COMMONWEALTH vs. VICTOR MEDINA.

BUDD, C.J. The defendant, Victor Medina, pleaded guilty to indecent assault and battery on a child and received a sentence that included two separate periods of incarceration, the latter of which was to be suspended for three years during which time the defendant would serve probation. After serving the first incarceration period, the defendant spent eight years confined to the Massachusetts Treatment Center (treatment center) as a sexually dangerous person (SDP). See G. L. c. 123A, §§ 1, 14. Upon his

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release from confinement, he began serving the probation phase of his sentence. Approximately one year later, he was found to have violated conditions of his probation. His probation was revoked, and he was required to serve the portion of his sentence that previously had been suspended.

The defendant now appeals from a denial of his motion to dismiss the revocation proceedings, arguing, as he did in his motion to dismiss, that his probationary term was meant to begin immediately upon the completion of the first incarceration phase of his sentence, during his confinement as a sexually dangerous person, and that it therefore should have terminated prior to the occurrence of the violations. [Note 1] We affirm the denial of the defendant's motion.

Background. The defendant was indicted on four counts of rape of a child with force, in violation of G. L. c. 265, § 22A. Pursuant to a plea agreement, he pleaded guilty to four counts of the lesser included offense of indecent assault and battery on a child under fourteen, in violation of G. L. c. 265, § 13B. [Note 2] In return, the Commonwealth agreed to join the defendant in making a sentencing recommendation to the judge as follows: on the first two counts, the defendant would serve concurrent two-year terms of imprisonment; and, on the third and fourth counts, the defendant would receive concurrent two-year terms of imprisonment to be suspended for three years, during which time he was to serve a term of probation pursuant to a series of special conditions largely focused on preventing his contact with children. [Note 3]

At the change of plea and sentencing hearing, the judge reviewed the recommended sentence with the defendant. The judge advised the defendant of the rights he would forgo by pleading guilty, and informed him of the potential consequences of his plea, including that the Commonwealth could petition to have him civilly committed to the treatment center as an SDP for an indeterminate

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period of time pursuant to G. L. c. 123A. [Note 4] The judge accepted and imposed the disposition jointly recommended by the parties.

One month before the defendant was due to complete his sentences on the first two counts and be released from incarceration, the Commonwealth petitioned to have him declared to be an SDP. After a hearing, the defendant was found to be sexually dangerous and was committed to the treatment center. See G. L. c. 123A, § 14. During his time at the treatment center, the defendant consistently informed qualified examiners (i.e., psychiatrists or psychologists who periodically examined him for purposes of assessing his sexual dangerousness) that he expected, intended, and was preparing to serve his three-year probationary term upon his release to the community. Eight years after his initial SDP commitment, the defendant successfully petitioned for discharge from the treatment center. See G. L. c. 123A, § 9. Upon his release, he immediately reported to the probation department and began serving his probationary term on the third and fourth counts.

Approximately one year later, a notice of surrender was filed, alleging that the defendant had violated conditions of his probation, including by contacting one of his victims and that victim's family members. Several months after the initial surrender hearing, the defendant filed the subject motion to dismiss the probation violation proceedings, wherein he took the position for the first time that his probation actually was supposed to have commenced upon the completion of his term of imprisonment on the first two counts and that it therefore should have terminated during his confinement at the treatment center, well before the time of the alleged violations. The motion was denied. After a subsequent hearing, the defendant was found to have violated his probation and was ordered to serve the previously suspended period of incarceration on the third and fourth counts. The defendant appealed from the denial of his motion to dismiss, and we granted his application for direct appellate review.

Discussion. 1. Commencement of probationary term. "When construing a sentencing order we look to the intent of the judge." Commonwealth v. Bruzzese, 437 Mass. 606, 615 (2002). Where, as here, the record consists entirely of documentary evidence, our review of the motion judge's decision is de novo. See Commonwealth v. Mazza, 484 Mass. 539, 547 (2020).

