Ghostly Voice: That's SJC 12897
Commonwealth v. Victor M. Medina.
-: Attorney Stelmack.
-: Good morning, thank you.
May I please the court, Jason Stelmack for Mr. Medina.
Thank you for accepting this on direct appellate review.
Mr. Medina is requesting that this court reverse
the finding of violation of probation.
Because he argues that his probation should have ran,
should have begun when he was civilly committed
to the treatment center.
And therefore he was no longer legally on probation
at the time of the violation.
The plea occurred on September 17th, 2007.
He was 42 years old, four counts.
The first two counts,
he received a two-year house of correction sentence
with 576 days credit,
leaving him with a maximum of only five months left
on his sentence.
And this was an agreed upon plea under Rule 12.
I think that's important for two reasons.
First, the way that it worked
in the transcript of the plea hearing,
is The Commonwealth was asked what the recommendation was.
The Commonwealth stated the recommendation
and the judge actually just accepted.
-: But before you get to the Rule 12 argument,
can I ask you to just finish that timeline?
When would your client have ended probation
assuming no violation,
but for the SDP finding?
-: So I believe that would have been,
his sentence would have ran February 17th of 2008.
It was a three-year probation.
So it would've been February 17th of 2011.
-: Under The Commonwealth theory,
when does probation end?
-: Well, under The Commonwealth's theory
probation began when he was released in 2016.
So under their theory,
it was January 12th of 2019
is when his probation would have ended.
-: So we're talking an eight year difference in finality.
-: He was held for eight years
as a sexually dangerous person.
-: Mr. Stelmack, would it have made a difference
if the judge had clarified that probation would not start
until he was released to the community?
-: I think it would have clarified my first argument
but I still think the constitutional argument of finality
and fairness would still exist.
So it would certainly clarify the issues
that we have with Pacheco and Sheridan
in the conflicting language that is used.
But I think the constitutional argument,
I still think that would be prohibited.
But at the same time,
I think it's important to know
that it's a constitutional right,
that I think could be in most often times might be waived
by these individuals in these situations,
because it is important
that they at these SDP trials have the argument
that probation is a protective factor.
And so I think that,
despite the fact that I'm arguing
that probation should have ran while committed,
I think that defendants
could potentially waive that argument
if they want to at a SDP hearing at trial down the road,
be able to make that argument
(indistinct)
I'm sorry.
-: Your client did make that argument,
is that right?
-: Well, that's not completely clear.
There's no transcript of the SDP trial,
there's no docket of the SDP trial.
The probation department wanted to argue a preclusion.
The Commonwealth, through the Hamilton County
District Attorney's office wanted to argue preclusion,
submitted expert reports that made the argument
that his probation was a protective factor.
However, it's not clear.
I have no idea if that was what was argued
at his actual trial.
-: Mr. Stelmack, could you,
I know that Pacheco focuses on the actual language.
Could you compare the language
of the probation condition in this case
with the one in Pacheco and in Sheridan?
Just refresh 'cause I can't get them straight.
-: Sure still.
Sheridan came first.
It's important to know that it was a conviction after trial.
Sheridan was given a very long sentence
and then probation from and after any sentence
that he was going to serve.
And so in Sheridan,
the judge considered and intended
that there may be additional sentences
above and beyond what he was just sentenced on
and wanted probation to run from and after any sentence.
In Pacheco, it was from and after.
Incarceration was the language that was used
by the sentencing judge of Pacheco.
-: And in our case, it was what, sorry.
-: Well, so this is interesting.
In the actual transcript of the plea hearing,
as I was indicating,
the prosecutor was the one
who announced what they wanted the sentence to be.
It was an agreed upon sentence.
That prosecutor never said probation from and after.
The prosecutor just said the direct sentence
with probation for three years.
The judge never (indistinct)
-: The judge didn't say it either.
Even when the clerk announced it,
in the transcript,
it didn't say from and after it.
It became from and after in the docket
and in the clerk's log.
And I agree that that's probably usually what happens.
It's traditionally, when someone is sentenced
to a prison sentence
and then probation is generally is from and after.
