-: SJC-13540, Commonwealth versus Carlos M. Rodriguez.
-: Okay, Attorney Cheifetz.
-: Good morning, your honors, may I please the court.
Abby Shy, that's here
to represent the appellant, Carlos Rodriguez.
So I'll get right to the heart of the problem
with the Superior Court decision in this case.
Looking at the circumstances of Mr. Rodriguez,
he's now 70 years old.
He's confined to a nursing home,
which is a locked facility,
with a shunt draining fluid from his brain.
He has a history of severe balance problems in vertigo,
and there's nothing in the record
which suggests that he has a car or license
or even access to Marlborough and Framingham.
Judge: Can I ask you a question?
-: Which is 70 miles away.
-: As far as the medical testimony goes,
at least for the term of probation,
is the record clear
that he's going to stay and not get better?
I mean, I think he has a dementia or something?
See, he has something seemingly irreversible,
but is the record clear that he's not going to be able
to travel to those two towns during the period of probation?
-: Okay, well, the record does establish
the history of medical problems that he has.
And his hydrocephalus,
he does not have any real cognitive issues
except he had a record of potential Parkinson's symptoms.
So it's possible there's some cognitive issues there.
There's nothing in the record about him
having a car or a license,
so that would be outside the record.
And he does reside at MissionCare at Holyoke
based on his status as a Type 2 diabetic.
So he's not allowed to leave of his own accord,
he can't just walk out of the facility and drive somewhere.
And especially in this case-
-: Just trying to understand what that means.
Is he in one of these units where it's locked
or does it just mean he can't leave by himself
'cause he's not capable of leaving by himself?
-: Right, well, I think it's twofold.
He is not in any kind of penal nursing home,
but because for the safety of the residents,
the floors are locked, they're keypad-coded,
they can't get onto an elevator
or get down to the stairwell
unless they put in a keypad code in,
and they can't walk out the front door
without being buzzed by security.
And that is for the security of all the residents,
and most of the residents aren't not justice-involved.
It's because they suffer from severe cognitive
and medical issues.
-: Yeah, that's where I'm confused,
but his diabetes is why he's in there?
-: Yeah, that was why,
he has a lot of health issues,
and being a Type 2 diabetic
was how he was accepted to MissionCare.
He also has high blood pressure-
-: If he can operate a keypad,
so if he keys himself out, he can leave?
-: Potentially, if he were to acquire the code
and somehow get through the front door of security
and get buzzed out, he could potentially-
-: Well, I guess the bottom line is,
is he allowed to leave on his own or not?
-: I think if he had family member
that wanted to take him out, he'd be allowed to go.
And I know that the nursing home does provide residents
with opportunities to go on field trips.
But all the residents are constantly under supervision.
They just can't go out alone.
They have to be with someone.
-: Let me ask you a broader question.
Is there a legitimate government interest
in enforcing the stay-away from a victim of a child rape
who is traumatized from age three to seven?
-: So I would say,
there is a legitimate government interest in enforcing,
there's a stay-away from the victim and the victim's family.
Judge: Right.
-: But that is separate from stay-away from an area,
from a geographic area.
So in this case, there's no legitimate interest
in enforcing a stay-away
from the towns of Framingham and Marlborough.
-: Let's break that down.
Attorney: Okay, sure. -: All right.
If we look at Feliz and Roderick,
can we talk about governmental interests
that have to be in play
in order for there to be a reasonable search, right?
Attorney: Right.
-: Do you concede that a victim's state of mind
or protecting a victim
from having to relive this horror as she testified to,
or spoke to at sentencing
clearly affected the motion judge here?
Is that a legitimate government interest?
-: I would say
that these were legitimate factors at sentencing,
but not a legitimate factor at the actual motion hearing,
because it was incumbent upon the Commonwealth
to actually present evidence.
Judge: Why not?
-: Why would-
-: So we have someone who's raped by her grandfather
from age three to seven,
who says, "I can't bear to stand
"to see the guy at sentencing."
Is there a good legitimate government interest in the state
keeping that offender away from that victim?
-: I would say, well, there is a legitimate interest
in that there is a valid stay-away.
So that would keep the defendant away from the victim.
If he were to encounter her,
he would have to cross the street, but in terms-
-: How else do you force to stay-away
other than the GPS?
