Commonwealth v. Melucci (and six companion cases) (Lawyers Weekly No. 11-124-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 14-P-1116 Appeals Court COMMONWEALTH vs. MICHAEL J. MELUCCI (and six companion cases[1]). No. 14-P-1116. Bristol. June 2, 2015. – August 31, 2015. Present: Cypher, Vuono, & Grainger, JJ. Practice, Criminal, Dismissal, Continuance. Complaints received and sworn to in the Taunton Division of the District Court Department on April 29, 2013. The complaints were ordered dismissed by Gregory L. Phillips, J. Yul-mi Cho, Assistant District Attorney, for the Commonwealth. CYPHER, J. The Commonwealth appeals from orders of the District Court dismissing with prejudice the complaints against the defendants charging various firearms offenses.[2] We reverse. Background. The defendants were arraigned in April, 2013, and the cases were scheduled for probable cause hearings in June, 2013. After requests for a continuance made by defense counsel, the probable cause hearings were rescheduled for August, 2013. Due to court congestion in August, 2013, the hearings were continued to September, 2013. At the September, 2013, hearing date, at least one defense attorney did not appear and the case was again continued to November, 2013.[3] For reasons unclear from the docket, the hearings were then continued to two dates in January, 2014, and then to February, 2014. No objection appears on the dockets. At the time of the probable cause hearing in February, 2014, the assistant district attorney assigned to the cases was on trial in Superior Court and was therefore unable to appear in District Court. A different assistant district attorney appearing on behalf of the Commonwealth asked for a continuance, noting for the judge that the cases were “going to be a disposition.” The judge denied the Commonwealth’s request and, sua sponte, dismissed the cases with prejudice for want of prosecution.[4] In March, 2014, the parties filed joint motions to vacate the dismissals with supporting affidavits from the assistant district attorney assigned to the cases and defense counsel. The affidavits detailed the plea negotiations between the parties and defense counsel averred that the defendants did not suffer any prejudice from the repeated continuances. The judge denied the motions without a hearing. The Commonwealth now appeals.[5] Discussion. “Dismissal with prejudice is appropriate in cases of egregious prosecutorial misconduct or on a showing of prejudice (or a substantial threat thereof), or irremediable harm to the defendant’s opportunity to obtain a fair trial.” Commonwealth v. Hernandez, 421 Mass. 272, 277 (1995) (quotation […]
Commonwealth v. Davis (Lawyers Weekly No. 11-123-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-953 Appeals Court COMMONWEALTH vs. CLOVICEL DAVIS. No. 13-P-953. Essex. January 13, 2015. – August 28, 2015. Present: Trainor, Vuono, & Hanlon, JJ. Constitutional Law, Double jeopardy. Practice, Criminal, Double jeopardy, Duplicative convictions, Instructions to jury, Argument by prosecutor. Robbery. Identification. Indictments found and returned in the Superior Court Department on October 7, 2009. The cases were tried before Timothy Q. Feeley, J. Cathryn A. Neaves for the defendant. David F. O’Sullivan, Assistant District Attorney, for the Commonwealth. VUONO, J. Following a joint trial in the Superior Court, a jury convicted the defendant, Clovicel Davis, and his brother, Curtis Davis, of two counts of unarmed robbery, in violation of G. L. c. 265, § 19(b).[1] Clovicel has appealed, claiming that his convictions are duplicative and, as such, violate the double jeopardy clause of the Fifth Amendment to the United States Constitution.[2] He also asserts error in the judge’s jury instruction on identification and the prosecutor’s closing argument. For the reasons that follow, we conclude there was no error at trial, but we agree with the defendant that the convictions are duplicative and that one of the indictments must be dismissed, and the case remanded to the Superior Court for resentencing on the remaining conviction. Background. On September 10, 2009, at about 4:00 A.M., Bruno Correa was working the night shift as a clerk at the Plaza Motel located on Route 1 in Peabody when he was robbed by two men whom he later identified as the defendants. Upon entering the motel lobby, Curtis feigned interest in renting a room and approached the counter. Once he was close to Correa he demanded money. Correa opened the cash drawer from which Curtis took an envelope containing $ 396. Curtis then attempted to hustle Correa out of the lobby, while Clovicel, who had remained near the door, snatched a gold chain from Correa’s neck and told Correa to give him his watch. As Correa began to remove the watch, he seized an opportunity to escape and ran to a nearby truck stop from which the police were called. Meanwhile, Curtis and Clovicel had driven away in a light colored sedan. A short time later, Curtis and Clovicel were stopped by the police in connection with an unrelated investigation. Because they matched the description of the robbers […]