(indistinct)
-: I'm just trying to figure out,
from and after what?
What's the language he used?
-: So the language in the docket,
by the clerk's log was from and after sentence
on count one of the indictment.
-: So it's exactly the language in Sheridan.
-: Well, no, Sheridan says any sentence.
I think that that's very important factor.
This case said from and after sentence
on count one of the indictment.
And just 10 days after I filed my brief,
the Appeals Court came down with Commonwealth v. Schmidt,
which is 98, Massachusetts Appeals Court 403
again issued September of 2020.
And they just clarified
that an SDP proceeding is not a sentence.
-: Can I ask you a question?
Are we dealing with the sentence in judge's intent?
-: The first part of my argument is that (indistinct)
-: So where the sentencing judge is a matter of intent,
says the conditions of probation
are to stay away from children.
There are very few children at the treatment center,
I would assume, right?
-: I would hope so.
-: I would hope so too.
So wouldn't that contemplate
that the supervision were to be done at the community level,
not inside our facility?
-: Well, yes and no.
And so there are obviously other probation conditions.
One is, no contact
and that is a condition
that obviously he could potentially violate.
-: And checking with probation officer,
a probation officer is not at the treatment center.
-: Well, they could still check in.
I mean, they can still use the phone.
They can still, I believe, use email.
They can still do that.
And well, that brings up a very good point.
You know, the point is that,
probation is best served when somebody in the community,
and that seems to be the intent.
However, this happens all the time.
There are so many defendants
that are serving a probation sentence in different courts
and they get committed to a criminal sentence perhaps.
-: It can be as a matter of discretion
by the sentencing judge.
For instance you could put someone on probation
during the sentencing
'cause I don't want them to harm a prison guard.
-: Right.
Judge Gaziano: Right?
-: Absolutely.
So you can definitely serve probation
while you're incarcerated in jail.
And my argument is that you can certainly serve probation
when you're committed civilly.
-: But we just have to figure out
what the judge probably intended.
-: Right, and again, in this case,
because it was an agreed upon plea,
the prosecutor was the one who articulated
what the agreement was.
And the judge has simply said,
well, I will adopt that.
-: If it's an agreed upon,
it's a contract between the defense attorney
and the prosecutor, right?
So if the prosecutor misstates the terms,
the defense attorney is gonna lump on a log
but just to say, yeah, whatever.
That's the job of the attorney.
-: Right, but I also think in this particular case
because he was receiving,
I think, you know, a very beneficial sentence on it
because they were originally rape of a child charge
and then it was reduced.
And then knowing that he was going to receive
that much time credit for time served,
I think it's incumbent upon the district attorney's office,
again, this is Hamilton County District Attorney's office
who are in the position to file the initial SDP petition
to say, here's this issue,
we want to make sure that our intent
as a sentencing recommendation,
that it is to be served.
-: The SDP consideration was part of the plea as well, right?
Judge Facto appropriately said,
hey, you know by pleading guilty to this,
you could be an SDP.
So it's not like it was a surprise to anybody.
-: He was warned of it
but The Commonwealth is in the position
to know whether or not they're going to file.
And again, my argument is they knew,
or should have known just five months
prior to his maximum release date
that that was their plan.
And they didn't say anything about it.
(indistinct)
-: It's not like they let your client
down the Primrose path, right?
They didn't say,
you know, rub their hands and said,
let's get this guy on an SDP.
Anytime someone pleads guilty to a sex offense nowadays,
as the judge recognized,
there's a possibility of an SDP.
So it's not like your client didn't have notice of this.
-: I'm not saying that he didn't have notice.
I'm just saying, when you look at the equities of the party,
The Commonwealth knows they're going to file this.
They're in the best position,
especially when they're the ones
to articulate what the sentence is.
-: I understand that they are moving party.
That's a different story, I get that.
Point well taken.
-: And also, can I follow up on that point
because that's the one thing that troubled me,
was the point you just made
before Justice Gaziano's question.
If he was so close with the amount of earn time that he had
to essentially a RAP date,
wouldn't that militate to the conclusion
that it was designed to run after the SDP commitment?