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The Appeals Court has had occasion to consider an appeal that similarly involved a defendant's claim that his sentence of probation, imposed "from and after any sentence [he] is now serving," commenced immediately upon the completion of his incarceration, even though he remained civilly committed to the treatment center as an SDP. See Commonwealth v. Sheridan, 51 Mass. App. Ct. 74, 75 (2001). The court concluded that the sentencing judge intended for the defendant's probation to commence upon the defendant's release into the community, i.e., after his civil confinement, rather than immediately upon his release from incarceration. Id. at 77.

In Sheridan, the Appeals Court emphasized that probation has a dual purpose: "rehabilitation of the probationer and protection of the public." Id. at 76, quoting Commonwealth v. Power, 420 Mass. 410, 414 (1995), cert. denied, 516 U.S. 1042 (1996). The court observed that probation "allows a criminal offender to remain in the community subject to certain conditions and under the supervision of the court." Sheridan, supra, quoting Commonwealth v. Durling, 407 Mass. 108, 111 (1990). It further noted that the ultimate goal is for the probationer to "rehabilitate himself or herself under the supervision of the probation officer." Sheridan, supra at 77, quoting Commonwealth v. Olsen, 405 Mass. 491, 493 (1989).

The Appeals Court went on to conclude that because the sentencing judge imposed the probation to follow the defendant's incarceration, the judge "clear[ly] . . . intended the defendant to be supervised by a probation officer at the time he was released from custody and returned to the community." Sheridan, supra. The court further concluded that "the fact that the defendant's release to the community was delayed because of an intervening civil commitment did not change the sentencing judge's intent to have the defendant supervised upon his release from custody." Id. Ultimately, the court concluded that serving probation while confined in a secure facility nullifies the goals of probation, i.e., "rehabilitation under the supervision of a probation officer" and "protection of society." Id.

We cited Sheridan with approval over a decade ago, see Commonwealth v. Bunting, 458 Mass. 569, 570 n.3, 571 n.5 (2010), and continue to find its reasoning persuasive. By its nature, probation is meant to be served while a probationer is living in the community. See Durling, 407 Mass. at 111. Thus, absent a clear indication to the contrary, we assume that when a judge sentences

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a defendant to probation following (e.g., "from and after" or "on and after") a term of incarceration, he or she intends that the probationary term be served upon the defendant's release into the community. [Note 5] See Bunting, supra at 573 ("when a defendant has been sentenced to incarceration to be followed 'from and after' by a sentence of probation, if the defendant is to be held accountable for compliance with any of the conditions of the probationary sentence during the period of incarceration and before the probationary term has commenced, he must be so notified").

The defendant argues that, here, the sentencing judge made his intention clear regarding the timing of the probationary period because the judge was aware of the possibility that the defendant could be committed as an SDP, yet did not order that the probationary term be stayed during any such commitment. The defendant points to the docket and clerk's log, both of which indicate that the probationary term was to be served "from and after" the "sentence" on the first count, as unambiguous evidence of that intent. We are not convinced.

First, the transcript reveals that the issue was not raised by either of the parties at the change of plea and sentencing hearing, nor was it referenced by the judge at the time of sentencing. At the outset, the prosecutor described the joint recommendation, stating, "The first two indictments the Commonwealth recommends two years direct to the house, and with regard to the latter two indictments, we are recommending two years to the house of correction, suspended for three years with six special conditions." The judge then reviewed that recommendation with the defendant:

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Q.: "So two years in the house of correction to serve?"

A.: "Yes, sir."

Q.: "And then . . . on [the third and fourth counts], two years in the house of correction, suspended for a period of three years, and that you be placed on probation for that period of time with the conditions of probation."

A.: "Yes."

At the conclusion of the hearing, the clerk pronounced the sentences on the third and fourth counts as follows: "[Y]ou are sentenced to the [house of correction] for two years on each case. That two years is suspended, and you are ordered on probation for three years."