Commonwealth v. Bior (Lawyers Weekly No. 11-122-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 14-P-395 Appeals Court COMMONWEALTH vs. AKUR BIOR. No. 14-P-395. Middlesex. June 8, 2015. – August 28, 2015. Present: Kafker, C.J., Rubin, & Milkey, JJ. Assault and Battery by Means of a Dangerous Weapon. Evidence, Credibility of witness. Dangerous Weapon. Words, “Dangerous weapon.” Complaint received and sworn to in the Malden Division of the District Court Department on September 30, 2011. The case was tried before Dominic J. Paratore, J. James R. Knudsen for the defendant. Nicole Marie Nixon, Assistant District Attorney, for the Commonwealth. MILKEY, J. Following a jury trial in the District Court, the defendant was convicted of assault and battery by means of a dangerous weapon. G. L. c. 265, § 15A(b). Although we conclude that the trial evidence was sufficient to support that conviction, we agree with the defendant that the introduction of evidence regarding pretrial probable cause hearings constituted reversible error. We therefore vacate the judgment. Background. 1. The incident. The defendant was a member of a local Sudanese community that met in a church in Malden. On the evening of August 21, 2011, a fight broke out in the church kitchen between the defendant and Mary Deng. The two women, whose husbands were cousins, had long had a fractious relationship. When the defendant entered the church kitchen, Deng was already there making tea and doughnuts. The witnesses (including Deng and the defendant) had widely divergent versions of what then transpired, e.g., regarding which of the women was the initial aggressor. However, many of the key facts are not in dispute. It is uncontested that the two women started calling each other names and throwing things (including pieces of dough) at each other. As the defendant herself admits, at one point she picked up a thermos from the table and threw it at Deng. According to Deng’s testimony, the thermos, which Deng had filled with hot water, hit her in the forehead and the hot water spilled onto her, causing serious burns. It is not clear if the water escaped from the thermos when the interior glass portion of it broke, or because the top came off when it was thrown. On the latter issue, Deng stated, in response to a question whether the top was on the thermos, “The top — like the top fell on the table because […]
Doe, et al. v. City of Lynn (Lawyers Weekly No. 10-147-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11822 JOHN DOE[1] & others[2] vs. CITY OF LYNN. Essex. April 9, 2015. – August 28, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Sex Offender. Municipal Corporations, By-laws and ordinances, Home rule. Constitutional Law, Home Rule Amendment. Civil action commenced in the Superior Court Department on April 12, 2012. The case was heard by Timothy Q. Feeley, J., on a motion for partial summary judgment, and entry of final judgment was ordered by him. The Supreme Judicial Court granted an application for direct appellate review. John A. Kiernan (Robert E. Koosa with him) for the defendant. John Reinstein (Benjamin H. Keehn, Committee for Public Counsel Services, & Jessie J. Rossman with him) for the plaintiffs. Amy M. Belger, Andrew S. Crouch, & Jennifer J. Cox, for Jacob Wetterling Resource Center & others, amici curiae, submitted a brief. HINES, J. In this appeal, we determine whether an ordinance imposing restrictions on the right of sex offenders to reside in the city of Lynn (city) is prohibited by the Home Rule Amendment, art. 89, § 6, of the Amendments to the Massachusetts Constitution, and the Home Rule Procedures Act, G. L. c. 43B, § 13. The plaintiffs, who represent a certified class of sex offenders subject to the ordinance, challenged the constitutionality of the ordinance on various grounds.[3] A judge in the Superior Court invalidated the ordinance under the Home Rule Amendment. The city appealed and we granted the plaintiffs’ application for direct appellate review. We affirm the Superior Court judgment based on our conclusion that the ordinance is inconsistent with the comprehensive statutory scheme governing the oversight of convicted sex offenders, and therefore, it fails to pass muster under the Home Rule Amendment and the Home Rule Procedures Act.[4] Background. We summarize the undisputed facts as drawn from the summary judgment record. 1. The ordinance. The city adopted an “Ordinance Pertaining to Sex Offender Residency Restrictions in the [city]” (ordinance) on January 12, 2011. The stated purpose of the ordinance is to “reduce the potential risk of harm to children of the community by impacting the ability of registered sex offenders to be in contact with unsuspecting children in locations that are primarily designed for use by, or are primarily used by children.” Observing that […]