-: Okay, so the GPS in this case, as it is,
because there are no legitimate exclusion zones
that were ordered at sentencing,
the only way this GPS will function,
and in Massachusetts, it's an alert-based system.
So if he were to say, violate the no contact order
and get too close to the victim,
someone would have to report it to the authorities,
and then the authorities would come looking for him,
and then they could go back and look at his GPS
and say, "Oh, were you in front of this store
"where the victim was?"
So in this case,
a GPS will only serve potential post hoc investigative use
by the authorities-
Judge: What about deterrence?
-: It will serve a certain deterrent effect-
-: If he can't go to Framingham
or what was the other town, I'm sorry?
-: In Marlborough.
-: Yes.
-: Doesn't that deter him from going to the places
where she can be found?
-: Well, certainly, the way the exclusion zone is now,
he's not allowed to go there,
and the device will alert because it's been configured.
But the issue of exclusion zones,
it's a separate issue
because there was no legitimate authority for the judge
to have even established these exclusion zones
after sentencing.
Because in order to do that under Goodwin,
there needs to be some kind of a material change
in the defendant's circumstances,
meaning a violation of probation-
-: In Goodwin, at sentencing,
was there a stay-away or no contact?
-: I don't specifically recall, but I would think-
-: I think the answer is no. -: There would be.
-: I think the answer is no in Goodwin, right?
-: I honestly, I don't remember
if there was a stay-away in Goodwin.
-: Well, in Goodwin at sentencing,
there was no stay-away,
but then conditions included a stay-away after sentencing.
Judge: Post-sentencing, yeah.
-: Right, and then putting on a GPS and exclusion zone-
-: So then there was a third modification.
Attorney: Okay.
-: To supplement the stay away with an exclusion order.
Judge: Which implicates double jeopardy.
-: Yes, and it definitely implicates it here because-
-: Well, here though, at sentencing,
the judge said there's a stay-away,
no contact from the victim.
And then post sentencing,
the judge set the terms of that stay-away, no contact.
-: Well, at sentencing, there was a stay-away from the victim
and the victim's family.
So that's a stay away from a person who is mobile,
and that's different
than a stay-away from a geographic area.
So what happened at the hearing, after the hearing even,
when the judge established the exclusion zones,
the geographic exclusion zones,
that was a modification of the sentence
that he was not authorized to do
because there was no violation of probation,
and that was the double jeopardy violation.
They were unlawful.
-: How do we know if something's a,
what's the legal test of something that violates Goodwin
and is a modification without a violation
as opposed to something that's a clarification
of the scope of the stay-away order?
Attorney: Right. -: Right, we now know
the victim tends to be in Marlborough and Framingham.
And so to affect the stay-away order,
which is already part of the sentence,
why would that be problematic under Goodwin?
-: Under Goodwin, it's problematic because a judge doesn't,
I would argue in this case,
putting in these exclusion zones,
which are so punitive and really a severe increase
in the change of the original conditions,
that it's not a clarification, it's not a modification.
It's not telling, you know, that the judge-
-: Is it because it's punitive, is that what is it,
I'm trying to figure out the legal test-
Attorney: Yeah, I think it's twofold-
-: As opposed to just in this particular case.
-: So I think it's twofold,
I think that there can't be any kind of a modification
that would increase the scope of the original terms
unless there has been a violation of probation.
-: Wait, let me ask you, if the judge in this case,
there's a stay-away, no contact from the victim,
we know that, it's an original sentence,
and the person does this sentence,
they come back under the Feliz motion.
And suppose the judge asked the Commonwealth,
"Well, where does the victim live?"
And the Commonwealth said they live at 33 Main Street
in Framingham.
And the judge said,
"Okay, pursuant to my stay-away, no contact,
"you were excluded from 33 Main Street."
Would that be a double jeopardy violation?
-: Yeah, I would say, it would be a double jeopardy violation
because it is a material change
from the original conditions.
And it's adding to the sentence
that something that was not there originally.
In this case, it's easier because including two huge towns.
And these aren't even towns where the victim lives,
it's where she visits her family.
Those are extremely punitive
that the scope is so huge.
It doesn't make sense and it doesn't comport
with the precedent in Goodwin.
-: Excuse me, can you please tell us what's in the record
regarding the burden on the defendant here
of the exclusion from those towns?
