-: SJC 1, 3, 2, 1, 2, Commonwealth v. Timothy M Rodrick.
-: Okay. Attorney Crane.
-: Good morning.
May I please the court,
Edward Crane on behalf of Timothy Rodrick.
The threshold question here is whether
that it's the Commonwealth burden
to prove the reasonableness of GPS monitoring.
In Feliz, this court concluded
that GPS monitoring constitutes a warrant less search.
It is well established that the Commonwealth
bears the burden of proving the reasonableness
of a warrant less search.
Thus it must follow that the Commonwealth
bears the burden of proving the reasonableness
of GPS monitoring.
The Commonwealth itself appears
to concede this point
as it makes no argument to the contrary in its brief.
The next question is whether the underlying facts of the
defendant's conviction can be relied upon to
support the imposition of GPS monitoring
and the absence of evidence linking
these facts to an increased risk of recidivism.
In Feliz, this court made it clear
that the reasonableness of GPS monitoring
depends on the defendant's risk of re offending.
Thus, if the underlying facts of the offense-
-: But why, why, why do you say that?
In Feliz, we say the absence of evidence
demonstrating risk of recidivism
related to the defendant, tilts the balance
against concluding that GPS monitoring is reasonable
under the circumstances.
Why is recidivism dispositive
in an individualized determination of reasonableness
when at the same time you reference in your brief,
and I believe in Feliz,
that we're dealing with a constellation of factors.
Edward: Yes. I, I think the constellation
of factors though go to the risk of recidivism.
-: Oh.
Edward: So there, there should be a constellation
of factors that are considered when answering the question
of whether the defendant-
-: But, how could, how could that be if the absence of
the demonstration of recidivism only tilts the balance
against GPS monitoring,
and why, why aren't many other factors also in play.
And I think you're about to talk about the information about
where the alleged victim lives and whether or not
that's a permissible factor, but putting that aside and,
and just asking as a general matter,
protection of the alleged victim pretrial.
-: Yes. I think that, well, the, the,
the factor, protection of the victim,
I think is, it would certainly be a factor that could be
considered, but it ultimately boils down to,
again, recidivism cause the level of protection
that's required ultimately depends on
the defendant's risk of recidivism.
-: Is it, isn't that kind of a chicken and egg thing?
Because if the defendant visits the victim,
they've committed a crime and that's recidivism, right.
So we're protecting in the victim from the defendant
or trying to,
that's a reasonable goal of, of, of these monitoring,
correct? You would agree with that.
-: Yes.
-: Right. So it's kind of semantics, isn't it?
-: In some respects. Yes.
But I, I,
I believe that ultimately in the situation
that the offense has been committed, so.
-: Right. No, but the, the, the point is, you know,
I think Feliz was a great case
for the defense to bring because
there was some person viewing child pornography
in their basement and it was, right?
And that was a perfect case of challenges.
Now, the next challenge,
which you appropriately bring in a case
is where there's a live victim
in whether or not in every case where there's a victim,
do you get GPS monitoring?
And I think that's essentially the issue.
Does that tip the balance to reasonableness?
-: Yeah. And, and, and your honor, I think that that's a,
that's a great point.
The, the, Feliz was on one end of the extreme
and this case, I would say falls,
I don't think it's on the opposite end of the extreme,
but it's somewhere in the gray area that exists.
Cause there has been no-
-: And we've cut you off twice,
but give us the point of, well,
why it's not reasonable to, to, to exclude this,
have an exclusionary zone
from where this person lives, the victim.
-: Why it wouldn't be reasonable.
-: Right.
-: Well, ultimately the reason that GPS monitoring
wouldn't be reasonable in this case is
because there's no evidence that this defendant
is at risk of re offending.
-: He's a level two, correct?
-: Right. He is a level two. Correct.
-: Right.
-: And I, I, but I would contest that.
That's really the only factor that the Commonwealth has put
forward with respect to his risk of recidivism.
And I don't think that that can carry
the day for the Commonwealth.
-: So first of all,
we can't say no because it is level two for whatever
that that has, but why can't the,
the underlying allegations used after the, the,
the defendant alleged rape
when the alleged victim had no ability to consent?
