COMMONWEALTH vs. WALTER HOWARD.

KATZMANN, J. In this appeal we consider the question of the

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proper treatment of the probation component of a split sentence after a period of civil confinement that was later found to be in violation of the requirements set out in G. L. c. 123A, § 14(a), for proceedings to commit a defendant as a sexually dangerous person (SDP). We affirm a Superior Court judge's determination that the full probationary term be deemed to begin to run upon the defendant's release from the Massachusetts Treatment Center (treatment center).

Background. On November 25, 1992, the defendant pleaded guilty in Superior Court to fourteen counts of sexual offenses against minors, including three counts of rape and abuse of a child under sixteen, four counts of assault with intent to rape a child under sixteen, and seven counts of indecent assault and battery on a person over fourteen. The defendant was sentenced to a term of twelve to fifteen years, with eight years to be served and the remainder of the sentence suspended for ten years, during which time the defendant would be on probation. [Note 1]

The defendant was scheduled for release from prison on June 24, 2000. On June 8, 2000, before the defendant's committed sentence expired, the Commonwealth filed a petition seeking to commit civilly the defendant as a sexually dangerous person pursuant to G. L. c. 123A, § 12, enacted after the defendant's guilty pleas and sentencing. [Note 2] The defendant was committed temporarily to the treatment center pending a determination of probable cause. After a hearing on July 24, 2000, a Superior Court judge found probable cause existed to believe that the defendant was an SDP and temporarily committed the defendant to the treatment center for sixty days in accordance with G. L. c. 123A, § 13(a). [Note 3]

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More than three years after the Commonwealth originally sought to commit civilly the defendant as an SDP, no trial had taken place, and the defendant remained at the treatment center. On October 7, 2003, the defendant filed a motion to dismiss the SDP proceedings, arguing that the Commonwealth was late in its filing of the qualified examiners' reports and in petitioning for trial. On December 22, 2003, a Superior Court judge denied the defendant's motion, ruling that the examiners' reports had been timely filed on September 7, 2000, and that the Commonwealth's oral motion for trial that same day satisfied the requirements of G. L. c. 123A, § 14(a). The defendant filed a notice to appeal the dismissal of his motion, but did not pursue it.

Three years later, the defendant was still being held at the treatment center and no trial had yet taken place to determine whether the defendant should be civilly committed as an SDP. In December, 2006, the defendant filed a motion for reconsideration of the court's previous denial of his motion to dismiss, in light of Commonwealth v. Gross, 447 Mass. 691 (2006), and a renewed motion to dismiss. A Superior Court judge granted the defendant's motions, finding that an oral motion for trial was insufficient to satisfy the requirement in G. L. c. 123A, § 14(a), that the Commonwealth's "petition [be] timely filed." [Note 4] Moreover, the judge stated that the continued detention subjected the defendant to "manifest injustice" and acknowledged that the denial of his earlier motion for release had been "clearly erroneous." The Commonwealth did not appeal from this decision, and the defendant was released on January 4, 2007.

Upon release from the treatment center, the defendant began to serve the term of probation associated with his sentence. On October 30, 2009, the defendant filed a motion for declaration of a probation termination date, contending that his probation should terminate on September 23, 2010, in light of his confinement from September 22, 2000, until January 4, 2007, in violation of G. L. c. 123A, § 14(a). A Superior Court judge

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disagreed, ruling that the defendant's probation termination date is January 4, 2017, ten years after his release from the treatment center. This appeal followed.

Discussion. The issue of the proper treatment of probation after a period of civil confinement later found to be in violation of G. L. c. 123A, § 14(a), is one of first impression. Contrast Commonwealth v. Sheridan, 51 Mass. App. Ct. 74, 75-77, 79 (2001) (Sheridan) (where defendant had been lawfully committed as SDP, probationary term began after defendant was released from treatment center due to finding he was no longer sexually dangerous). See also Commonwealth v. Goodwin, 458 Mass. 11, 13 (2010) (Goodwin) (same). Because the motion judge only considered documentary evidence and did not hold an evidentiary hearing, our review is de novo. See Commonwealth v. Fremont Inv. & Loan, 452 Mass. 733, 741 (2008), quoting from Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 616 (1980) ("[I]f the order was predicated solely on documentary evidence we may draw our own conclusions from the record").