Pfannenstiehl v. Pfannenstiehl (Lawyers Weekly No. 1-121-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-906 Appeals Court 13-P-686 13-P-1385 CURT F. PFANNENSTIEHL vs. DIANE L. PFANNENSTIEHL (and two consolidated cases[1]). Nos. 13-P-906, 13-P-686, & 13-P-1385. Norfolk. February 11, 2014. – August 27, 2015. Present: Kafker, C.J., Cypher, Kantrowitz, Berry, & Fecteau, JJ.[2] Divorce and Separation, Division of property, Findings, Attorney’s fees. Trust, Spendthrift provision. Contempt. Practice, Civil, Findings by judge, Contempt, Stay of proceedings. Complaint for divorce filed in the Norfolk Division of the Probate and Family Court Department on September 22, 2010. The case was heard by Angela M. Ordoñez, J.; a complaint for contempt, filed on January 24, 2013, was also heard by her; and a motion to stay enforcement of the judgment pending appeal was considered by her. A motion to stay the proceedings pending appeal was considered in this court by Vuono, J. Robert J. O’Regan for the husband. Jillian B. Hirsch for the wife. BERRY, J. The main issue presented — in what is the lead of three appeals[3] related to these divorce proceedings — concerns the decision of a judge of the Probate and Family Court (probate judge or judge) to include in the marital estate, for purposes of the G. L. c. 208, § 34, division, the husband’s interest in a multi-million dollar trust established by the husband’s father (the 2004 trust[4]). The principal of the 2004 trust was, in the main, associated with funding from the family’s operation of corporations that own and operate for-profit colleges, including Bay State College in Massachusetts and Harrison College in Indiana.[5] The husband claims as error the assignment of $ 1,333,047 of the trust value to the wife and the requirement that the husband pay $ 48,699.77 monthly for twenty-four months to effectuate the division of assets set forth in the amended judgment.[6] As to this issue, the husband, citing a spendthrift provision in the subject trust, argues that the 2004 trust value and income therefrom were isolated, were not within the marital estate, and, therefore, should have been excluded from consideration under G. L. c. 208, § 34.[7] This spendthrift isolation theory, as detailed infra, is advanced notwithstanding that the 2004 trust had made distributions to the husband — including an outright $ 300,000 in 2008 followed by 2009-2010 monthly payments of several thousand dollars — all of which were distributed from the 2004 […]
Categories: News Tags: 112115, Lawyers, Pfannenstiehl, Weekly
Commonwealth v. Freeman, et al. (Lawyers Weekly No. 10-146-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11745 COMMONWEALTH vs. BRIAN FREEMAN & another.[1] Suffolk. February 4, 2015. – August 27, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Jurisdiction, Superior Court, Juvenile Court. Superior Court, Jurisdiction. Juvenile Court, Jurisdiction. Constitutional Law, Equal protection of laws. Statute, Retroactive application. Indictments found and returned in the Superior Court Department on September 10, 2013. Questions of law were reported by Carol S. Ball, J. The Supreme Judicial Court granted an application for direct appellate review. Barbara Kaban, Committee for Public Counsel Services, for Micah Martin. Donna Jalbert Patalano, Assistant District Attorney, for the Commonwealth. Craig R. Bartolomei, for Brian Freeman, was present but did not argue. Afton M. Templin, for Children’s Law Center of Massachusetts & another, amici curiae, submitted a brief. Lael E.H. Chester & Naoka Carey, for Citizens for Juvenile Justice & others, amici curiae, submitted a brief. DUFFLY, J. On June 12, 2013, the defendants, Brian Freeman and Micah Martin, both seventeen years of age, were arraigned in the Dorchester Division of the Boston Municipal Court Department on charges of unarmed robbery and assault and battery. Three months later, on September 10, 2013, a grand jury returned indictments against the defendants on the same charges. On September 18, 2013, the Governor signed “An Act expanding juvenile jurisdiction,” St. 2013, c. 84 (act), which, with certain exceptions, extended the jurisdiction of the Juvenile Court to children who are seventeen years of age at the time of committing an offense.[2] The act provides that “no criminal proceeding shall be begun against any person who prior to his eighteenth birthday commits an offense against the laws of the [C]ommonwealth . . . without first proceeding against him as a delinquent child.” G. L. c. 119, § 74, as amended through St. 2013, c. 84, §§ 25, 26. The defendants filed motions to dismiss, arguing that the act stripped the Superior Court of jurisdiction over their pending charges, and that the Juvenile Court therefore had sole jurisdiction. The defendants argued that the act should be applied retroactively to seventeen year old defendants who had criminal charges pending against them as of the act’s effective date, and that a failure to apply the act retroactively as to such defendants would violate the equal protection guarantees provided by […]