-: Oh no, because the SDP commitment wasn't certain.
-: It wasn't, you're right.
But to your point,
that if they were in a position saying that,
the charge was reduced in lieu of the plea on the lesser
or the other charge.
That if he was so close to a RAP date,
to use your words,
he was getting a really favorable disposition
of a case that was very serious.
And so again,
just kind of when you talk about the equities
or the practical view of this,
that this was certain that they were going to move for it.
And because the RAP date was so close
that it was almost inevitable
that it was going to have to be served
after an SDP commitment if they were ordered.
-: No, and as a matter of fact,
when you at the transcript,
his attorney, who is a party to this contract
as was stated earlier, was saying,
I want a transcript of this hearing.
It's going to be impounded.
And I want it not for SDP proceedings
but because of SOAR proceedings.
He was concerned
that SOAR was going to look at the rape charges
and not realize that he was pleading
and admitting to something much less severe.
And so I think when you look at the fact
that this was agreed upon,
and his attorney was saying,
hey, I want this transcript for SDP.
I mean, for SOAR and not for SDP.
I think it's an indication that the parties,
weren't considering an SDP commitment
even though he was obviously notified
and, just practically speaking,
I don't do SDP work with it.
I was a little surprised that somebody
who served a two-year house of correction sentence
was then committed for four times that amount civilly.
That kind of shocked me a little bit.
So I don't think
that an SDP commitment was obvious in this case.
And so, you know, I don't think
that that can be then inferred
that it was the intent of the sentencing judge.
Judge George: Thank you.
-: Thank you.
And I would just like to now move on
to the constitutional argument,
because I think that even if this court were to say
that the judge's intent was clearly
that it run from and after a civil commitment,
my argument is that,
because it's an indefinite commitment from one day to life,
that is really the antithesis of finality
which is guaranteed by the double jeopardy clause.
And it certainly violates issues of fundamental fairness.
-: So we'd have to reverse all of our SDP laws.
-: No, you would just have to indicate that.
-: If we find it's punishment,
we have to reverse our SDP law.
-: Well, and I'm not asking you to find that as punishment,
I'm asking that you realize
that a suspension of a sentence,
a tolling of a sentence,
the stay of a sentence for an indeterminate amount of time
that could be from one day
to the individual's entire life,
is not finality that is guaranteed.
That he has a right to finality.
He has a right to know
if he's going to serve as probation when he's 20
or when he's 30
or when he's 40
or when he's 50.
(indistinct)
-: Go ahead Justice Wendlandt.
-: Why don't you go ahead?
-: Isn't that the nature of the SDP law?
You don't know what's going to happen,
there is no element of finality.
If you take away that probation ability
to come on at the end of the SDP,
how does probation ever become meaningful in this context
and how would the security
or the comfort in releasing somebody
from the treatment center be present
if there's no probation after that?
Doesn't it help your client
to be able to be released to probation?
-: Right, there are times when it does
and then that's why they should have the opportunity
and the right to potentially invoke that.
But at the same time,
I think they have the right to say,
no, I have the right to a final sentence,
I have a right to do my probation when my sentence runs.
And I think that the treatment center itself
when you look at what happens there,
I mean, rehabilitation is the main goal
of the treatment center,
and that's certainly a goal of probation.
Public safety is a goal of probation.
And certainly at the treatment center,
it's a locked facility.
You are committed.
So it serves all the purposes of probation
in terms of rehabilitation and public safety.
And again, when you have,
for example, a condition where you're not supposed
to contact the alleged victim,
that is a condition that is a very important condition.
And that is a condition that can be served
while at the treatment center.
There are a number of probationary conditions
that can be served while at the treatment center.
And so when you look at the cases
that address the constitutional issues of staying a sentence
like The Commonwealth v. Ly case,
where it was a 16 year stay of a sentence,
and it was a stay,
basically, just because nobody noticed it.
This court said that that would be fundamentally unfair
to then impose that sentence 16 years later.
My argument is the same
that it's fundamentally unfair to impose probation
eight years after it was originally supposed to,
or when it could have began.