The potential for civil commitment was raised by the judge, but only in the context of making sure the defendant understood that that was one of the possible consequences of his guilty plea. [Note 6] See Mass. R. Crim. P. 12 (c) (3) (A) (ii) (b), 12 (d) (3) (A) (ii) (b), 378 Mass. 866 (1979). In addition, the special conditions attached to the probationary term were of the sort that are usually imposed to regulate the behavior of a probationer who is living in the community. See Commonwealth v. Howard, 81 Mass. App. Ct. 757, 761 (2012) (conditions of probation imposed by sentencing judge, including prohibiting unsupervised contact with minors, further evidenced judge's intention for defendant to be subject to probation upon release from treatment center into community). Regardless, as discussed supra, if the intent had been for any of those conditions to apply before the defendant was released to the community, due process would have required that to be explicitly stated for the defendant's own benefit. See Bunting, 458 Mass. at 573. See also Commonwealth v. Ruiz, 453 Mass. 474, 475, 484 (2009) (defendant sentenced to "from and after" term of probation could not be held to have violated condition prohibiting contact with victim during incarceration phase of sentence where

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defendant did not receive "clear notice" that condition was in effect at that time).

Sentencing judges understand the purposes of probation. See Sheridan, 51 Mass. App. Ct. at 76-77. We see no indication in the record that the judge here had any other intention than for the defendant's three-year probationary term to commence upon his release to the community, whenever that release occurred. See id. at 77 (release delayed by intervening SDP commitment found not to alter judge's intent regarding probationary supervision in community).

We also are mindful of the defendant's own acts and omissions, which are relevant given that his sentence was imposed pursuant to a joint recommendation. Despite being aware of the potential for an SDP commitment, the defendant did not insist as part of the joint recommendation that his probation run during any subsequent civil commitment. [Note 7] In addition, at no point during his civil commitment did he report to the probation department or insist that his probation commence. To the contrary, he repeatedly stated during his time at the treatment center that he would be serving three years of probation upon his release to the community. Accordingly, upon his release from the treatment center, the defendant reported to the probation department and began to serve his probationary term. It would not be until months after he was charged with violating conditions of his probation that the defendant would take the position he now espouses. In short, the defendant's words and conduct reflect his own understanding of the terms of his sentence, i.e., that his probation was intended to commence upon his release to the community. [Note 8]

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2. Legality of delay. The defendant contends that for multiple reasons, regardless of the intention of the sentencing judge, the delay in the start of his probation due to his civil commitment for an indeterminate period of time resulted in an illegal sentence. We do not agree.

a. Double jeopardy. The defendant first contends that a failure to commence his probation once he was committed as an SDP for an indeterminate period of time violated the prohibition against double jeopardy by increasing the severity of his original sentence [Note 9] and interfering with his right to finality. [Note 10] This argument fails.

We begin by noting that the guarantee against double jeopardy applies only to criminal punishment. See Hill, petitioner, 422 Mass. 147, 152, cert. denied, 519 U.S. 867 (1996). Commitment to the treatment center is meant to rehabilitate one who has been declared to be sexually dangerous, not to punish him or her. See Commonwealth v. Curran, 478 Mass. 630, 637 (2018) (Kafker, J., concurring). Because civil commitment for sexual dangerousness occurs as a result of, not punishment for, certain sexual offenses, the principles of double jeopardy do not apply. Hill, petitioner, supra at 151-154. See Luk v. Commonwealth, 421 Mass. 415, 422 (1995) ("Double jeopardy is not implicated if the sanctions can be entirely explained by a nonpunitive purpose"). Thus, the fact that the defendant was declared to be sexually dangerous and consequently civilly committed to the treatment center, thereby delaying the probationary portion of his criminal sentence, does not implicate his double jeopardy rights.

