COMMONWEALTH vs. DONALD CALVAIRE.

BUDD, J. Under G. L. c. 123, § 16 (f) (§ 16 [f]), a defendant who is found incompetent to stand trial is entitled to dismissal of the criminal charges against him or her at the point corresponding to one-half the maximum sentence the defendant could have received

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if convicted of the most serious crime with which he or she was charged. We consider in this case how to calculate the date of dismissal when the most serious crime is within the concurrent jurisdiction of both the Superior Court Department and the District Court or Boston Municipal Court (BMC) Department, but the case is pending in the BMC. We conclude that the basis for the calculation is the maximum sentence provided for in the statute, regardless of the court in which the charges are pending at the time of the calculation. We also conclude that in this case, pursuant to § 16 (f), dismissal of the charge before the computed date may nevertheless be appropriate in the interest of justice.

Background. On July 3, 2012, a woman was stabbed with a pocket knife at the Ashmont station of the Massachusetts Bay Transportation Authority in the Dorchester section of Boston. Two days later, the BMC issued a criminal complaint charging the defendant, who has a history of mental illness, with assault and battery by means of a dangerous weapon in violation of G. L. c. 265, § 15A (b). He has been in custody ever since, spending most of that time committed at Bridgewater State Hospital (Bridgewater). [Note 1] Since the complaint issued, the defendant has been competent to stand trial only intermittently. [Note 2] The Commonwealth made attempts to proceed to trial in the BMC during the periods in which the defendant was competent, but each time the scheduled date approached, the trial was continued or else the defendant was found to be incompetent. [Note 3]

In 2014 and 2015, the defendant moved on three separate occasions in the BMC to dismiss the charge pursuant to § 16 (f). Each of the motions was denied. In January, 2016, the defendant

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again sought dismissal of the charge under § 16 (f). The judge denied the defendant's motion. [Note 4] The defendant subsequently filed a petition for relief under G. L. c. 211, § 3, in the county court, seeking dismissal. A single justice reserved and reported the case to the full court.

Discussion. 1. Dismissal date calculation. General Laws c. 123, § 16 (f), [Note 5] ensures that a criminal defendant who is incompetent to stand trial does not face an indefinite pendency of criminal charges. Foss v. Commonwealth, 437 Mass. 584, 589 (2002). To that end, an incompetent defendant's charges must be dismissed on the day that he would have been eligible for parole if he had been "convicted of the most serious crime with which he was charged in court and sentenced to the maximum sentence he could have received." G. L. c. 123, § 16 (f). Under the statute, parole eligibility "shall be regarded as [available on the final date of] one half of the maximum . . . potential sentence." Id. Thus, an incompetent defendant's charge must be dismissed after it has been pending for one-half of the maximum sentence he or she faces. Id.

The defendant argues that the phrase "charged in court" in § 16 (f) refers to the forum in which the Commonwealth chooses to prosecute the case. [Note 6] Because the Commonwealth chose to prosecute his case in the BMC, he reasons, the calculation should be

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based upon the maximum sentence for assault and battery by means of a dangerous weapon in that court (a house of correction sentence of two and one-half years) rather than the maximum for that crime in the Superior Court (a ten-year State prison sentence). [Note 7]

This court has previously considered and rejected this argument. See Chubbuck v. Commonwealth, 453 Mass. 1018, 1019-1020 (2009), citing Foss, 437 Mass. at 591 n.10. In Chubbuck, we declined to disturb a calculation based on a State prison sentence despite the fact that the defendant's charges of indecent assault and battery and breaking and entering were pending in District Court. Chubbuck, supra.

The defendant claims that his case is distinguishable from Chubbuck because here there are "objective indicia" that the Commonwealth planned to prosecute his case in the BMC. [Note 8] There is nothing in the language of the statute suggesting that the § 16 (f) dismissal date calculation requires the Department of Correction (department) to determine the court department in which the prosecutor will ultimately choose to proceed. Further, there is nothing in the statute to suggest that the calculation is intended to be reliant upon a prosecutor's decision to indict or that it should vary amongst defendants charged with the same offense. "We do not read into the statute a provision which the Legislature did not see fit to put there, nor add words that the Legislature had an option to, but chose not to include." Commissioner of Correction v. Superior Court Dep't of the Trial Court for the County of Worcester, 446 Mass. 123, 126 (2006).