-: Aren't you sort of handcuffing the judge,
in saying that somebody who has been committed
as a sexually dangerous person,
cannot be put on probation afterwards,
unless the person agrees to it?
-: No, and I'm not saying that.
I mean, of course a judge could say,
I'm going to give you 15 years of probation.
That could happen.
-: And you could be civilly committed for 25.
Stelmack: Right.
-: Right?
-: Right, absolutely.
-: And then they'll come out
and they can't be on probation
once they're out in the community,
they can't be monitored.
That doesn't (indistinct)
-: And I'm not saying
that you cannot put somebody on probation
after a civil commitment from the treatment center.
I'm just saying that when you order a probationary sentence,
that's from and after a jail sentence,
then that probation runs from and after that jail sentence.
-: No, but I thought you were saying it was unconstitutional
to oppose it after an indefinite period of time
in the treatment center.
I'm saying it's unconstitutional
to stay it, to toll it, to delay it
until the end of an indefinite period of time.
-: I think that's what I just said.
I'm not understanding the difference.
-: Unless he agrees to it,
that's what you're saying?
-: Well, I'm saying that he can waive.
That's a right that he could potentially waive.
You know, if somebody is placed on probation for three years
and they're held as an SDP for only one year,
and they're released,
I'm not saying that probation is not served.
I'm saying, only that it cannot be delayed
for an indefinite amount of time.
-: So in that example you just gave,
you serve your sentence on count one,
then you're an SDP for a year,
but you had probation for three.
When does probation end?
When does it start?
-: It starts when you end your criminal sentence.
-: So in that case,
probation would have two years remaining.
-: Under that scenario, yes.
-: Okay, any other questions?
Great.
Stelmack: Thank you.
-: Attorney Sherman.
-: Good morning, and may it please the court.
Catherine Sherman, on behalf of The Commonwealth,
asking this court to affirm the motion judge's ruling.
To begin, I'd just like to clarify an aspect of the record.
The court had asked what the exact wording was
for the sentence in this court.
The docket reflects that probation run
from and after the committed sentence.
And the judge articulates this slightly differently.
It's on page 49 of the defendant's record appendix.
I believe it's one of the last lines of the transcript.
But the judge says, probation on and after count one.
Essentially the same,
but it is articulated both by the docket
and by the judge.
And that language falls squarely under Sheridan.
The language in Sheridan,
that probation run from and after the sentence,
is what is used here.
It reflects the (indistinct)
-: But why isn't the sentence on count one,
why doesn't that end when incarceration ends?
I guess I don't really understand
the difference between from and after the sentence
and from and after incarceration
and from and after the sentence in count one.
Are we putting too much into these words?
What is the significance of those three things?
-: Yes, your honor.
The Commonwealth's position is that,
the very narrow exception that's carved out in Pacheco
is not a meaningful exception.
That Sheridan ought to be the presumption,
that the language used in Pacheco
is not as unambiguous as the court.
-: The text is whether
what the sentencing judge's intention was.
So how do we garner an intention
from and after a sentence, incarceration,
from a sentence on count one?
What is the intention of the sentencing judge?
How do we divine that?
-: Yes.
(indistinct)
-: Why isn't it ambiguous?
And why don't we defer to,
you know, have any ambiguity in favor of the defendant?
-: Because the judge's intention in Mr. Medina's case,
and to generalize on probation sentences for sex offenders,
judges are working with the presumption under Sheridan,
that probation will run from and after.
In Mr. Medina's case,
he was sentenced in 2007,
six years after Medina.
I mean, I apologize after Sheridan was written.
So judges until Pacheco muddied the waters
were working under the presumption
that probation would begin
upon a sex offender's release into the community.
Whether that be immediately after incarceration
or after a sexually dangerous person civil commitment.
And not only was that articulated
and put into practice after Sheridan,
that's a practice that was also recognized
by this court in Bunting
both in mental health civil commitment context
and a sexually dangerous person civil commitment context.
In that case, the defendant,
at different times was civilly committed
under both of those types of civil commitments.
And this court recognized
that his probationary term do not begin,
do not run during either of those civil commitments.