What does that tell us perhaps
about possibility of recidivism?
Edward: I, I don't know.
And I think that's all ultimately the,
the what's lacking in this case,
if the Commonwealth can put something forward that says
defendants who take advantage of witness, of victims who are
intoxicated or unconscious, that suggests a level of,
of recidivism that increases the likelihood of recidivism,
then that factor would be relevant.
-: Well, what's, what's the point of
a stay away if you can't enforce it.
-: Right.
Which actually makes no sense. Right.
Because that was the thing where people would ask for
stay away orders and say, okay,
will you point your finger and say,
stay away from that person, stay away from that area.
I mean, without a way to enforce
a geographical limitation or
without a way to say, stay away from a particular person,
how would you enforce that?
-: Well, the enforcement mechanism
is ultimately through the court.
If, if the defendant is-
Gaziano: Right. That's what,
that's what the GPS does.
-: And that that's where those ELMO notes come in.
And, and the, the, the maps come in and say, look,
there it is right there.
-: But I would assert that, that,
that stay away orders are instituted every day
in the courts, throughout the Commonwealth,
that don't involve GPS monitoring.
And those orders can still be effectively enforced
through, if the defendant violates a stay away order,
the whatever witness, whatever evidence they had,
that they, that he did that, go to the probation officer,
go to whoever's responsible for supervising the defendant
and, and report that.
So, I mean, I think it's a stretch to say that
if stay away, if stay away orders
have no value whatsoever without GPS monitoring,
then it, it seems like, you know,
in every district court in the Commonwealth
there's stay away orders
that are issued every day without GPS monitoring.
We shouldn't be doing that.
-: But, this is, this isn't the,
this is a rape though, right?
Isn't that different?
It's not the typical case that comes in where
there witnesses is the person that's the clerk
at, at, at, at the, at, at the store
where they shoplifted from, stay away from the store.
Okay, fine. But this is a rape. Isn't that different?
-: Again, I, I, I, I think the, what I would say is that I'm,
I'm ultimately the,
the lack, there's a lack of evidence here,
with respect to whether that is,
does that make a difference?
Because it's ultimately what the point of the GPS monitoring
is to make sure that this doesn't happen again.
And if there's no evidence as to whether
someone who commits the offensive rape
is more likely to re offend than someone who commits
say the offensive armed robbery at a, at a,
at a convenience store, it,
it ultimately there has to be this link between the offense
and the risk of recidivism.
-: Do you think there is a difference in the circumstances of
different rape cases or rape charges so that
an aggravated rape might be different than, rape?
-: Absolutely.
-: And how would that manifest an explanation
with regard to the GPS condition?
-: I think with respect to a more aggravated case,
there's going to be underlying facts there
that the Commonwealth can easily point to
that scientifically have been proven
to increase the risk of recidivism.
-: What do we do with the fact that in,
for the SORB hearing right?
They, they have a list of factors.
And one of the factors is taking advantage,
of a victim who is in this case altered.
And that, that is a factor that SORB considers
in setting the level two,
isn't that enough for the Commonwealth
to satisfy its burden.
The fact that it's already been, you know,
social science has shown that this is an aggravating factor,
and that's why it ends up on the list that SORB uses
in setting, whether somebody's a level one, two or three.
-: I think at, at this point, procedurally,
I don't think it's appropriate to rely on the SORB factors
when they, they, they weren't discussed below.
They weren't relied upon by the Commonwealth.
They weren't discussed by the judge.
Certainly I think it, it,
the SORB factors are based on scientific evidence.
So if the Commonwealth were to go back and, and, and,
and say, this case was remanded,
then the Commonwealth introduced the SORB factors
and sort of the science behind that specific SORB factor,
certainly that would be a factor that would support the
reasonableness of GPS monitoring.
I think why it can't be done here is it,
it wasn't introduced at, at, at the, the-
-: The Judicial notice of the SORB factors.
-: I think the court can take judicial notice
of what the SORB factors are.
I'm not sure that the court can take judicial notice
at this point of, of the underlying scientific studies.
-: Mr. Crane, how,
how have these Grady hearings born out
with respect to named victims?
I, I know you looked a little bit at this.