2. Constitutional claims. The defendant argues that the statute violates the Federal and State Constitutions, as well as his right to a grand jury indictment. [Note 9]

He first claims that the unequal treatment of incompetent and competent defendants violates his right to equal protection under

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the law. The defendant does not expand on this argument, and in fact, the two categories of defendants are not similarly situated. While a competent defendant will either proceed to trial and face possible conviction or else plead guilty, the only inevitability for a defendant who is found to be (and remains) incompetent to stand trial is that his or her charges will be dismissed. [Note 10]

The defendant also argues that § 16 (f) intrudes upon his fundamental right to liberty; we analyze this argument on substantive due process grounds. See Commonwealth v. Weston W., 455 Mass. 24, 41-42 (2009) (Spina, J., concurring). We apply strict scrutiny analysis to determine whether the statute is narrowly tailored to achieve a compelling State interest, and conclude that it is. See id. at 43-44 (Spina, J., concurring).

Section 16 (f) serves at least two compelling State interests: (1) protecting mentally ill defendants from the indefinite pendency of criminal charges as a result of their incompetency to stand trial, see Foss, 437 Mass. at 589; and (2) protecting the public from potentially dangerous persons. [Note 11] The statute is narrowly tailored to allow the Commonwealth some time to pursue the legitimate and proper purpose of prosecuting charged crimes, but not for a period of time longer than is reasonably necessary to ascertain the defendant's chances of regaining competency. As an additional safeguard, § 16 (f) allows for dismissal of charges even before the maximum parole eligibility date has been reached "in the interest of justice."

Finally, the defendant argues that § 16 (f) subjects incompetent defendants to what amounts to a State prison sentence without a constitutionally required indictment by a grand jury. See Brown v. Commissioner of Correction, 394 Mass. 89, 91-92 (1985). This argument overlooks the fact that a determination of incompetency does not automatically lead to confinement. Under G. L. c. 123, § 16 (b) and (c), only those incompetent criminal defendants who are mentally ill and a danger to themselves or others are confined at Bridgewater. Defendants who are incompetent but not dangerous

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may post bail like any other defendant. [Note 12] In any case, persons who are otherwise civilly committed (e.g., under G. L. c. 123, §§ 7 and 8) are not serving the equivalent of a criminal sentence. See Commonwealth v. Gillis, 448 Mass. 354, 360 (2007). The circumstance of an incompetent defendant who is held because he or she is dangerous is more akin to that of a competent defendant held for the same reason, except that in the former case the charges will be dismissed if the defendant remains incompetent whereas in the latter case the defendant will be tried and, if found guilty, sentenced. Compare G. L. c. 123, § 16 (b), (c) (commitment for mental illness and dangerousness), with G. L. c. 276, § 58A (pretrial custody without bail for dangerousness).

3. Dismissal in the interest of justice. As mentioned previously, in addition to providing for the calculation of the dismissal date of charges against an incompetent defendant, § 16 (f) contains a "safety valve" that allows a judge to dismiss charges prior to the calculated parole eligibility date "in the interest of justice." Thus, the judge may consider factors that are not relevant to the statutory computation. Use of the safety valve may be warranted in a case where, as the defendant claims is true here, the defendant's chances of being restored to competency are slim. Although the Commonwealth argues that the defendant may yet regain competency and remain so at least long enough to stand trial, his most recent prognosis (March, 2016) appears to indicate otherwise. [Note 13] See, e.g., Commonwealth vs. Guinta, Mass. Superior Ct., No. 2004-00088

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(Norfolk County Mar. 31, 2011) (dismissing incompetent defendant's charges pursuant to § 16 [f] where it had become clear over period of years that defendant would never become competent).

Conclusion. For the reasons discussed, the defendant's petition for relief under G. L. c. 211, § 3, is denied. The case is remanded to the BMC for further proceedings consistent with this opinion. [Note 14]

So ordered.