Commonwealth v. Bruneau (Lawyers Weekly No. 10-145-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11820 COMMONWEALTH vs. PETER BRUNEAU. Hampden. April 7, 2015. – August 27, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Homicide. Mental Impairment. Practice, Criminal, Appeal, Judgment. Indictment found and returned in the Superior Court Department on October 1, 2008. The case was heard by Richard J. Carey, J. The Supreme Judicial Court granted an application for direct appellate review. Rebecca A. Jacobstein, Committee for Public Counsel Services, for the defendant. Jane Davidson Montori, Assistant District Attorney, for the Commonwealth. DUFFLY, J. We are asked in this case to determine whether a defendant who has been found not guilty of murder in the second degree by reason of mental illness may appeal from his conviction pursuant to G. L. c. 278, § 28, or, whether, as the Commonwealth contends, the sole avenue by which such a defendant may seek to appeal is a petition filed pursuant to G. L. c. 211, § 3. In 2008, the defendant was indicted on a charge of murder in the first degree for the stabbing death of the victim, George Roy, but was repeatedly found not competent to stand trial until 2013. At that time, having heard testimony by a medical expert and having considered representations by defense counsel, a Superior Court judge concluded that the defendant was then competent. The Commonwealth filed a nolle prosequi with respect to so much of the indictment that charged murder in the first degree, and after a colloquy, the defendant waived his right to a jury trial and agreed to the entry of stipulations to numerous facts. The defendant’s motions for a required finding of not guilty, made at the close of the Commonwealth’s case and at the close of all evidence, were denied. The sole defense offered by the defendant at trial was that, at the time he committed the murder, he lacked criminal responsibility due to mental illness. In his closing argument, the defendant’s counsel conceded that the defendant killed the victim by “stabbing him repeatedly.” The defendant was found not guilty by reason of mental illness and ordered hospitalized at Bridgewater State Hospital pursuant to G. L. c. 123, § 16. The defendant filed an appeal under G. L. c. 278, § 28, which the Commonwealth argues was inappropriate, and we granted […]
Commonwealth v. Aldrich (Lawyers Weekly No. 11-120-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12-P-787 Appeals Court COMMONWEALTH vs. ROBERT ALDRICH (NO. 1). No. 12-P-787. Middlesex. March 4, 2015. – August 26, 2015. Present: Cohen, Hanlon, & Sullivan, JJ. Larceny. Attempt. Practice, Criminal, Duplicative convictions. Indictments found and returned in the Superior Court Department on February 7, 2008. The cases were tried before Christopher J. Muse, J., and a motion for a new trial was considered by him. Robert Herrick for the defendant. Kevin J. Curtin, Assistant District Attorney (Nicole Allain, Assistant District Attorney, with him) for the Commonwealth. SULLIVAN, J. The defendant, Robert Aldrich, appeals from his convictions of unarmed burglary in the nighttime (count I), two counts of larceny over $ 250 (counts II and III), attempted larceny (count IV),[1] and from the order denying his motion for new trial. He contends that the two larceny convictions are duplicative, and that his conviction of attempted larceny is duplicative of one of the larceny convictions. We conclude that the two larceny convictions are not duplicative because the facts support two convictions based on two separate takings. We further conclude that attempted larceny is a lesser included offense of larceny, and that, on the facts presented, the attempted larceny conviction is duplicative of one of the larceny convictions.[2] Background. On January 6, 2008, at approximately 5:30 A.M., a 911 dispatcher received a telephone call from the owner of a single-family home in Cambridge. The caller relayed that she had been awakened by the sound of a door closing and, upon investigation, had found an uninvited man in her home. Two police officers observed a man, later identified as the defendant, at the front door of the caller’s home, along with a stack of items on the front porch that later were identified as the homeowner’s possessions. As the officers approached, the defendant slammed the front door and ran inside toward the back of the house. Other police officers at the rear of the house then saw the defendant jump through an open window “Superman-style” and land face down in the snow. The police found an eyeglass screwdriver underneath the defendant. An officer on the scene compared the screwdriver with marks found near the latch of the window, and testified that the marks were consistent with the screwdriver found underneath the defendant. After the defendant’s arrest, the […]