Can you tell me more.
-: Surprisingly, there's not as much,
there hasn't been as much litigation
as one would expect in these cases.
And I, I mean, just anecdotally,
what I might suggest is that the reason we're not seeing as
much litigation with respect to offenses involving victims
is the defendant often is still serving the sentence.
And the defendant is there's no incentive because-
-: Grady's so new, essentially.
-: Essentially. (laughs) Yes, your honor.
Gaziano: Right, okay.
-: Likely wait until the end of the sentence
to challenge the, the GPS monitoring.
But there really hasn't been many cases that there's a few
unpublished cases from the appeals court
involving contact offenses,
but compared to this case much more serious offenses.
And in, I think the majority of those cases, evidence of,
of, of compulsive behavior, repetitive sexual offenses.
-: I thought the two factors that were most helpful to you,
you haven't mentioned, cause you're,
you're fighting an uphill battle on, you know,
he's a level two and to rape,
but the two things that are best for you,
I thought were one, she has no address.
Right? She's she seemed, so the,
what the GPS is gonna do is a little unclear
or and I wrong on the facts on that.
Does she have a, when they put the GPS in place,
does she have an,
an identified address or is she
still sort of homeless and moving around?
-: Well, the, at the motion hearing,
there was no evidence that, well,
really the evidence was that the Commonwealth was not aware
of the, of the victim's address.
-: So, so this isn't one where we can say, okay,
here's where she works or here's where she lives.
And a GPS can provide us protection in that respect. Right.
So that,
or I'm just trying to help you out here for a second.
Is that, is that right?
-: Yes. I, I, I should note after,
after the fact the Commonwealth has moved to
expand the record with evidence that has an exclusions on-
-: Okay. So she lives a half a mile away.
Why cannot that not be part of the
reasonableness analysis at this point?
-: Again, the position of the defendant
is that this had to be introduced
at the time of the motion hearing.
I mean, it's, it's much like a motion to suppress,
where the, the, the, the Commonwealth
has its its burden to satisfy.
And can't sort of, after the fact establish its burden
through expanding the record.
-: Didn't Judge Locke have those same questions
and they got answered to his satisfaction.
-: We, we never went back in front of Judge Locke
after the fact after this motion hearing.
-: So it was only the one hearing in front of him.
Edward: Yes. When he ruled,
when he ruled on the motion at that point in time,
there was no knowledge of where the civ-there hadn't been-
-: I thought he had said supplement this
or give me some more information.
I thought that was part of the hearing.
-: It was talk of doing that, but it,
it ultimately didn't go in front of him.
-: So, so when Judge Locke does this, he doesn't know,
does she have an, a place of employment?
Is she employed or housed when,
when the GPS, cause the two big purposes, right.
Are to keep you away from the house
and keep you away from the work, right?
Edward: Yes.
-: Do we, is she employed or homed?
Does she have a home?
-: I know now that the, the Commonwealth.
-: I'm just talking about the record before the judge.
Not, not what we, cause that's-
-: the record before the judge
did not reflect either a residential address
or a place of employment. It, it-
-: So the two things that go for you are that,
and that it's sort of a crime of opportunity.
He's, she's sleeping in his chair and he,
he has no other record of any other criminal,
any other sexual offense. Right.
He still gets a level two, but he's never,
there's no other record of any sexual misconduct.
Is that right?
Edward: Yes.
-: So those are the two factors
we've gotta weigh in your favor.
Cause otherwise you're, you're running up a mountain
you gotta rape and you got a level two.
-: Yes, your honor.
I would say the factors you've pretty much covered it,
but the, the,
the factors that would support the defendant's position here
is the lack of criminal record.
It's not just that he-
-: Yeah. And the, the GPS,
it's not clear exactly what the GPS is it gonna do?
Edward: Yes.
-: Mr. Crane, I found what I was looking for,
in the motion here in front of Judge Walk, you say,
"I'd ask for a motion reconsider if there cannot be
established an address for the victim."
So basically you put the burden on yourself for that,
and the court said, "Well, there's a concern.
And if there's no meaningful exclusion zone,
I'll hear you later."
And then nothing happens.
