IN THE MATTER OF A.S.

COVEN, P.J. In this appeal of a commitment order pursuant to G.L. c. 123, § 16(b), we address three issues. A.S. argues that (1) the evidence was insufficient to support the order of commitment; (2) the judge erred in finding that there were no less restrictive alternatives; and (3) the judge failed to issue findings of fact. We affirm.

On February 3, 2020, A.S. was arraigned in the Chelsea District Court on a complaint charging him with (1) impede tax collector by threats; (2) threat to commit a crime; and (3) bomb/hijack threat. At arraignment, he was ordered to undergo a competency and criminal responsibility examination pursuant to G.L. c. 123, § 15(b) at the Worcester Recovery Center and Hospital ("WRCH"). On February 21, 2020, A.S. was found incompetent to stand trial and the Commonwealth dismissed the count for bomb/hijack threat. On March 19, 2020, WRCH's § 16(b) petition was allowed and the defendant was ordered committed for a period of six months.

Pursuant to G.L. c. 123, § 16(b), a person deemed to be incompetent in a criminal matter may be committed pursuant to the standards in § 8 of the statute.

General Laws c. 123, § 1 provides as follows: "'Likelihood of serious harm', (1) a substantial risk of physical harm to the person himself as manifested by evidence of, threats of, or attempts at, suicide or serious bodily harm; (2) a substantial risk of physical harm to other persons as manifested by evidence of homicidal or other violent behavior or evidence that others are placed in reasonable fear of violent behavior and serious physical harm to them; or (3) a very substantial risk of physical impairment or injury to the person himself as manifested by evidence that such person's judgment is so affected that he is unable to protect himself in the community and that reasonable provision for his protection is not available to the community."

Further, that person must present an imminent risk of harm to other persons. Matter of G.P., 473 Mass. 112, 127 (2015).

The evidence overwhelmingly supported the finding that the respondent was mentally ill and that the failure to retain A.S. in a facility would create a likelihood of serious harm. Short of actually committing the criminal act, A.S. made statements to a Chelsea police lieutenant that he had a firearm and was intending to shoot individuals that were on his list of persons to be killed. A.S. intimated the same to the tax assessor when he told her that there would be a lot of vacancies soon as a result of harming the individuals in city hall that deserved it. At the time of his arrest for those threats, A.S. told the lieutenant that all bad guys would be going down, vacancies would be upcoming, and that a criminal conspiracy was going on. According to the forensic evaluator, A.S. threatened his criminal defense attorney and the court

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clinician.

Finding that A.S. suffered from a mental illness was similarly not challenging. The forensic evaluator testified that A.S. suffered from a delusional disorder of the persecutory type, and that this disorder grossly impaired A.S.'s judgment and reality. According to the evaluator, A.S.'s delusions revolved around feeling that he was being persecuted or attacked by a specific organization and he needed to take active steps to protect himself. The evidence supported a finding that A.S.'s behavior was the product of a delusional disorder and grossly impaired judgment. There was also testimony from the evaluator that A.S. had a history of engaging in physical altercations that included the use of a gun.

Based upon A.S.'s threatening behavior, past altercations, prior psychiatric hospitalizations, his mental disorder, and A.S.'s articulated plan to eliminate persons, the forensic evaluator opined that A.S. needed to be hospitalized in a secure facility in order to protect persons at Chelsea city hall and the community.

The evidence supports the ultimate conclusion. The judge, however, did not make specific findings. Neither the relevant statute nor case law requires a judge to elucidate the findings that support the ultimate conclusion in this context. The Supreme Judicial Court, however, has recently addressed the issue of the requirement that a judge articulate the findings of fact to support a commitment under G.L. c. 123, § 35 by virtue of due process protections when liberty is at stake.

In Matter of a Minor, 484 Mass. 295 (2020), the Court stated, "'[T]he constitutional demands of due process' dictate that a 'statement of findings and reasons, either in writing or orally on the record, is a minimum requirement where a defendant faces a loss of liberty.'" Id. at 306, quoting Brangan v. Commonwealth, 477 Mass. 691, 708 (2017). This requirement of due process applied in the context of "[a]n order of commitment under [G.L. c. 123, § 35,] [which] results in a substantial curtailment of liberty." Id. at 307, quoting Matter of G.P., supra at 126.

The curtailment of liberty in this context is even greater. Under G.L. c. 123, § 35, a period of commitment is "not to exceed 90 days." As in this case, a commitment pursuant to § 16(b) "shall be valid for six months." Whether in writing or orally, the requirements of due process demand a statement of findings and reasons.

This Division is not prepared to impose this significant requirement of written findings of fact without further guidance of the appellate courts. Such a major departure is best left to a constitutional determination upon appellate review.

Finally, appellant argues that the trial judge failed to consider the risks imposed by COVID-19. This commitment order entered on March 19, 2020. On June 2, 2020, the Supreme Judicial Court decided Foster v. Commissioner of Correctional Officers, 484 Mass. 698 (2020). In that case, the Court stated, "Going forward, a judge shall not commit an individual under G.L. c. 123, § 35, unless the judge finds that the danger posed by the individual's substance use disorder outweighs the risk of transmission of COVID-19 in congregate settings." Id. at 730. That requirement was not made retroactive by the Court. While this balancing of factors will apply to commitment proceedings pursuant to G.L. c. 123, §§ 7 and 8 after the date of the decision, it was not required at the time of this hearing.

The order commitment is affirmed.