Doe No. 3839 v. Sex Offender Registry Board (Lawyers Weekly No. 10-144-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11604 JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 3839 vs. SEX OFFENDER REGISTRY BOARD. Plymouth. September 3, 2014. – August 21, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, & Lenk, JJ. Sex Offender. Sex Offender Registration and Community Notification Act. Delinquent Child. Constitutional Law, Sex offender. Due Process of Law, Sex offender, Retroactive application of statute. Statute, Retroactive application. Practice, Civil, Sex offender. Administrative Law, Findings. Civil action commenced in the Superior Court Department on February 18, 2011. The case was heard by Christopher J. Muse, J., on a motion for judgment on the pleadings, and a motion for relief from judgment and for reconsideration was also heard by him. The Supreme Judicial Court granted an application for direct appellate review. Matthew J. Koes for the plaintiff. William H. Burke for the defendant. DUFFLY, J. In 1990 and 1991, the plaintiff, John Doe, Sex Offender Registry Board No. 3839 (Doe), was adjudicated a delinquent juvenile by reason of sex offenses he committed in 1989 and 1990, when he was fourteen and fifteen years old. Following his adjudications, Doe was committed to the Department of Youth Services (DYS), where he remained for over nine years, pursuant to orders extending his commitment beyond his eighteenth birthday. In April, 2000, Doe was committed temporarily to the Massachusetts Treatment Center (treatment center) for evaluation on the Commonwealth’s petition that Doe be civilly committed as a sexually dangerous person (SDP); thereafter, he was found to be sexually dangerous and was civilly committed to the treatment center for a period of from one day to life. In January, 2011, twenty years after Doe committed the offenses, the defendant Sex Offender Registry Board (SORB) classified him as a level three sex offender. In September, 2013, Doe was determined to be no longer sexually dangerous, and was discharged from the treatment center. Doe contends that the sex offender registration statute, G. L. c. 6, §§ 178C-178Q (registration statute), as applied to him, constitutes an ex post facto punishment, and violates his rights to due process and protection against double jeopardy, because the requirement that he register as a sex offender was triggered by juvenile adjudications that preceded the statute’s enactment. See St. 1996, c. 239, § 1. He maintains also that, even if the registration statute […]
Doe No. 7083 v. Sex Offender Registry Board (Lawyers Weekly No. 10-143-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11806 JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 7083 vs. SEX OFFENDER REGISTRY BOARD. Plymouth. March 5, 2015. – August 21, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Sex Offender. Sex Offender Registration and Community Notification Act. Constitutional Law, Sex offender. Due Process of Law, Sex offender. Practice, Civil, Sex offender. Civil action commenced in the Superior Court Department on April 2, 2012. The case was heard by Paul E. Troy, J., on a motion for judgment on the pleadings. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Ethan C. Stiles for the plaintiff. David L. Chenail for the defendant. Matthew J. Koes for John Doe, Sex Offender Registry Board No. 3839, amicus curiae, submitted a brief. DUFFLY, J. The plaintiff, John Doe, Sex Offender Registry Board No. 7083 (Doe), was serving a criminal sentence at the Massachusetts Treatment Center (treatment center), and also had been civilly committed to the treatment center as a sexually dangerous person (SDP), when the defendant Sex Offender Registry Board (SORB) notified him in September, 2009, of its recommendation that he be classified as a level three sex offender, pursuant to the sex offender registration statute, G. L. c. 6, §§ 178C-178Q.[1] Doe requested a hearing to challenge SORB’s recommendation. When that classification hearing took place, in February, 2012, Doe’s earliest parole eligibility date was ten months away, and a trial on Doe’s petition for discharge, pursuant to G. L. c. 123A, § 9, had been scheduled for a date eighteen months away.[2] Because each date was not only distant in time, but also only a potential date on which he might have become eligible for release, rather than a known release date, Doe requested that the classification hearing be continued to a date after, or shortly before, trial on his petition for discharge. In the alternative, Doe sought to have the classification proceeding left open after the hearing, so that his classification would not become final, and current evidence of his risk of reoffense would be available for the hearing officer to consider when his discharge was imminent. The hearing examiner denied the requests and classified Doe as a level three sex offender. Doe sought review in the Superior Court pursuant […]