Correct? Is that.
Edward: Yes.
-: So you answered who has the burden of proof?
What is the burden of proof?
-: The burden of proof is, is simply reasonableness is, is-
-: But by a preponderance or what, what, what do we-
-: It's always difficult to define reasonableness,
but I think it's
reasonableness, ultimately the facts I think are, are,
would be determined by a preponderance to the evidence at,
at a, cause, this is again, it's essentially a-
-: The reason I ask is because the SORB burden of proof
is by clear and convincing evidence.
And if SORB has concluded that it's a level two,
why isn't it meeting the Commonwealth burden
to rely on the level two?
If, if the burden here is by preponderance.
-: The main problem with simply relying
on SORB's classification is the, it,
it seems totally counterintuitive to
what the court said in Feliz,
in which it said there has to be individualized hearings
and also that mandatory imposition of GPS monitoring on a,
on a large swatch of the population is improper.
If the court, if the trial courts could simply say,
you've been classified as a level two,
that means GPS is reasonable.
It, it seems to be doing exactly or,
or taking out the individualized assessment
and also really imposing
that mandatory GPS on a large swath of the population.
So it just doesn't seem to the comport with Feliz,
the relying simply on the SORB classification.
And it seems like this court would've, if that was the case,
this court would've said so in Feliz
and saved trial courts a lot of time,
if that classification level could
carry the day for the Commonwealth.
Wendlant: Okay. Thank you very much, counsel.
-: Thank you. Your honors.
Wendlant: Attorney Black.
-: Good morning your honors,
may it please Johanna Black for the Commonwealth.
Now protection of the public
punishment and retribution are all valid goals
of sentencing and probation-
Lowry: Before you,
before you really get into that,
it would help us know what we can and cannot consider.
-: Sure.
Lowry: So why can we consider
where she lives now?
-: Why can you?
-: Yes.
-: If you read through the motion hearing
Judge Locke operated under the presumption
that the victim had an address that would be put into ELMO.
And I think where the law supports,
the presumption of regularity and certain things like that,
Judge Locke was entitled to presume
that there would be an address, a residential address
obtained and put into ELMO.
And he did as Justice Gaziano noted,
put it on the defense
when the defense made the argument that if a, if a,
if a an effective exclusion zone
couldn't be entered into ELMO,
then that would affect the analysis.
Judge Locke gave the defendant the opportunity
if that were to arise to come back.
-: How does the, I mean, I, it's a question.
It's not a rhetorical question,
but how does the defendant do that?
So the burdens on the proof is on the Commonwealth, right?
To prove this,
he, how does he know where the victim
who's someone who moves about lives?
I mean, he obviously knew her
when she was living in his chair,
but it's a little different after she's,
he's been convicted of raping her.
-: Well, well, presumably when he's released from incar-
-: How's he gonna know whether she has a home address or not,
isn't that really- Joanna: Well leading up to-
-: Isn't that isn't that really the
responsibility of the Commonwealth?
Joanna: And the Commonwealth obtained it
and gave it and gave it to probation
and probation obtained it.
-: But did they give it to Judge Locke?
-: No, but I think Judge Locke presumed
that if the issue weren't brought back
beforehand and there really there wasn't an issue.
Kafker: It's just weird.
I mean, I'm not saying it's wrong, I'm just saying it's odd.
-: Well, oftentimes there are exclusion zones
that are entered and the judge
who's ordering that exclusion zone doesn't know
the exact address that the exclusion zone covers because-
-: Right, but we do know in this case, we know she,
the reason she's living with them
is she doesn't have a home.
Joanna: Right at the time of the offenses.
-: But, but there's this sort of a history
of kind of homelessness isn't there here. I mean.
-: There was.
-: It just makes it harder.
It makes it a more difficult case,
cause it's not clear what the GPS is doing.
-: Right. Well, I would argue
that the defendant would've been put on notice
leading up to, or at least if not leading up to,
by the time probation's working with him
to put the GPS on him, upon his release from incarceration,
he would know whether there was
a valid exclusion zone or not at that time.
-: So you're saying he has to wait
to find out if the exclusion zone is valid?