On appeal, the defendant argues that the motion judge incorrectly interpreted the sentencing judge's intent when she ruled that the defendant's probation will not end until 2017 -- ten years after his release from the treatment center. The defendant claims that the sentencing judge intended that his supervision by the Commonwealth be complete after eighteen years absent additional misconduct, meaning that the defendant's probation should have ended in 2010. We disagree.

The sentencing judge died in 2005. "When construing a sentencing order we look to the intent of the judge." Commonwealth v. Bruzzese, 437 Mass. 606, 615 (2002). After reviewing the record, we see no indication that the sentencing judge intended to strictly limit the period the defendant was under Commonwealth supervision to a maximum of eighteen years inclusive of incarceration and probation. The judge did not speak in the sentencing proceeding of a fixed term of "Commonwealth's control" or of the possibility that the defendant might serve some portion of his probation while confined. Cf. Commonwealth v. Juzba, 44 Mass. App. Ct. 457, 459-461 & n.3 (1998). Instead, all the evidence available, apart from the sentence

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itself, indicates that the sentencing judge intended the defendant to serve a ten-year period of probation upon release into the community. At sentencing, the Commonwealth argued that "a very long suspended sentence is necessary to ensure that the defendant is supervised upon his release. Treatment is a very essential component of this supervision. It's necessary to teach him how to control his behavior, and to some degree to rehabilitate him, if that's possible, your Honor." (Emphasis supplied.) The sentencing judge appears to have agreed with this assessment by rejecting the defendant's suggestion of a five-year suspended sentence and instead imposing a ten-year suspended sentence. Moreover, the conditions of probation imposed by the sentencing judge (including no contact with the victims and no unsupervised contact with minors) are further evidence that the judge intended that upon his release into the community, the defendant was to be subject to supervision for the ensuing ten-year period.

The judge's intent, manifested in the way the sentences were structured, reflects "[t]he two principal goals of probation," namely, "rehabilitation of the defendant and protection of the public." Goodwin, 458 Mass. at 15. See generally Commonwealth v. Power, 420 Mass. 410, 414-415 (1995), cert. denied, 516 U.S. 1042 (1996). "Probation . . . is a legal disposition which allows a criminal offender to remain in the community subject to certain conditions and under the supervision of the court." Sheridan, 51 Mass. App. Ct. at 76, quoting from Commonwealth v. Durling, 407 Mass. 108, 111 (1990). We are confident that the sentencing judge was aware of these purposes and confident that the intervening civil confinement "did not change the sentencing judge's intent to have the defendant supervised upon his release from custody." Sheridan, 51 Mass. App. Ct. at 77. [Note 5]

Our conclusion is also informed by the sentencing judge's rejection in 2003 of the defendant's contentions in a "motion to enforce plea contract and sentencing," brought pro se, that the

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Commonwealth was violating its plea agreement by confining him at the treatment center on an SDP petition, that his "plea contract" with the Commonwealth "provided that he would be released after eight years of confinement," and that the judge should order "specific performance" of that contract by ordering his release. Citing Commonwealth v. Albert A., 49 Mass. App. Ct. 269, 271 (2000), the sentencing judge ruled that there was no breach of the plea agreement because "possible commitment as a sexually dangerous person is a civil remedy independent of any criminal proceedings." [Note 6]

The defendant next argues that fairness requires that he receive credit for the time that he spent in civil confinement against his probation. We disagree that this is an appropriate remedy for the improper period of civil commitment. Here, crediting the defendant for the time that he was in civil confinement would run counter to the purposes of probation. See Sheridan, 51 Mass. App. Ct. at 76-77.