Your briefs asserts that it's the only place he's ever lived
and I think that he has trouble
accessing a bank account book?
Could you tell us
what exactly is in the record about that?
-: There was no evidence in the record
about details about the bank account.
This is just because I know Mr. Rodriguez,
and that this is the only town he's lived in,
and he spent his life in Massachusetts in that community.
But you know what is in the record is that the victim,
and I think going even back to the trial records,
the victim was from Framingham,
and her grandfather lived there and took care of her.
And that was the community he resided in.
So that would probably be the only thing in the record
regarding those factors, thank you.
-: Do you wanna address the sort of more general problems?
From what I gather,
probation is keeping these on without a hearing,
and it was put on your client without a hearing
and remained on your client
for a certain number of months without a hearing.
Do you wanna address those and whether that's permissible
and what the appropriate remedies are in that context?
-: Sure.
And these were issues that were addressed
in the Amicus Briefs. Judge: Right.
-: And I'm definitely supportive of what was put forward.
But as it stands right now, it is-
-: And not only you're impacted by it, right?
Your client, it remained on him
without a hearing for how long?
-: It was approximately 33 days
from the time he got released November 18th, 2022
to the time of the hearing,
which was December 21st of 2022.
So he went about five weeks
before the hearing could be scheduled.
And at the hearing,
the judge did indicate it would be a quick decision,
but it actually, I think, was an additional five weeks.
So we had about 72 days where he had
this presumptively illegal unconstitutional device,
which is searching him on
until there was a final judicial decision
at the end of January.
-: Did we address this problem in either Feliz
or the other case about sort of the time lag problem?
-: No, actually that's what wasn't addressed,
and that's why courts don't have the guidance
that they require,
things are happening in differently
in different courts right now.
And our argument is that this burden
should not be on a defendant.
Mr. Rodriguez is really lucky
because I happened to represent him in his direct appeal
and his medical parole petition
and his parole hearings.
And I knew, years in advance,
that when the time came for release,
we would have to deal with his GPS,
but most of the defendants that CPCS is concerned with,
and the reality is that these are people
who are unrepresented.
They don't understand Feliz,
they don't know about Feliz,
they would have to go out
and establish their indigency in court,
get a signed counsel,
and then have counsel file a motion to vacate.
So I would say that Mr. Rodriguez is the exception,
the defendants who know that they need to go out right now
and shoulder this burden are the exception.
But the vast majority of defendants don't know that,
and it would be much easier and more just
to just have the Commonwealth bring these people into court-
-: Because it's probation?
-: So it depends on if they're still incarcerated,
it's easy for the Commonwealth to just schedule a hearing,
and that's where the CPCS and the Commonwealth agree.
But once the probationer is out there,
it should be the burden of the Commonwealth
to move to impose GPS,
and then to bring the person into court,
they get a signed counsel,
and the judge conducts the balancing of interest-
-: Because we assume this is hopefully a finite problem
because it really deals with the population of people.
Attorney: That is. -: Right?
Because anybody who's incarcerated
before they're hooked up by probation,
they should have notice and a right to be heard.
And of course, going forward after Feliz,
it's a sentencing issue.
-: That's correct.
And I think there are about 600 inmates right now
that were sentenced before Feliz,
and there are under 350 probationers
that were sentenced before Feliz
that would require that hearing.
So it is finite, and definitely the Commonwealth
has the resources and information to be able to do this,
versus these defendants who just don't know,
and it's really quite unfair
that they would have to shoulder the burden
of a presumptively unconstitutional search.
If there are no more questions, I would rest on my brief.
-: Okay, thank you very much. -: Thank you.
-: Okay, Attorney Langham.
-: Good morning, Madam Chief Justice.
Good morning, may it please the court.
Jessica Langham, assistant District attorney for Middlesex
appearing on behalf of the Commonwealth.
Justice Pierce correctly ruled
that the Commonwealth's interest
in imposing GPS monitoring on this particular defendant
outweighed the intrusion on the defendant's privacy
for three reasons.
First, the Commonwealth has an interest
in protecting this victim and in protecting the public
by strengthening enforcement
of the stay-away no contact order,
which Justice Pierce had ordered its sentencing in 2018.