-: No, I think just in this case
that the evidence before the judge,
everyone was operating on the presumption,
that the address would be obtained,
that the Commonwealth just didn't have it at that time.
And I mean the def,
I realize that it's the Commonwealth's burden
to prove reasonableness, but I do think, you know,
it's something to consider that the it defendant,
instead of saying, look,
she has no address was just saying
when the Commonwealth notified the court, that they,
they couldn't represent that they had the address
at that moment, that the defendant kind of acquiesced in,
you know, if there is an issue,
I'll bring it in front of the court.
But another part of the Commonwealth's argument
is that the GPS, in this case,
wasn't reasonable solely because of the stay away order
and the exclusion zone that it enforced
that it was also reasonable
because the victim's wellbeing or state of mind
is a significant consideration.
And as the Commonwealth argued,
she's entitled to some sense of security,
at least for some period of time after she's been raped.
And that's what the ADA argued to Judge Locke
during the hearing.
The court has already, in case after case,
promoted the goals of punishment, protection of the public
and even retribution in sentencing and-
-: That's, that's sentencing, not probation though, right?
-: Probation's protection of the public.
That's a primary goal of probation.
And in fact, Corey, this court in the Corey case
that I cited talked about the act that.
-: What about the help? What about the other two?
We didn't, retribution is that part of probation?
-: I think the fact that, that in Corey,
this court talked about section 47.
-: We're in the Feliz case,
do we say part of the reasonableness
is a little old fashioned retribution? Is that in Feliz?
-: Well Feliz point, the Feliz case
is an opposite to this issue, in Feliz-
-: I thought we were here for Feliz issue.
Johanna: Well, that's what the defense
made the issue about but this case-
-: This is whether or not
you can put a GPS on someone for probationary purposes.
Johanna: Right? And in Feliz-
-: I thought that's what we said in Feliz but go on.
-: Right, but that was pertaining to
a different set of facts and a different crime.
And in Feliz,
the Commonwealth was arguing solely that GPS
would have a deterrent effect and that GPS
would help gather information or evidence
as to whether or not it was the defendant
in that case, Feliz, who committed a crime that arises.
Here, the Commonwealth is arguing that
just the victim's wellbeing, the protection of the public,
I mean, you harm a victim, you're harming society.
Anyone who deals with a victim has seen the suffering
that they've gone through.
And that affects not just the victim,
but everybody that victim comes into contact with.
-: All right, so counsel, I understand that.
Can you explain as if I were your grandmother,
what this exclusionary zone accomplishes
for the, for the victim?
Johanna: Sure.
-: Your, could you just explain to me as if
I'm a lay person, what,
what is the defendant not supposed to do?
Just tell me what he's not supposed to do.
-: Well, an example of what he is not supposed to do
is to come into-
-: But what he's not supposed to do
pursuant to this GPS condition,
what is it restraining him from doing?
-: Right. If he enters the exclusions zone that's grounds-
-: Okay, where's the exclusion zone?
Johanna: Surrounding the victim's residence.
-: And we don't know where she lives in the record.
-: We do. I, well, I'm asking that your honor,
consider the probation documentation that shows it
when he was released from incarceration
and the GPS was put on.
-: And assuming we had a valid address
and we have an exclusion zone.
Do you differentiate any, anything in the,
among the kinds of crimes involving rape
or involving any other kind of
assault and battery or harm to a person?
Are there differentiations among them in terms of
when a GPS should be used or should they just
always be used in all case to protect the victim?
-: No, I, I think the facts matter,
I think the type of crime matters.
-: What facts, what facts would you say matter here?
-: I think the fact, well, not that we need it,
but there is a risk of recidivism,
but I think also that the facts of a case
or the underlying offenses,
if they show a dangerousness or
a significant danger posed by the defendant,
the risk of re offense becomes less significant because
even if they re offend once-
-: Well so what in the record shows a risk of re offense
or a risk of, or a danger to the victim in the future.
Johanna: Well, so-
-: If you're not saying,
cause you're not saying all people charged with rape
require a GPS to protect all victims.
-: I don't think we have to say that in this case.
And I'm that's,
the Commonwealth would be concerned
about making blanket rules.
