Appeals Court (August 14, 2006)

The Commonwealth may file an SDP petition where a defendant was originally released to the community upon conviction of the sex offense, but was later incarcerated on the offense.

A defendant has no right to have counsel present during interviews with qualified examiners, or to have the interviews audio taped.

In reviewing claims of ineffective assistance of counsel, the same standards that apply in criminal cases will apply in sexually dangerous persons (SDP) proceedings.

In 1997, the defendant pleaded guilty to four indictments and was sentenced to serve time on two of them, followed by five years probation for the remaining two offenses. Upon the defendant's release from jail, he repeatedly violated his probation and was ultimately sentenced in 2002 to serve one year on his prior indictment for assault with intent to rape - for which he had previously received a probationary term. While the defendant was incarcerated for violating his probation, the Commonwealth filed a petition seeking his civil commitment as a sexually dangerous person (SDP). The defendant was found to be SDP and appealed.

Underlying Criminal Offense:

The defendant argued that since he was not originally incarcerated on his conviction for assault with intent to rape, and because he was released into the community after serving a portion of the sentence on the other indictments, that he was released prior to the Commonwealth's filing of the SDP petition and therefore any subsequent attempt to commit him is untimely. The court found no merit in the defendant's argument stating that c. 123A, §12(a), as then in effect, did not require the defendant be incarcerated on the sexual offense immediately after the trial. "[I]t is sufficient that he has been convicted of the offense and that the notice be given timely prior to his release." The statutory language itself envisions the possibility that a defendant could be released into the community and re-incarcerated.

The court rejected the suggestion that its decision in Commonwealth v. Shedlock, 58 Mass. App. Ct. 445 (2003) could be read to require, under the then extant statute, continuous incarceration from the time of conviction to the time the petition is filed as long as a defendant is incarcerated on a sexual offense at the time the petition is filed.

Qualified Examiner Interview:

The court explicitly stated that the defendant "has no constitutional right to have counsel attend the interviews, or to have the interviews recorded by audiotape."

Ineffective Assistance of Counsel:

In reviewing claims of ineffective assistance of counsel, the court stated that it will apply the standards outlined in Commonwealth v. Saferian, 366 Mass. 89 (1974) that govern criminal representation.