Second, GPS monitoring supports the Commonwealth's interest
in enforcing the exclusion zone,
which Justice Pierce added in his order
denying the defendant's release motion.
And third,
GPS monitoring supports the Commonwealth's interest
in deterring and investigating future sex offenses,
where this defendant has been classified
as a Level 2 sex offender by SORB,
which means that he poses some degree
or some risk of re-offending
and a moderate degree of danger to the public.
-: Feliz calls for the individualized assessment, correct?
Langham: Yes, your Honor.
-: And I get your arguments about the governmental interest,
especially with respect to the victim's peace of mind.
Langham: Yes, your Honor.
-: But what I don't get is, as we individualize this,
how this makes sense
for someone who is essentially bound to a medical facility-
-: How having a GPS-
-: Because of the person's medical condition
and how basically we're going to be putting a GPS monitor
on someone who's confined to a medical facility
because of his health issues.
-: Yes, your Honor, and I think-
-: How does that make any sense?
-: Well, as the bench has just elicited,
I mean, health is a fluctuating factor.
It's not a static factor, it's a dynamic factor.
And while this individual is there,
has substantial medical needs,
was originally placed there because of his diabetes,
that could change.
And as counsel just represented to the court,
he's not prohibited from leaving there,
even if it might be challenging for him to leave by himself.
-: What is your understanding
of the restrictions in place for him?
'Cause I can't, 'cause you know,
he's not in one of these memory units
where you're not allowed out,
but he's, I don't understand exactly,
what's the record show about his ability to leave.
If he calls up a buddy to ask him out, he can leave,
is that right?
-: Yes, he can, your Honor.
The evidence, and just to point out,
there was no testimonial evidence.
This Justice Pierce held a non evidentiary hearing
at which the court considered documentations and affidavit
submitted by defense counsel
and the representations of the Commonwealth
with respect to the SORB classification.
So there's,
and what Justice Pierce clarified is exactly a question,
your honor, Justice Kafker just asked, which is,
is there any legal prohibition on him leaving?
No, there's not.
So he could leave,
there is an affidavit from an individual at MissionCare
that was part of, I believe,
defense counsel's supplemental affidavit,
that's in Appendix 2,
indicating as she just represented,
as my sister represented to you,
that he on a floor that requires a keypad
to get into the elevator.
And when Justice Pierce asked,
"Well, if he got the keypad code number
"and potentially got out
"and he could make it past the front desk,"
and then my sister represented
that presumably someone in the institution
might call the police,
but there's no legal requirement keeping him there.
-: He can have a visitor come
who doesn't understand any of this
and take him out driving, right?
That's not prohibited.
I mean, obviously the visitor
has to check into this facility and everything else,
but somebody can come visit him
and take him for a drive, right?
Langham: Yes, your Honor.
-: How can he be arrested if he's not detained?
-: I beg your pardon, your Honor.
-: You said that the,
someone at the front desk would call the police,
-: Someone at the front desk could call the police.
-: For what?
-: This is what, when Justice Pierce
was asking my sister at the Feliz hearing
whether or not there was any legal prohibition
on him leaving to alert probation if he's leaving.
So he's not required under the terms of his probation
to stay at this facility.
But if he's moving that,
I think that that would set off an alert.
And so probation would be informed,
so that that probation would be informed, that's what,
not that he would be arrested for leaving the facility.
-: Are there exclusion zones too broad?
-: Thank you, your Honor.
At the time that Justice Pierce entered this order,
certainly section 47 was the law,
excuse me, sentenced the defendant section,
it was section 47.
And Justice Pierce could be confident
that this defendant would be on GPS monitoring,
and as the court's familiar with the serious crime
that this defendant against a child.
And that was part of sentence that the judge crafted,
not including the exclusion zones.
And so then when the law changes,
and then the defendant is a SORB Level 2,
Justice Pierce added the exclusion zones
to give effect to what his intent was at the time
that he crafted this sentence.
-: Can you respond to the contention in the reply brief
that Justice Pierce essentially treated this
as a re-sentencing hearing following Feliz?
-: Yes, your Honor,
and I would argue that it's not a re-sentencing,
there was no violation of probation,
but there was a material change in circumstances,
and that's the defendant's designation by SORB,
who had preliminarily designated him as a Level 3 offender,
and then after a hearing in September of 2022,
showed that he was a Level 2 offender.