-: But, but you, you do agree that,
that there has to be something about the crime
and something about the defendant that justifies the GPS.
-: Right? Yes.
It has to be an individualized determination.
-: So in this case, other than the fact that this
was a rape inside his home
with somebody he knew, when she was unconscious.
What about that fact pattern says
we better put a GPS on this one?
Johanna: What about that fact pattern?
-: Yeah.
Johanna: The fact that, well,
it was penetration and that creates
significant psychological harm to person.
-: Well, I'm, I'm going to concede she's
significantly traumatized by this situation.
I wanna know how putting a GPS on this defendant
precludes further traumatization of her.
-: Sure. So where he raped her when she was unconscious,
the fact that the exclusion zone would be placed,
her residential address allows her
hopefully to go to sleep at night
-: But you don't know her residential address in the record.
Johanna: We do.
-: But not in this record.
You, you have a motion in front of us, right?
-: Sorry. I'm just trying to answer your question.
I thought you asked me what the exclusion zone would do for-
-: I will, I wanna know what it is
if you don't have an address?
-: It allows her to go to sleep at night,
she's been raped while she was
unconscious asleep drunk, and helpless.
-: We agree. We agree with you.
The crime's heinous and there's trauma to the victim.
We're trying to figure out practicalities here,
particularly, it sounds like this is not
an uncommon situation where you don't know
where someone lives when you're doing this.
I, or maybe you do. I, I, I don't know.
I'm just, that's the sort of, the difficulty here,
issue here is timing.
We have someone who has a history of homelessness,
but the judge may have been under the, you know,
the correct assumption that she had a residence at the time,
but we have no evidence of it until after the hearing
and then the burden of proofs on the Commonwealth,
but the burden was actually put on the defendant.
So it's kind of a-
Johanna: Well, I-
-: Murky, right?
So we're trying to figure out how to avoid this
going forward rather than, you know,
talking about the trauma,
which we totally agree with and the heinousness
of the crime, which we totally agree with.
-: Well, I think in the trial courts,
oftentimes things are moving quickly and maybe
the trial court judge is considering, you know,
a faster resolution of this issue,
a faster decision on my part might aid the defendant.
So I think a trial judge is juggling and kind of working
with what they have in the moment.
I mean, the hearing arguably
could have been continued until
the Commonwealth ascertained the victim's address.
And then the judge would've had it right in front of him
and there, this wouldn't even be an issue.
The defendant wasn't even released from incarceration yet
he wasn't supposed to be released until July 9th.
So they had three weeks.
Kafker: Right.
-: But-
-: The, the issue in, in Feliz,
even though you don't think this is a Feliz case
is the search has to be reasonable.
That means it has to further a governmental interest
versus the privacy concerns-
Johanna: Hmm.
-: That we articulated.
And that's what Grady says, that putting up GPS on someone
in probation is, is, is a search.
Johanna: Mm hmm.
-: One of the factors we are discussing is the recidivism
and whether or not he was a level two,
is that before us or we discard that?
-: I think it's something for you to consider.
I don't think, I think there are
two individual categories or grounds
that this court can rely on.
The fact that the victim's wellbeing is important and that,
you know, a recidivist always starts out
with one offense, without any history of prior offenses.
And if you were to say, and you know,
there's no evidence of recidivism
because he is never violated probation
or he is never violated condition of release.
Well, if he re offends,
you've created another victim out of society,
and there's more evidence that he is recidivating.
So I don't think a history-
-: So is the default is any first time offenders
are recidivists because
we don't wanna take the chance and so-
Johanna: No.
-: And so GPS is allowed even though
it's unconstitutional otherwise. I don't think-
-: No, but I'm saying you can't make a blanket rule
on the opposite end of this.
-: No, but I know,
but there's constitutional rules putting a thumb
on the other side, as we see in, in Feliz and Grady.
So the, the burden is on the Commonwealth
to show that whatever the individualized assessment
of this particular defendant
justifies as reasonable, the GPS,
you seem to be suggesting that everybody
starts off with one offense. And so therefore what.
-: No, but I'm saying it's something to consider.
I think in Feliz, the recidivism was a factor and,
and an important factor because
it was possession of child pornography.