In any case, contrary to the defendant's claim, the delay in the start of his probation did not amount to an "eight-year extension" of his original probationary sentence. [Note 11] As discussed supra, the three-year probationary portion of his sentence was intended to, and did, commence upon his release into the community. Although

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the defendant's probation was delayed by his SDP commitment, he nevertheless received the same punishment that he and the Commonwealth jointly recommended, and that the sentencing judge imposed. No additional conditions, severe or otherwise, were added after the fact. See Commonwealth v. Goodwin, 458 Mass. 11, 12 (2010) (absent violation of condition, judge may add or modify conditions that increase scope of original probation only where there has been material change in probationer's circumstances and added or modified conditions are not so punitive as to significantly increase severity of original probation). The defendant, therefore, was not subjected to a punishment more severe than that for which he bargained. [Note 12]

Similarly, the finality of the defendant's sentence was not affected by his civil commitment. The defendant was sentenced to

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probation for a period of three years; the length of his probation never changed. Had he adhered to its terms, his probation would have terminated three years from the time it commenced, regardless of when it commenced. Compare Commonwealth v. Selavka, 469 Mass. 502, 506 (2014) (although judge may correct sentence by imposing statutorily required global positioning system monitoring, he or she may not do so one year after sentence was imposed where defendant already had served entire period of incarceration and had legitimate expectation of finality in sentence as initially imposed).

b. Due process. The defendant contends (for the first time on appeal) that the eight-year delay in the commencement of his probation also violated his constitutional rights to due process and fundamental fairness. This argument fairs no better. The cases to which he cites to support his claim, Commonwealth v. Vith Ly, 450 Mass. 16 (2007), and Commonwealth v. McLaughlin, 431 Mass. 506 (2000), are inapposite.

In Vith Ly, 450 Mass. at 16, a defendant's State prison sentences had been stayed pending an appeal that the defendant ultimately lost. Due to an error, the stay was not lifted following the appeal, and the Commonwealth did not seek to execute the sentences until sixteen years later. Id. at 16-17. After reviewing "the totality of the defendant's circumstances over [those] sixteen years," id. at 21, this court "conclude[d] that requiring the defendant to serve his sentences, at [that] point in time and on [those] facts, would violate the concept of fundamental fairness that is at the core of due process," Id. at 22. In so doing, the court noted that "[i]t is a basic principle that a defendant sentenced to incarceration has a due process right to serve the sentence promptly and continuously." Id. (execution of sentence must be "pursued with reasonable diligence").

In McLaughlin, 431 Mass. at 507, the defendant was found guilty of involuntary manslaughter and arson, but not criminally responsible of murder in the first degree. At sentencing, the judge stayed the defendant's State prison sentences on the involuntary manslaughter and arson convictions until his release from his civil commitment to Bridgewater State Hospital. Id. at 514. Without addressing any constitutional questions, this court held that the "stay was unwarranted" because there were no "exceptional" circumstances to justify straying from the "basic rule" that "[s]entences are to be executed forthwith" (citation omitted). Id. at 514, 520.

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In contrast to both Vith Ly and McLaughlin, here, as discussed supra, the defendant's sentence was delayed by an intervening event that was unrelated to his criminal sentence in order to realize the intent of the sentencing judge. See Sheridan, 51 Mass. App. Ct. at 77-78 ("The defendant did not suffer any adverse consequence with respect to his liberty due to the delayed commencement of his probation sentence, because [during the delay] he was still committed to the treatment center as a sexually dangerous person"). In addition, unlike in Vith Ly and McLaughlin, the portion of the defendant's sentence that is at issue here is probation, not incarceration. The question is whether, in the totality of the circumstances, it was fundamentally unfair to delay the commencement of the defendant's probationary term until he was released from the treatment center to the community. Having considered the purposes and goals of probation, as well as the "special" probation conditions the defendant bargained for, all as discussed supra, we conclude that it was not. [Note 13]

Conclusion. The order denying the defendant's motion to dismiss, and the finding that he violated conditions of his probation, are affirmed.

So ordered.