It was not going to begin.
Yes.
-: I will tell you this,
if I were sentencing somebody,
during 19 years as a trial judge,
from and after count one,
I would think that would mean that
when count one had been served,
the person would go on probation.
I wouldn't have any difficulty thinking
that's what it would mean.
But if I thought that there might be an SDP
and it really made me squeamish
about what's going to be over
the person's head in supervision when he gets out,
then what you do is,
you'd impose a long period of probation.
A period of probation to be so long.
It might raise a constitutional concern
and you're not going to capture everybody.
But because you have that concern,
then you do a probation that's from and after
or even concurrent with the sentence for 10, 12 years.
But if I said from and after count one,
what I would mean was from and after count one.
-: And I think the difficulty that motion judges
and sentencing judges are facing right now
is that it is not clear
how they ought to be interpreting other judges sentences
or how they ought to be articulating their own.
And I think the court,
this court now has an opportunity
to make that abundantly clear.
-: Sure, that's how we feel.
(mumbles)
-: If we're writing,
you think Pacheco is wrongly decided, I get that.
What kind of guidance do we provide trial judges
who are concerned about SDP following (mumbles)
'Cause we don't want them
to just unnecessarily extend probation for longterm
if there isn't going to be an SDP proceeding.
They don't know if there's going to be an SDP proceeding.
What is the proper probationary approach here
given the uncertainty of the SDP?
-: Yes, I think there are three practical ways
that sentencing judges could be guided.
One way that a sentencing judge
could structure the probation,
is to have it be a longer probationary term
than they necessarily want the defendant to serve.
For example, 20 years of probation to be reassessed
after the defendant serves three years in the community,
if three years is really the term that they're looking for.
That's difficult because,
as has already been made clear by this court,
and SDP commitment may be decades.
So a sentencing judge is put in the position
of decades of probation
with intent to reevaluate upon a number of years
at liberty in the community.
Another way to approach this is,
if Sheridan is again reinforced as the presumption,
a sentencing judge can incorporate that structure
into the Rule 12 warnings during plea colloquies
that the defendant may be found sexually dangerous.
And if they are,
the probation term will begin after that.
Another option is,
if the judge would like probation to be running concurrent
with appeal or civil commitment.
-: Is that possible?
What you just said is obviously
what sort of we did retrospectively in Sheridan.
but is that a permissible probationary condition?
I sentence you to six years in prison
and then probation from and after immediately
or if there's SDP,
after the SDP process ends.
I mean, is that a permissible probationary sentence?
-: The closest analogy I have to address that
is a defendant who's pleading to a life felony.
For example, a life felony
and another charge, for example.
That defendant may be facing 20 years to life
on the first charge,
with either a committed sentence
or a probationary sentence to run from and after.
There's necessarily ambiguity
in when that second sentence will begin running.
However, that ambiguity does not invalidate
that second sentence
and does not constitutionally impair the defendant's ability
to accept or make that plea.
-: Counsel, in Sheridan,
the defendant was notified by probation
that he was to contact them
when he was going to be released.
Did this happen in this case?
Did he receive that notice for probation?
-: Yes, the defendant in this case
signed a probation contract at sentencing
asking him to report within 72 hours of release.
He did that after being released from his civil commitment.
-: Okay.
But when he was in the civil commitment,
was he reminded of that,
or did probation contact him in any way?
-: Unfortunately, your honor, I'm not sure about that.
However, the record appendix in this case
does show extensive contact between the defendant
and probation after he leaves
his sexually dangerous person civil commitment,
which I think speaks to his knowledge
of when his probation was to begin and end.
-: Because that's one of the factors that,
well, one of the facts in Sheridan,
is that the defendant was notified
when he went into the treatment center.
Contact us when you get out
and he would have had a period of time there
in which he could have challenged that.
-: Yes.
-: I'm just curious as to
that we don't know if that happened here.
-: I don't know if there was contact
between him and the probation department
while he was civilly committed.
However, I think that,
type that knowledge and information
can be inferred from his behavior
after his civil commitment.
