Sexually Dangerous Person (SDP) pursuant to G. L. c. 123A, Section 5, and his return to prison in 1988 were improper, illegal and unconstitutional.

On September 17, 1984, a jury found Swain guilty of aggravated rape and assault and battery by means of a dangerous weapon (cigarette lighter). On October 15, 1984, the trial judge ordered Swain committed to the treatment center for evaluation in accordance with G. L. c. 123A, Section 4. Following that evaluation the judge, after hearing on March 14 and 15,

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1985, determined, pursuant to G. L. c. 123A, Section 5, that Swain was an SDP. However, at that time the judge announced his intention to exercise the discretion accorded him by the statute to sentence rather than to commit Swain. On May 10, 1985, the judge sentenced Swain to serve a seven and one-half to ten year prison sentence at M.C.I., Cedar Junction, for aggravated rape. [Note 2]

Swain subsequently was transferred to the North Central Correctional Center at Gardner. On October 7, 1986, the superintendent of that institution filed a motion to commit Swain to the treatment center for a sixty-day diagnostic period pursuant to G. L. c. 123A, Section 6. On November 25, 1986, the same Superior Court judge, without a hearing, ordered Swain committed for an indeterminate term to the treatment center. The order, however, was entered, pursuant to G. L. c. 123A, Section 5, as of the date of the earlier (March 14, 1985) determination of his status as an SDP.

On October 16, 1987, Swain filed a complaint which sought, among other things, (1) a declaration that the 1986 commitment to the treatment center was invalid, (2) his immediate release from the treatment center, and (3) credit against his criminal sentence for the time he spent there. At a December 2, 1987, hearing scheduled to address those claims [Note 3] the judge acknowledged that he had improperly committed Swain to the treatment center in 1986. In an effort to rectify the situation, on January 4, 1988, the judge entered the following order:

"Pursuant to M.G.L. c. 231, Section 96 and Mass.R.Civ.P. 81(e), after a hearing and upon agreement of the parties, this Court hereby orders that defendant, Scott Swain, is relieved from the order of commitment to the Treatment Center issued on November 25, 1986. The Court further orders that the defendant be returned to the custody of the Department of Correction[] to serve the balance of his sentence and that the period at the Treatment Center be counted against the sentence on the underlying offense."

On June 10, 1988, Swain, then held at the Old Colony Correctional Center, Bridgewater, brought the present petition for a writ of habeas corpus, which was dismissed on September 21, 1988.

Swain argues on appeal that the first paragraph quoted above requires his release from all custody because: (1) the November 25, 1986, commitment to the treatment center replaced Swain's prison sentence, and (2)

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relief from the commitment order was, in effect, a decision that he was no longer a sexually dangerous person. These arguments are without merit. [Note 4]

Swain's claims of error are premised upon the language of G. L. c. 123A, Section 5, as in effect in 1985. The provision then read in pertinent part: "If the court finds that the person is a sexually dangerous person, it may, in lieu of the sentence required by law for the original offence, commit such person . . . [emphasis supplied]." G. L. c. 123A, Section 5, as appearing in St. 1958, c. 646, Section 1. [Note 5] Swain correctly points out that this language gave the judge discretion either to sentence or to commit to the treatment center a convicted defendant found to be an SDP. Thibodeau v. Commonwealth, 366 Mass. 452, 454-455 (1974).

Swain first argues that because the judge could not both sentence and commit him, "[i]t is axiomatic" that the commitment which was backdated to the date of the initial sentence must have eradicated that sentence. Swain does not dispute, however, that the judge acted properly in sentencing rather than committing him on May 10, 1985, even though the judge had previously determined that Swain was an SDP. Nor is it disputed that Swain was illegally committed on November 25, 1986. See generally Commonwealth v. Desroches, 27 Mass. App. Ct. 866, 871 (1989)(possibility of future indeterminate commitment after sentencing

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without new misconduct potentially unfair). We do not think that it logically follows that the subsequent illegal commitment supplanted the prior legal sentence. It is much more sensible for the prior legal action to remain in force and the subsequent illegal one to be rendered a nullity. See Commonwealth v. Ackers, 343 Mass. 63, 67 (1961). The judge's January 4, 1988, order, which returned Swain to the custody of the correctional authorities to serve the remainder of his outstanding sentence and gave him credit for the time he spent at the treatment center, achieved that result.

Swain's second argument, that the January 4, 1988, order was in effect a declaration that he was not an SDP, seeks to elevate from over substance. He correctly observes that an individual committed pursuant to Section 5 of G. L. c. 123A, as appearing in St. 1958, c. 646, Section 1, "shall be held until released under the provisions of section nine [of c. 123A]," and Section 9 provides in pertinent part that "[u]nless the court finds that such person remains a sexually dangerous person, it shall order such person to be discharged from the treatment center." G. L. c. 123A, Section 9, as appearing in St. 1985, c. 752, Section 1. From this Swain concludes that since he was no longer committed and Section 9 provides the only avenue for such relief, the terms of Section 9 must have been applied in this case. This argument also is wide of the mark. Section 9 presupposes a prior valid commitment under either Section 5 or Section 6. The court below never ruled that Swain was no longer an SDP.

Finally, in an effort to avoid what seems to be controlling law, Swain claims that Commonwealth v. Ackers, 343 Mass. at 63, is not applicable to this case because Ackers concerned a commitment under G. L. c. 123A, Section 6, not Section 5. Our reading of the Ackers decision does not indicate that its holding is confined to Section 6 of G. L. c. 123A. See id. at 67.

Order dismissing petition for issuance of writ of habeas corpus affirmed.