So Level 2 means that as the court is aware,
information about the defendant, his crimes,
his photograph, in fact, two photographs of him,
and his address are available to the public,
because that's the level of danger that he possesses.
-: So if you didn't have the SORB Level 2,
if this is a quite different case
and you didn't have the SORB Level 2 classification,
would you agree it was improper
because there was no material change in circumstances
to impose an exclusion zone
where previously there was no exclusion zone?
-: Well, your Honor, the SORB Level 2 wasn't the only,
it was the only change,
and it was the issuance of Feliz is also a change.
So the law has changed, and Justice Pierce-
-: Well, that decision was more protective of defendants
and said that defendants
couldn't just be willy-nilly given GPS (chuckling)
and needed to have an individualized,
an individualized assessment, right?
So it's a little strange to say that that decision
is a change in circumstances
that warrants imposing not only GPS
but also exclusion zones on top of GPS.
-: Well, right, your Honor.
But material change in circumstances is the defendant's,
so taking out the SORB portion, and I would point to,
and your honor, Chief Justice,
I wanna get back to your question,
but just the case of Morales,
which is cited in the Commonwealth Brief,
and that's a case that sort of a addresses
what your question was, your Honor,
is that in that case,
and that was Justice Katzman wrote that opinion
where the defendant was SDP,
and that was held to be a material change in circumstances.
And when the original sentencing judge
had imposed the sentence, obviously that was unknown.
So that was held to be a proper,
a new condition was imposed
that this individual not reside where there were minors,
and that was held to be proper in light of this material.
-: So is your position that there,
for all of these Feliz defendants,
we'll call them the Feliz defendants,
the people affected by Feliz,
for all of those defendants,
there is a material change in circumstances.
So judges, when they're re resentencing these defendants
can give new explosion zones to all of them.
If the judge thinks that, you know,
to vindicate certain commonwealth interests
that are legitimate, that an exclusion zone would be good.
-: Well, your Honor, it cannot be,
and this is what I tried to put out in the brief.
In reading Goodwin in light of Feliz and Roderick,
it cannot be that a superior court judge
who presided over the trial imposed a sentence,
heard the victim impact sentences,
the person who's most familiar with this case
crafted a sentence,
and then is trying to retain the integrity of the sentence
that that judge imposed at the time
that the judge can't make appropriate adjustments
in order to effectuate that sentence.
-: But there's a 60-day limit.
-: Well, that's, your Honor, with respect to a Rule 29.
And that's, we're not talking,
and that's not a rule.
-: What basis for your principle
that a judge who, a while ago,
heard the trial and did the sentencing,
when he's having a hearing
to do an individualized assessment
about whether GPS was even appropriate for this guy
can impose additional conditions?
-: Well, to the extent the court concludes
that there's no material change,
I would look to the inherent power of the Superior Court.
This is a different circumstance.
So we're imposing GPS on an individual,
even if there were no exclusion zones,
here, this is a defendant
who is in a different position
that the defendant's in Feliz and Roderick.
And in Feliz you had no geographic victim.
You had an individual
who possessed and distributed child pornography,
and he was a Level 1 sex offender.
And Roderick, you have an individual who raped someone,
the victim had been living in a tent in Connecticut,
or no one was quite sure where she was.
He was a Level 2 sex offender.
But the Commonwealth couldn't show
at the time of the Feliz hearing
where this individual was.
Here, we have an individual who's a Level 2 sex offender,
who is the probation officer,
and as Justice Pierce found at the hearing,
is it often in Framingham and Marlboro.
And so in order to effectuate that,
that's why Justice Pierce added the exclusionary zones,
which to your point, your Honor, are broad.
But I would submit to the court for the other reasons
that even if somehow the addition of the exclusion zones
was too broad, and though under Goodwin,
the modifications and in contrast to what my sister said,
the court can make modifications
so long as they are not quote so punitive
as to significantly increase the severity
of the original probationary term.
Where the defendant was already ordered to stay away
and have no contact with the victim or her family.
And that's where the family lives.
And the defendant knows that
because he's part of the family,
it really cannot be said that these two towns,
though it is a broad geographic area, was not so punitive
as to significantly increase the severity
of the original conditions.