The fact that he complied with his probationary conditions
never challenged whether or not he was on probation
until he was violated on that probation.
And as this court has noted,
he argued probation as a mitigating factor
during his sexually dangerous person trial.
-: Can I ask you something about that counsel.
You said that below
and you say that now,
you're not arguing any judicial estoppel anymore, right?
Because you haven't made the record.
-: No, I am not arguing that.
However, I'm bringing it to the court's attention
just to show another facet
in which this ambiguity in the law
is undermining the integrity of this civil process.
Defendants, the way the law stands now
have the opportunity to argue to an SDP civil jury
that their sexual dangerousness
is mitigated by the fact that they will be on probation
when they are released into the community.
Because of Pacheco and the ambiguity inherent in that,
they then have the opportunity
once released into the community
to challenge their status on probation.
And it's undermining the evaluation.
-: So one way to cure that is to just be clear,
probation runs from and after your incarceration,
period, full stop.
And I'm assuming that that's not your position.
-: That is not my position.
-: That would cure the problem
of these petitioners in SDP arguing
you can rely on probation
because then there'd be a clear rule.
-: Yes, that would cure it in that one context.
However, that creates a broader issue
in terms of interpreting sentencing judges intent
and really creates,
I would suggest a much larger issue
and more far reaching issue
in terms of probationary sentences
for sex offenders being nullified, essentially,
if they are to run concurrent
with sexually dangerous person commitments.
The purposes of probation are nullified.
-: Well, let me jump in on that point though.
So if we follow your argument,
let's say we believe you.
You look at Judge Facto's comments
about raising the issue
of potentially being subject to an SDP
and saying, the probation was intended to run
after the custodial sentence
and to start after any SDP commitment.
Now you're waiting into the constitutional argument, okay?
So now Attorney Stelmack's point about,
well, how are you going to have any finality there?
If that's the case,
in the probationary sentence,
after you've been released from custody,
is now just dangling out there for,
in this case, six, seven, eight years.
And you come out and you get a notice of violation
where now you can be reset
and still a custodial sentence
after you've already been released.
Doesn't that really then make the argument
that there's no finality in your situation?
There's no finality if we don't say that.
-: There is ambiguity in that issue.
However, the ambiguity
in terms of the probationary start date,
I think all needs to be looked at
in the context of why this person
is being subject to the intervening
civil sexually dangerous person commitment.
And that's because they are suffering
from a mental abnormality or personality disorder
that makes them unable to safely rejoin the community
and undeterred by criminal sanctions that may occur
if they pursue their sexual impulses, essentially.
So the person in that state of mind
cannot comply with probation effectively.
They're in a mental state
that makes that impossible.
And for that reason,
public safety cannot be ensured,
which is why they are subject
to the civil mental health commitment.
When they are released into the community
and liberty is essentially in their hands
with the assistance of the rehabilitative
structure of probation,
then they have the finite term of probation
to serve in the community while benefiting
from the rehabilitative resources of probation.
-: Can I follow up on Judge George's question?
And I can't remember the context.
We declared unconstitutional,
there's lifetime parole.
I'm trying to remember where we did this,
in the SOAR (mumbles)
One of my colleagues may sort of correct me
but we've declared
this sort of lifetime probation unconstitutional
in a certain respect.
I can't remember where we did it.
And is this potentially the equivalent
when we don't have an SDP end date in mind?
How do we get around that problem?
Does that ring any bells?
By the way, if any of my colleagues will tell me
where we did this, but we had these homeless, you know.
-: I think it was (mumbles)
-: And the difference here is in the finality of terms
in the probation sentence.
Though it may be unclear when that probation will begin,
it has an end date after it begins.
And that term reflects the judge's intent
in terms of rehabilitating this sex offender
and having them supervise for a concrete amount of time.
The amount of time that.
-: Just to be clear,
you're saying that three years is a finite period of time.
We don't know when it's going to start
but that's good enough?
-: And again, I'd analogize to the life felony situation.
An offender will not know
when that second on and after term will begin
if it's running from and after a life felony,
but that's an entirely proper sentencing structure.
