Lifetime Community Parole
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G.L. c. 127, § 133C; G.L. c. 275, § 18; and G.L. c. 265, § 45 Update by Debra Krupp
On September 14, 2005, the Supreme Judicial Court issued its decision in Commonwealth v. Pagan, SJC-09332. As a result of Pagan, with the exception of defendants charged and convicted as second and subsequent sexual offenders, the imposition of lifetime community parole ("LCP") under the current statutory scheme is unconstitutional. Under the current statutory scheme, the imposition of LCP may be either mandatory or discretionary. Pagan leaves intact the mandatory imposition of LCP so long as the defendant has been charged and convicted as a second and subsequent offender. For the mandatory imposition of LCP to apply, the underlying complaint or indictment must charge the defendant as a second and subsequent sexual offender. It is not sufficient to convict the defendant of a qualifying sexual offense and then merely prove to the court that the defendant has an earlier conviction for a sexual offense. Under art. 12 of the Declaration of Rights a defendant has a constitutional right to be put on notice, by way of indictment or complaint, of any enhanced punishment s/he faces. Pagan reaffirmed that LCP is an enhanced penalty, and concluded that in order for the mandatory imposition of LCP to be applicable, the second and subsequent nature of the underlying offense must be alleged in the indictment or complaint. As far as I know, prior to Pagan the Commonwealth did not include the second and subsequent allegation in any complaints or indictments. Where LCP was imposed because the defendant had a prior conviction of a sexual offense, under Pagan the imposition of LCP should be vacated. Crimes Subject to Mandatory Imposition of LCP: LCP must be imposed for persons convicted of the following offenses: indecent assault and battery on a child (c.265, §13B); indecent assault and battery on a mentally retarded person (c.265, §13F), indecent assault and battery (c.265, §13H), rape (c.265, §22), forcible rape of child (c.265, §22A), statutory rape of child (c.265, §23), assault with intent to rape (c.265, §24), assault with intent to rape a child (c.265, §24B), kidnapping (c.265, §26), or an attempt to commit the foregoing offenses, if the defendant has been previously convicted of indecent assault and battery, rape, assault with intent to commit rape, unnatural and lascivious acts, drugging for sex, kidnap or of any offense which is the same as or necessarily includes the same elements of said offense, and the indictment or complaint properly alleges that the offense is a second and subsequent offense. Discretionary Imposition of LCP Eliminated by Pagan. Under the statutes as currently written, judges are given discretion to impose LCP after conviction of a wide variety of sexual offenses. However, in Pagan, the SJC held that the statutory scheme pertaining to the discretionary imposition of LCP is unconstitutional. The statutory scheme is unconstitutional because, although it allows for a hearing, the statute fails to articulate what finding a judge needs to make in order to determine that it is appropriate (or not) to impose LCP, and further contains contradictory standards of proof. In addition, the SJC alluded the possibility of Apprendi and Blakely problems where a judge is asked to determine facts not found by a jury. Specifically, G.L. c. 275, §18, paragraph 2, provides, "A finding by the court that such person shall be committed to community parole supervision for life shall be supported by clear and convincing evidence." Paragraph 3 of the statute provides, "If the judge finds, by clear and convincing evidence, that no reasons for community parole supervision for life ... exist, the judge shall not impose community supervision for life on such first offender." In Pagan, the SJC held that these provisions fail to adequately establish what finding the judge is required to make to determine whether or not to impose LCP, and the LCP scheme therefore is unconstitutionally void for vagueness. In addition, G.L. c. 275, §18 provides that the standard of proof at a LCP hearing is clear and convincing evidence. However, this standard of proof applies both to a court's decision to impose LCP and to a court's decision not to impose LCP. In Pagan, the SJC held that this provision was unconstitutionally vague because it failed to clearly establish which party had the burden of proof and because it left a gap between the two extreme positions. "What does the judge do if there are some reasons (as opposed to "no reasons") for imposing [LCP], but the reasons that exist fail to justify [LCP] "by clear and convincing evidence?" Defendant's Previously Sentenced to LCP: If you represented a defendant who has been sentenced to LCP, either as the result of a plea or after conviction at trial, you should file a motion with the trial court to correct the defendant's sentence pursuant Rule 30(a) of the Massachusetts Rules of Criminal Procedure. See Commonwealth v. Azar, 444 Mass. 72, 76 (2005) (Rule 30(a) motion to correct an illegal sentence is the appropriate vehicle to attack the legality of a suspended sentence). The motion should ask the trial court to vacate the imposition of lifetime community parole. |
