Appeals Court (December 13, 2007)

When a person is declared sexually dangerous (SDP), a modification to impose stricter conditions of probation in the underlying criminal sentence is allowed as long as it does not constitute punishment. Moreover, it is within the judge's discretion to deny a motion to strike those conditions even where a person is subsequently found not SDP after a c. 123A, §9 trial.

The defendant plead guilty to one count of rape of a child and was sentenced to a term of imprisonment with probation for three years. Prior to the expiration of the defendant's sentence, the Commonwealth filed a petition under c. 123A to commit the defendant as an SDP, and the defendant was adjudicated as such. Subsequently, the defendant filed a §9 petition, asserting that he was no longer an SDP and could be released. Prior to the §9 trial, and partly for tactical reasons in anticipation of the trial, the defendant filed a motion seeking to modify the terms of the original probation order to include outpatient sex offender treatment. After a hearing, a new judge allowed the motion and also sua sponte added further restrictive probation conditions. Subsequently, the §9 trial took place and a jury concluded that the defendant was no longer SDP. The defendant then filed a motion seeking to modify the probation order and strike the additional conditions due to a change in circumstances. After another hearing, the judge denied the motion. The defendant appealed the order denying the request to change the conditions, and also appealed the original judge's order to sua sponte add conditions. The appeals court rejected both of these arguments.

While the issue was not properly before the Court procedurally, the Court took the opportunity to address the merits and held that the original imposition of the additional probation conditions was proper since the more restrictive conditions were imposed after the defendant's designation as an SDP:
Such a designation, where it provides the judge with
information about the defendant not known to the judge
at the time of sentencing, but which is consistent with
the sentence and the tenor of the terms of the probation,
qualifies as a material change in circumstances permitting a modification in the conditions of probation, so long as that
change does not constitute punishment.

Additionally, the judge did not abuse his discretion in denying the defendant's motion to strike the probation conditions after the defendant's §9 trial which found the defendant no longer SDP. While a person may be found not SDP for purposes of civil confinement, he may still pose a sexually dangerous risk to others without some supervision, restriction, or attempted rehabilitation outside of confinement. "Given the 'particularly high' recidivism rates among child molesters . . . a specific residency restriction to keep such a person away from children [the additional probation condition] is a permissible probation term."