-: But the difference is,
with an SDP, you have a interim period of time
where somebody is not sentenced
because an SDP is in the sentence.
-: That's correct.
It's in the intervening civil mental health commitment.
-: And he's not incarcerated, right?
Because he's committed,
but he's not incarcerated.
-: That's correct.
-: I guess that brings me back to my question,
is, if he's not sentenced
and he's not incarcerated,
the terms of from and after sentencing on count one
seem to suggest that it runs from and after the sentence,
which doesn't include the civil commitment.
I guess I don't understand the government's point here.
I don't understand, frankly
the Pacheco Sheridan distinction.
I think it's the same thing
either you're incarcerated or sentenced.
It seems to me your admissions just now
really highlight that.
That the intent,
the language can only be read one way,
that it runs from
and after the time this count one sentence has ended.
-: The government's interpretation is based on,
of course the appellate court holdings,
but also this court's interpretation
of those same sentencing phrases
and mental health commitments in Bunting, which is,
from the research The Commonwealth did,
the only case that we can find
that's most directly related to this.
And a notable (indistinct)
-: You have another argument, which is,
all the conditions make absolutely no sense
unless you're out in the community.
I think there are five conditions in this thing.
Only the first one could possibly apply
to the treatment center.
The language doesn't make sense about incarceration
or sentence after SDP
but the conditions only make sense
if you're released into the community.
So both sides, the language is incomprehensible
unless you put it in context,
both sides of this, right?
-: That's correct.
-: And so any ambiguity,
don't we favor the defendant's view?
I agree it's ambiguous.
But in that context,
I thought that we had case law saying,
you know, a tie goes to the defendant, essentially.
-: What I think is problematic here,
is that judges have been working off case law and guidance
that was telling them that structuring a sentence one way
will result in this effect.
But were doing that in good faith,
both in terms of the purposes
served by probation for the defendant
and what their intentions were for these sentences.
So when we're in a situation like Mr Medina's
and we're trying to divine a judge's sentencing and intent,
we have to consider that the judge was working
off case law and interpretation
from the Appeals Court in this court
that led them to believe
their sentence meant one thing versus another.
And what I do think is that,
the biggest picture or bottom line here is that,
every player in the criminal justice system,
every individual involved needs clarity
from this court going forward,
and also to look back
and better understand how to divine intent.
But I suggest that it rises impulse on Sheridan and Bunting.
Justice Gaziano: I'm sorry, go ahead, Chief.
-: I was just going to say,
assuming that we provide that clarity going forward,
I guess my question is,
can a judge say probation to begin
once the defendant is out in the community?
If we say, that's what you have to do to get this done,
is that constitutional?
Because it sounds like your brother is saying
that's not constitutional unless the defendant agrees to it.
I'm trying to figure out
what your position is
on the constitutionality of being able to say
that probation begins at some unspecified time
once the defendant is out,
back out in the community.
-: I do think that that would be a constitutional sentence
that gives the defendant fair notice
of the structure of their criminal sentence.
-: But what about the fact that it doesn't give you
a sense of the finality of the sentence?
-: And unfortunately,
because of the nature of these intervening civil commitments
which cannot be anticipated,
cannot be assessed
until the moment that the defendant is clinically evaluated,
that ambiguity is inherent
and needs to be accepted as per the constitution.
-: If it's unconstitutional,
that's just the way it is
or that it's not unconstitutional?
-: That the ambiguity is no different than the ambiguity.
Again, the same example that I keep repeating.
But also there are similar examples.
In chapter 279, Section Eight
requires that a crime committed
while on personal recognizance must run from and after
the sentence for which you were released
on personal recognizance.
There is naturally ambiguity in that sentencing structure
when one will begin, when one will end
because they're codependent as to be determined sentence.
And unfortunately, there are not many examples
other than the case I keep repeating, Bunting
where this is analyzed
in mental health or SDP commitments.
But in that case, the SJC makes it clear
that that's inappropriate start time
and structure to probation.
-: Justice Gaziano, did you have something?
Justice Gaziano: No, I'm all set, thank you.
-: Than you Counsel. -: Thank you.