Opinion
10-P-2161
11-10-2011
COMMONWEALTH v. PHILLIP BUNTING.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The respondent, Phillip Bunting, was found by a jury to be a sexually dangerous person (SDP) and civilly committed to the Massachusetts Treatment Center for a period of one day to life. Prior to trial, the respondent filed a motion to dismiss the Commonwealth's SDP petition based on the fact that a prior SDP petition was dismissed with prejudice. The motion judge denied the motion, and the respondent appeals from the judgment. For the following reasons we affirm.
Background. We discuss the facts as the motion judge could have found them. The respondent has committed multiple sexual offenses against various women and girls.
These offenses include, but are not limited to, the following. In 1983, the respondent was convicted of indecent assault and battery on a child under fourteen years of age and of open and gross lewdness. Then, in 1985, his probation record indicates he was committed for another indecent assault and battery on a child under the age of fourteen. In 1991, he was convicted of indecent assault and battery on a person fourteen or older.
In December, 2003, the respondent pleaded guilty to indecent assault and battery on a person over fourteen years of age, unarmed burglary with assault, and threatening to commit a crime. For these offenses, he was sentenced to two and one-half years in the house of correction. While serving this sentence he was charged on October 6, 2004, with assault and battery of a corrections officer.
On January 27, 2005, during the pendency of his most recent charge relating to the corrections officer, the respondent was scheduled to be released from his indecent assault and battery sentence. Accordingly, on January 26, 2005, the Commonwealth filed an SDP petition (first SDP petition) pursuant to G. L. c. 123A, § 12(b). The Commonwealth, however, failed to move for an SDP trial within the sixty-day statutory filing deadline. As a result, the respondent filed a motion to dismiss. Despite the Commonwealth's failure to file on time, the motion judge denied the motion to dismiss.
The judge found that the Commonwealth had faxed the petition to the clerk's office in a timely fashion, but the filing itself was one day late. He further found that 'the [d]efendant's rights have not been in any way curtailed.'
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After the respondent had been convicted and sentenced for assaulting the corrections officer, the Commonwealth moved to withdraw the first SDP petition because the respondent was again incarcerated. As a result, the motion judge dismissed the first SDP petition with prejudice.
As the respondent neared his release date on the latest assault and battery charge, the Commonwealth filed another SDP petition (second SDP petition). This petition was based on many of the same facts as the first SDP petition, but also included evidence of the respondent's disciplinary problems while imprisoned after the first SDP petition. The respondent moved to dismiss the second SDP petition on the grounds that the first petition had been dismissed with prejudice. The motion judge denied the respondent's motion, ruling that res judicata did not bar the Commonwealth from bringing a second SDP petition. The defendant was subsequently adjudged sexually dangerous, and now challenges the denial of his motion to dismiss the second SDP petition.
Discussion. '[T]he double jeopardy guarantee of the Fifth Amendment to the United States Constitution does not apply to G. L. c. 123A commitment proceedings . . . .' Commonwealth v. Chapman, 444 Mass. 15, 20 (2005). However, 'as a matter of fundamental fairness under the due process clause of the Fourteenth Amendment to the United States Constitution, a finding that an individual is no longer sexually dangerous must be as immune from subsequent or collateral attack as is a criminal judgment of acquittal.' Commonwealth v. Travis, 372 Mass. 238, 249 (1977).
To this end, '[c]ollateral estoppel is available to a defendant as a shield against a subsequent attempt by the government to litigate an issue necessarily decided in previous litigation between the defendant and the government . . . where there is (1) a common factual issue; (2) a prior determination of that issue in litigation between the same parties; and (3) a showing that the determination was in favor of the party seeking to raise the estoppel bar.' Chapman, supra at 21, quoting from Krochta v. Commonwealth, 429 Mass. 711, 715- 716 (1999). Thus, the question is whether a prior proceeding under G. L. c. 123A 'constitute[s] a final determination between the same parties on the common factual issue of . . . dangerousness.' Chapman, supra. Here, 'the protection afforded a determination made under G. L. c. 123A 'applies only to circumstances in which there has been a finding that an individual is not sexually dangerous" when the finding is made (emphasis added). Ibid., quoting from Travis, supra at 249 n.5.
It is clear from the record that the dismissal of the first SDP petition did not entail a finding that the respondent is not sexually dangerous. That dismissal was motivated either by the respondent's reincarceration or a desire not to defend an appeal from the judge's denial of the motion to dismiss.
Even if the dismissal of the first SDP petition did qualify as a determination of sexual dangerousness, it would not avail the respondent. In such a case 'we examine the facts set forth by the Commonwealth [in its subsequent SDP petition] to determine whether its petition seeks merely to relitigate [the respondent's] status . . . or whether it is sufficient to support the allegation of present sexual dangerousness . . . .' Chapman, supra at 22. The Commonwealth may file a second SDP petition so long as that petition seeks a 'present determination of sexual dangerousness predicated not only on [the respondent's] . . . sexual misconduct prior [to the earlier SDP petition], but also on conduct engaged in thereafter.' Id. at 24. See Gomes v. Gaughan, 471 F.2d 794, 797 (1st Cir. 1973) (rejecting collateral estoppel argument where second SDP decision based on evidence prior to first SDP decision as well as subsequent observations). Here, the second SDP petition relied not only on allegations contained in the first SDP petition, but also on disciplinary infractions committed by the respondent during his incarceration after the first SDP petition was dismissed.
Judgment affirmed.
By the Court (Grainger, Fecteau & Agnes, JJ.),