Probation is granted "to enable the person to get on his feet, to become law abiding and to lead a useful and upright life under the fostering influence of the probation officer." Goodwin, 458 Mass. at 15, quoting from Mariano v. Judge of Dist. Court of Cent. Berkshire, 243 Mass. 90, 93 (1922). "While committed to the treatment center, the defendant was separated from society and in an institutionalized setting that eliminated any need for the supervision of a probation officer. . . . The two goals of probation -- rehabilitation under the supervision of a probation officer and the protection of society -- are only brought into play when the offender is released into the community." Sheridan, 51 Mass. App. Ct. at 77. Here, as in

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Sheridan, the purposes of probation can only be fulfilled once the defendant is out in the community.

The defendant argues that his case is distinguishable from Sheridan because he was never lawfully adjudicated to be a sexually dangerous person and thus, unlike the defendant in Sheridan, suffered "adverse consequence[s] with respect to his liberty." Contrast Sheridan, 51 Mass. App. Ct. at 78. While we agree that the cases are different in this respect, we disagree that this difference entitles the defendant to credit against his probation term for the term of his civil confinement. Decreasing the defendant's term of probation would frustrate the sentencing judge's intent that the defendant be supervised for a ten-year period of probation upon release. In addition, a shorter period of probation would jeopardize the goals of rehabilitation and public protection.

Indeed, in another case we rejected a defendant's argument

"that once he was found not to be subject to the rehabilitative condition of confinement as a sexually dangerous person, he should not be subject to probation conditions, pursuant to G. L. c. 276, § 87, tailored to be responsive to his potentially continuing propensities. There is no support for such a position. One may be found not a sexually dangerous person for purposes of civil confinement, but may still pose a sexually dangerous risk to others without some supervision, restriction, or attempted rehabilitation outside of confinement."

Commonwealth v. Morales, 70 Mass. App. Ct. 839, 847 (2007). See Commonwealth v. Goodwin, 414 Mass. 88, 93-94 (1993) ("it is recognized that recidivism rates among child molesters are particularly high"); Commonwealth v. Lapointe, 435 Mass. 455, 460 (2001) (given high recidivism rates, residence restriction to keep offender away from children was permissible probation term). [Note 7]

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The defendant also argues that he is entitled to credit for the years that he spent in civil confinement because his situation is "identical in every relevant respect to that of a prisoner facing dead time." [Note 8] To avoid dead time, the time a defendant spends in custody prior to his or her sentence may be credited against the defendant's term of incarceration. See, e.g., Commonwealth v. Grant, 366 Mass. 272, 273-274, 276 (1974); Commonwealth v. Foley, 15 Mass. App. Ct. 965, 966 (1983). However, the defendant cites no cases, and we are aware of none, where a defendant has received credit against a probationary term for time spent incarcerated or in civil confinement. In the case of a prisoner facing incarceration, a day spent confined awaiting trial is the functional equivalent of a day spent incarcerated. For the reasons described above, however, probation is significantly different from incarceration or civil confinement. A day spent confined or incarcerated is not the functional equivalent of a day spent out in the community under the supervision of a probation officer. Thus, the defendant's analogy to dead time fails. [Note 9]

The Commonwealth notes the Superior Court judge's finding that "[d]uring the time his SDP petition was pending, [the defendant] was represented by at least six successive attorneys. . . . He bears some weight for the time the case took to reach a conclusion." [Note 10] The judge further commented: "I have examined the docket on the case. It received considerable court attention as the parties prepared to litigate. [The defendant] did not languish, mouldering at the [t]reatment [c]enter. I infer from the docket entries that he was highly active in his own defense. Neither he nor his attorneys ever sought to advance the matter

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for trial." In any event, we do not condone the fact that the defendant was confined for more than six years in violation of G. L. c. 123A, § 14(a). However, decreasing the defendant's probation is not a proper remedy and would be contrary to the intent of the sentencing judge. Dismissal of the SDP petition was the appropriate remedy for the Commonwealth's violation of G. L. c. 123A, § 14(a). See Commonwealth v. Gross, 447 Mass. 691, 693 (2006). [Note 11]

Order declaring probation termination date of January 4, 2017, affirmed.