But even without, but just to jump around a little,
even without the exclusionary zones,
I would submit that in contrast
to the cases of Feliz and Roderick,
that it might have been that Justice Pierce believed
that in light of Roderick,
that exclusionary zone was needed
in order to justify the GPS.
But I would submit that it wasn't here.
-: Well, if the exclusionary zone is needed
to justify the GPS under Feliz,
doesn't that suggest that the exclusionary zone
has significant meaning?
-: It does, your Honor,
but looking at this in the totality of the circumstances,
so that's just with respect to the Commonwealth's interest
in strengthening enforcement of the stay-away, no contact,
the exclusion zone just that one piece.
And then as the court is recognized in Roderick
with respect to deterrence in the investigation,
SORB Level 2, where this is an individual
who the defendant presented a lot of information
at the hearing,
and Justice Pierce included it all
in the order denying the Feliz motion
of this low risk of recidivism.
But that's not what SORB said.
And SORB held a hearing
and there was clear and convincing evidence
that he's a Level 2.
So that fills in that piece.
So, but it's only with respect to the one piece
when this court is considering all of the different factors
under the totality test.
-: Can you turn to the question about what should happen
for all the Feliz defendants,
and could you particularly address the question,
I read Feliz as saying the government cannot affix a GPS
without doing an individualized determination
with respect to that defendant.
Langham: Yes, sure.
-: So why doesn't that just set the rule?
It we don't need some fancy sort of set
of like who files a motion?
You know, the parties are fighting over like,
"We should have to file a motion,
"we should have to file motion."
Isn't it just clear from Feliz,
like you have to have a hearing before you can add the GPS?
-: Yes, your Honor.
And so it's presumptively unconstitutional.
However, for those less than, I think, as Amicus said,
"There were 356 individuals
"who are currently on a section 47 GPS,
"and they don't know how many of them
"have already had the Feliz hearing."
I spoke with legal counsel for the probation service,
they couldn't come up with that number.
But removal of the GPS
without having this individualized determination
would create a public safety issue.
And these to respectfully remind the court,
these are not individual,
these are individuals who have been convicted of a crime.
And so-
-: But isn't that problem the Commonwealth's,
I get it, it is a public safety problem,
but doesn't that mean you have to go out
and do these hearings immediately?
-: Well, and yes, your Honor.
-: And the probation can't just sort of let this go on
without those hearings, right?
I mean, I get it's a practical problem and a real one.
But isn't, your solution and your brief
is they get to it when they get to it,
but isn't that inconsistent
with their constitutional rights? (chuckling)
-: Well, your Honor, it would seem that for these,
this discreet number of individuals,
perhaps probation could come up
with a list of all of these individuals we're currently on-
-: I mean, do we have to order
emergency hearings on these things or,
I just dunno how it's consistent with what we said.
I mean, Feliz is issued when?
-: In 2019, your Honor.
-: And we're in 2024. Langham: Yes.
-: And there's still people without these hearings.
-: There are unknown number of people who were-
-: That's not good, right?
-: Agreed, and so for those defendants
who are still incarcerated,
I mean, it's the defendant who knows his date,
certainly they should have a hearing before.
-: As we said in Roderick,
really the analog here is a search warrant, right?
'Cause it's a Feliz hearing is really a search warrant.
Langham: Yes, your Honor.
-: And you don't get to search the house
and then get a warrant afterwards.
-: That's right, so it's justifying the warrantless search.
Judge: Right.
-: So certainly,
the hearings need to take place as quickly as possible.
Which of the broader commonwealth,
which entity is in the best position to do that,
the probation service knows which individuals
are operating under a GPS under section 47.
-: So again, what does the last two paragraphs
of our decision say about this?
Given we have a constitutional violation, in some cases,
that's four years old or five years old.
-: And that's correct, your Honor, I don't know.
So not only do we not know the number of people
who have a section 47 GPS post Feliz,
we also don't know how long they've had it.
But this information can be ascertained,
can be determined by the probation department.
And once the information is determined,
the Commonwealth certainly wants to have these hearings.
In fact, it might be that the Commonwealth
does not have an interest in retaining the GPS
with respect to everyone.
But for those individuals that the Commonwealth does,
certainly a hearing needs to be scheduled expeditiously.
And it could be, as it was in this case,
a non-evidentiary hearing.
And if there are no further questions,
I would rest on my brief.