The person here committed a contact offense
already created a victim.
And it's a victim's wellbeing,
which wasn't considered in Feliz, I mean, you know,
there are victims in child pornography,
but here you have a victim who, you know, and is suffering.
And so the victim's wellbeing,
if you wanna protect the public,
you should be protecting the victim from
being re victimized every single night.
-: Has, has that ever been considered
in the governmental interest in the,
in the Feliz, Grady balancing the, the victim's wellbeing?
-: Oh, I'm glad you brought that up
because in Grady and Feliz
their arguments were about recidivism.
This is not, as I'm trying to point out.
It's a separate concern.
The victim's wellbeing in Feliz they weren't-
-: Right, the question I asked you is,
has this as a governmental interest to,
to overcome the privacy interest,
has this ever been articulated by any court anywhere?
-: Yes, I think so.
I think this court and Corey,
when they were talking about the act
that section 47 was a part of,
they were talking about the fact that the legislature-
Gaziano: Which case?
-: Sure.
It's it's cited in my brief.
I just wanna grab it's Commonwealth V. Corey.
-: I'll find it, if it's in your brief I'll, I'll get it.
Don't worry.
-: Thank you.
And so in Justice Ireland's dissent,
he's noting that section 47, which is what the,
this whole issue has stemmed from,
the fact that section 47's time,
the GPS requirement to the victim
shows that the legislature's concern
was protection of the victim.
And in Guzman, this court talked about how the legislature
may establish harsh punishments to discourage re offense.
And in Corey, this court, again, was talking about GPS,
promoting traditional aims of punishment
and goes into deterrent and retribution.
So Corey itself is bringing up the fact that retribution is
an important consideration, and that was a GPS case as well.
-: You don't really want us to,
you don't really want us to rely on retribution for a GPS.
Do you, you, you don't want us to-
Johanna: Not always, but I think it's a con-
-: Really?
Johanna: It's a consideration.
Wendlant: Really?
-: I think the victim wellbeing is important.
-: This seems crazy, that just seems-
-: Old Testament.
-: Way out out there.
-: Yeah, I mean.
Johanna: But it's there, it's a valid-
-: We gotta decide whether the GPS is serving a purpose.
You got, you got a lot of reasons why
it may very well be serving a purpose here,
but two of them have to do with the fact that
she's got an address or a workplace.
And that he's a level two.
Those seem to be two important factors to the trial judge
in putting the GPS on. Right.
Johanna: Mm hmm.
-: And, and by the way, if they seem legitimate,
but Mr. Crane argues that all we have are the factors.
We don't have the actual underlying data.
I don't know if we need it, but I don't know.
It just seems like we don't need to go to retribution.
And this is a classic Feliz case.
It's the next Feliz case. So.
-: Well, I think Corey, this court already talked about,
you can consider dangerousness or risk of re offense.
So I think a person's degree of dangerous,
when it's, so I think this court has already said
you don't need a risk of re offense in Corey
is my point when it's saying you consider dangerous-
-: And Corey was a post Grady case?
-: No, I don't think so.
Kafker: Preliminary case.
Johanna: It's earlier.
Kafker: Corey is, Corey is a, nineteen-
-: Corey is earlier.
-: 2009 right?
Johanna: Yep.
Kafker: 2009 case.
-: But it's discussion of the goals and objectives of
sentencing and probation still are valid
and something to be considered.
And I think, you know, less, the risk of re offense drops.
The significance of it I would say drops
when the danger posed by any risk of re offense is higher.
So I think it's like this court has said,
it's a balancing and risk of re offense
isn't the end all be all.
In Feliz it was more significant
than it might be in other cases.
And the Commonwealth's position is in this case
where there's a victim and GPS would enforce
the exclusion zone while she's sleeping
in the prime target for the defendant,
she would, her wellbeing would, and sense of security
and sense of safety would be restored.
Hopefully it would at least help
in restoration of that
for her to know that he's being watched,
he knows he's being watched.
And there's an alert that's gonna go off
if he comes in within half a mile of her home.
-: Which we don't know on the record.
Georges Jr.: Right.
-: Okay. Thank you, counsel.
Johanna: Thank you.